Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616.608.4634

Other Family Law Issues

What Are The Rights of Unmarried Parents?

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Common concerns for unmarried parents are custody, parenting time, and child support.  If parents are not married, how do they go about establishing custody, parenting time, and child support?  These issues are often complicated.  But when parents are unmarried, establishing custody, parenting time, and child support can be even more problematic.

The first thing to know is that when a child is born out of wedlock, sole legal custody and sole physical custody is automatically awarded to the mother.  This means the mother has complete authority to make all decisions regarding the child to include where the child will live, where the child will go to school, health care decisions, and extracurricular decisions.

Unmarried Parents

The award of custody to the mother does not change until the father of the child takes action to establish his rights.  In order for the father to establish custody, parenting time, and child support, parentage must be established.

Parentage can be established through an affidavit of parentage.  This may be signed by the parties at the time of birth of the child, or any time afterwards.

If an affidavit of parentage was not signed, then the father must establish his rights to the child through a DNA test. Either party may file a petition to establish paternity (mother of child, someone identified as the father, or someone who believes he is the father).

The court then grants either party an order requiring the father, mother, and minor child to complete a DNA test.  After a valid DNA test has been completed, and the results deem a specific man to the father, then the father can request the court to establish his rights to the child (custody, parenting time, and child support).

If the father does not believe a paternity test is necessary, then he must seek to have the court enter an order of filiation.  An order of filiation is a court order declaring a man to be the biological father of a child born outside a marriage.  Once an order of filiation has been entered by the court, the court now has jurisdiction to decide the matters of custody, parenting time, and child support on behalf of the father.

It is important to note that once the father is legally deemed the father of the child, he will now be financially responsible to provide for the child in the form of child support.

As the father of a child born outside of a marriage, it is critical to take action immediately.  Each passing day means you and your child will not receive time together to establish an important parent-child bond. As the mother of a child born outside of marriage, each passing day means you and your child will not receive the financial support you deserve.

KNOW YOUR RIGHTS – WE CAN HELP

At Schmitt Law, PLLC, we help parents work together to create a parenting plan that is in the best interests of your children.  Through mediation, collaboration, or litigation, if necessary, our knowledgeable Michigan family law attorney will be your advocate and help you through this difficult time. We know your legal issues are unique and special.  Call us, we will listen. To schedule a consultation or learn more about our services, contact Schmitt Law, PLLC online or call (616) 608-4634.

What Is Considered Marital Property In The State of Michigan?

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Is the house considered marital property?

Property in Michigan

If the house was acquired during the marriage and paid with marital funds, it is marital property.  If one party is to retain the house, the house should be appraised (considering the volatility of the current market).  Once the fair market value has been determined, then we subtract all mortgages and home equity loans from the value to determine the net value of the home.  That net value will be divided equally between the parties.  This means the person retaining the home will owe the other party one half of the net value.  If the house was owned by one the parties prior to marriage, then we have an issue of “separate property”.  Separate property means that one party purchased the house prior to marriage and may have a claim to the equity that was in the home at the time of the marriage.  If this is the case, then it needs to be determined what the value of the home was prior to marriage, minus any mortgage on the home, to determine the net value.  That net value may be given to the party before determining the true net value to be divided.   As an example:

Home purchased prior to marriage

  • Appraised value at time of marriage  $100,000
  • Mortgage at time of marriage                $50,000
  • Net value                                        $50,000

The party owning the home prior to marriage would be given credit for the first $50,000.00 of equity in the home before determining what would be paid to the other party.

Of course, this example is an over-simplification, and further information would be needed before Schmitt Law, PLLC could provide legal advice about your specific case. Also see my blog “Marital Property verses Separate Property” for more information regarding this subject.

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Are bank accounts considered marital property?

If the bank accounts were opened during the marriage, they are marital property.  It does not matter if each party contributed equally to deposits into the account.  This means the person who may have contributed more does not get a larger division of the account, as the entire balance is considered marital for the purposes of division of the account.

Are retirement accounts considered marital property?

For the purposes of this blog, I will provide a simple answer.  If the money in the retirement account was acquired prior to marriage, and no other monies were deposited into the account during the marriage, the account most likely will be classified “premarital” and remain the sole account of one party.  This means it will not be divided between the parties.

If the money in the retirement account was deposited into the account during the marriage, the account will be classified as marital and should be divided equally between the parties.

