Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616.608.4634

Questions

Common Divorce Questions

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Question: What happens if I file for a divorce and my spouse does not want a divorce? 

Answer:  Your spouse will not be able to prevent you from obtaining a divorce. Even if your spouse tells the court they do not want the divorce, the judge will still grant your divorce.

Questions and Answers in divorce

Question:  What do I need to show the court to be granted a divorce in Michigan?

Answer:  Michigan is a no-fault state. You only need to show the court that there has been a breakdown of the marriage, that the objects of matrimony have been destroyed, and there is no reasonable likelihood that the marriage can be preserved.

Question:  Do I need an attorney to file for a divorce?

Answer:  You are not required to have an attorney to file or complete your divorce. However, as some divorces have complicated issues, it may be wise to consult with an attorney to learn what your rights and responsibilities are as it relates to your divorce. And if your divorce is complex, it may best to have an attorney represent you in your divorce matter to protect your rights to real property, retirement accounts, spousal support, debts, custody, parenting time, and child support.

Question:  How long will my divorce take?

Answer:  Under Michigan law, if there are no minor children of the marriage, the mandatory wait period is 60 days from the date of filing the complaint for divorce. If there are minor children of the marriage, the statutory wait period is six months from the date of filing the complaint for divorce. These statutory wait periods are defined in MCL 552.9(f).

Question:  Can I change my last name in the divorce action?

Answer:