Note, that this is a complex subject, and should be thoroughly discussed with your attorney, as there are gray areas to this issue that will not be discussed in this specific blog.  Note that this is a complex subject, and the answer provided is an over-simplification of the subject.  Further information would be needed before Schmitt Law, PLLC could provide legal advice about your specific case.

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Are vehicles, boats, or other recreational vehicles considered marital property?

 If the vehicle was purchased during the marriage, it will be classified as marital property.  The most typical scenario is that one party will retain the vehicle, the equity value* of the vehicle will be determined, and the other party will receive credit for one-half of the equity value.  Another scenario is that the vehicle may be sold, and the proceeds divided equally between the parties.

If the vehicle was purchased prior to the marriage, and marital funds were not used to purchase or pay for the vehicle (or any loan), the vehicle most likely will be classified “premarital” and remain the sole property of one party.  This means that not equity value will be shared with the other party.

* Equity value: the market value of a specific item, minus any loan owed on the item = equity value

Are wedding rings considered marital property?

 Engagement/Wedding rings are conditioned on the marriage taking place.  If you were married, then the ring is considered a gift, and does not need to be returned to the other party.  If there was no marriage, then the ring must be returned.  In a divorce situation, each party retains their respective engagement/wedding rings as their sole personal property.

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Are pets considered marital property?

In the State of Michigan, animals are considered “personal property” for the purposes of property division.  Some judges in Michigan treat dogs like any other personal property, in which case the highest bidder for the animal should win. The traditional method is simply assigning fair market value to the dog.

Some judges will consider other issues in determining the division of animals:

  • Nature of the pet, i.e., companion, family pet, service animal. •
  • Sentimental value of the pet to one party versus the other.
  • In which party’s name is the dog registered?
  • Even if the property is separate (i.e., owned by one party before the marriage) it can be transmuted into marital property through use, care, feeding, walks, etc., by the other party.
  • Who purchased the animal?
  • Who is the primary caretaker?
  • Show receipts for veterinary care by one party.
  • Show licensing records.
  • Grooming receipts by one party.
  • Dog training classes by one party.
  • Who feeds the dog?
  • Who buys things for the dog?
  • Neighbors’ testimony that one party always walked the dog,

Also see my blog “Divorce “The New Custody Case – Pets!” for more information regarding this subject.

To discuss solutions with your property division issues, or any other aspect of your divorce process, contact me, Laurie Schmitt, at Schmitt Law, PLLC. I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Terms and Definitions

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Terms and Definitions

I receive many calls from potential clients that have been served with a Complaint for Divorce, or are wishing to file for divorce. For parties who have never been through the legal system, the terminology used in a divorce action can often be confusing and overwhelming. Below are basic legal terms associated with a divorce action.

PLAINTIFF: The Plaintiff is the party initiating the action (filing spouse).

DEFENDANT: The Defendant is the party whom the Complaint is filed against (the non-filing spouse).

SUMMONS: The Summons is the document that used to start an action. The Summons notifies the person named that an action has been filed against him. The Summons is issued by the Clerk of the Court in the county in which the Plaintiff is filing the action. The Summons indicates the name and address of the court, the names and addresses of the parties, and the name of Plaintiff’s attorney (if any).

SERVICE OF PROCESS: The service of the Summons and Complaint must be hand delivered to the Defendant by a third party (such as a process server), or through the U.S. Mail (certified mail/restricted delivery). Once service has been complete, an Affidavit of Service must be filed with the court. The Affidavit of Service indicates the date, time, and location of service on the Defendant. If the Defendant was served via U.S. Mail, the green card must be filed with the court.

COMPLAINT FOR DIVORCE: A Complaint for Divorce is the document that initiates the divorce proceeding. The Complaint for Divorce identifies the parties, states the claims against the Defendant, and petitions the Court to grant the divorce. If applicable, a Complaint for Divorce requests the Court to make a determination regarding custody, parenting time, child support, spousal support, and division of the marital property. The Complaint for Divorce must be filed with the Court, and served with the Summons on the Defendant. The Defendant will then have 21 days to respond the Complaint for Divorce.

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RECONCILATION AND DISMISSAL: Not all divorce cases filed result in a divorce. If the parties resolve their differences and wish to terminate the divorce action, an order of dismissal must be entered by the court. Once this Order has been, entered, the case is dismissed. In the future should either party wish to move forward with another divorce action, they must file a new case with the court.

LEGAL GROUNDS FOR DIVORCE: Michigan only provides for no-fault divorce. The Plaintiff will have to state in their Complaint for Divorce, and at the final hearing that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.

WAIT PERIOD – BEFORE THE DIVORCE CAN BE GRANTED: If there are no minor children of the marriage, there is a two month wait period. If the parties have minor children of the marriage, there is a six month wait period.

I Want Custody of My Children, but I Love Facebook: Why you should ‘unfriend’ Facebook during a custody case

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Why you should ‘unfriend’ Facebook during your child custody case

Although my West Michigan family law practice involves meeting with clients about a range of issues, child custody issues are often the most challenging for my clients. The toll child custody takes on the individual parties’ emotions, children, and finances is the number one reason why I encourage people to learn more about Collaborative Divorce before things become too heated.

Child custody cases can be gut wrenching for all of the parties involved, depending on the nature of the case. Unfortunately, it is the emotional nature of child custody issues that makes my clients’ misuse of social media one of my most challenging issues as an attorney.

I get it. It feels good—even if it’s just for a moment— to blow off steam with a piping hot Facebook post (that doesn’t actually mention your soon-to-be-ex by name, so it’s harmless, right?). And all of those Facebook ‘likes’ on our child custody issue frustrations and woes can feel very validating at a time when we probably need validation from our friends and family the most.

However, if you stopped on this post because you think you are about to be involved in, are in the middle of, or are even nearing the end of a child custody issue, please DO NOT update your Facebook status until you have finished reading this.

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Here are my top seven recommendations I make to my own clients who are going through a child custody dispute:

  1. NEVER slam your ex on social media. 
  2. In fact, I instruct all of my clients to refrain from any and all Facebook updating, commenting, liking, or sharing that can be seen as making a comment on the case or disparaging the other party. Believe it or not, as good as the short-term adrenaline rush might feel to post your true feelings about the case on Facebook for the world, and especially your ex, to see, that’s all that it really does is heat up an already difficult situation.
  3. Better yet, stay off Facebook until your case is complete. Don’t use Facebook to share your life with the world while your case (and your child’s and your future) is pending with the court. It’s simple: if you stay off Facebook, nothing you say, innocent or otherwise, can be used against you, because it’s just not there to be found.
  4. If you decide to stay active on social media during your child custody dispute, remember that your social media photos are worth more than a thousand words. Never post pictures of themselves in bars, drinking alcohol, at parties, and definitely NEVER using illegal substances. What you may see as innocent pictures of a fun night out with friends, are now being shown in court as a way to support your ex’s effort to depict you as the worst parent in the world.
  5. Remember: If it is on your Facebook account, your judge will see it.
  6. Social media privacy is an oxymoron. If you think none of this applies to you because you are smart and have your social media accounts set to private, think again. You would be amazed at how many of my clients’ “friends” have been willing to provide their opposing party with access to their “private” social media posts and photos.
  7. But if your account is not set to private, your ex’s attorney IS regularly reviewing your activity. I know in my own practice I have looked at numerous Facebook accounts and have found photos including drugs and drug paraphernalia laying about the house, photos of people who are visibly intoxicated, photos that undoubtedly show an adulterous relationship, and read volumes of derogatory comments about the other party that go directly to the comment author’s own fitness as a parent.

The real take home point, in case you have missed it, is that when you are fighting for your children, stay away from Facebook and other social media while your child custody case is ongoing. What you post can be twisted and turned against you. Getting through a heated custody case is hard enough. There is no reason to make your attorney’s job as your advocate harder because of a ridiculous Facebook post.

Before you post that comment or photo on Facebook, remember your end goal: custody of your children. Facebook will be there for you when it’s all over.

Have you Received a Show Cause Hearing Notice?

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Have you Received a Show Cause Hearing Notice?

Have you received a notice to appear at a show cause hearing from a Michigan family court? Not sure what a show cause hearing is, or what can happen at that hearing?

When a party to a family court order fails to follow its terms, the other party can petition the family court to enforce the order, and secure the non-complying party’s compliance through a show cause action. VIOLATIONS: There are many actions that may lead to a violation of a court order.

Violations of court orders come in many forms, the most common are for failure to:

Provide information to FOC, the court, or the other party SANCTIONS In Michigan, if you are believed to have violated a court order, you may be sanctioned for your actions. Violation of a court order is a serious offense, one in which the judge can impose the following sanctions:

  • Grant you additional time to obey the order
  • Order that you provide make-up parenting time to the other party
  • Require you to pay a fine to the court • require you to pay the other party’s attorneys fees
  • Order that you go to jail
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THE PROCESS:
The party seeking relief from the court files a motion to show cause. This motion asks the judge to remedy the non-compliant party’s action. If the court believes that the party may have disobeyed a court order, then the court will issue a show cause order, and schedule a hearing requiring the party to appear in court on a specified day and time. At this hearing you need to be prepared to explain to the court why you should not be found in contempt of court for violating the order, and be able to explain why you have failed to abide by the terms of the court order.

REPRESENTATION:
If you have received a notice to appear at a show cause hearing, you should discuss your options with an experienced attorney. It is your right to retain counsel to represent you at this hearing. Don’t go it alone. Schmitt Law, PLLC will make sure you fully understand the proceedings and your options, and will advocate for your position to make sure you are heard during this process.

Change of Domicile and the 100 Mile Rule

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Change of Domicile and the 100 Mile Rule

Are you contemplating moving out of town or out of state with your child? Will this move be more than 100 miles from the child’s current legal residence? Has the court awarded you joint legal custody or sole legal custody?

 Before you decide to move with your child, you should review your court order. Did it grant both of you joint legal custody of the minor child? If so, you will be unable to move with the child more than 100 miles from the child’s current legal residence without consent of the other parent, or permission from the court. The child’s legal residence is where each the parties lived on the day the order was signed by the judge. This is called the 100 Mile Rule.

Did your court order grant you sole legal custody of the minor child? If so, this is the exception to the 100 Mile Rule. If you have sole legal custody, you will not have to seek the consent of the other parent, or the permission of the court if you want to move more than 100 miles from the child’s legal residence. You have determined that you have joint legal custody of the minor child. And let’s assume the other parent will not consent. You will need to pursue your request for a change of domicile through the court. The court will review the factors found in MCL 722.31 to determine if they will grant your request for a change of domicile.

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MCL 722.31 Factors:

  1. Whether the legal residence change has the capacity to improve the quality-of-life for both the child and the relocating parent.
  2. The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
  3. The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
  4. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

When applying these factors, the court’s main focus is whether the move will improve the quality-of-life for both the child and the relocating parent, not just the parent. The focus must remain on the child. Courts want to hear about quality-of-life issues such as:

  1. The quality of the schools in the proposed location. The court will determine if the school is comparable to the child’s current school.
  2. The availability of extra-curricular activities. If the child is currently involved in extra-curricular activities, what is the availability of similar activities for the child in the proposed location.
  3. The presence of extended family in the current location verses the proposed location.
  4. Any other factors that provide the court with specifics of how this move will enhance the child’s life.

Because of the complexity of a change of domicile case, it can be difficult to represent yourself. Furthermore, you can expect that the results for a change of domicile case will vary significantly from court to court, as courts interpret the standards for a change of domicile very differently.

To conclude, it is best to seek the advice of a family law attorney versed in change of domicile cases prior to you filing any motion seeking to move with the child.

Contract to Make a Will

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Case Study regarding a plaintiff that was in a long-term relationship with Anthony Bzura (Tony) that lasted over 40 years, but the two never married.

339305 PELLIE MAE NORTON-CANTRELL V ANTHONY BZURA TRUST AGREEMENT
Panel: DBS DAS MFG 
Lower Court: WAYNE PROBATE COURT, No. 15-811336-CZ
Opinion – Per Curiam – Unpublished
20181023_C339305_39_339305.OPN.PDF

Plaintiff was in a long-term relationship with Anthony Bzura (Tony) that lasted over 40 years, but the two never married.  When Tony’s health began to deteriorate, plaintiff became his caretaker.  According to plaintiff, Tony always promised to “take care” of her, and indeed, plaintiff received assets from Tony totaling over $300,000 in the time leading up to and following his death in June 2015.  However, plaintiff believed that Tony’s promises involved a much greater sum, and in July 2015 she filed a claim against his trust for over $2,700,000. The trust disallowed the claim, and plaintiff brought suit in probate court seeking to recover against the trust under a variety of contract theories. 
 
The probate court determined that MCL 700.2514, which provides that a contract to make a will or devise must be in writing, barred plaintiff’s claims.  Accordingly, the probate court granted defendant summary disposition.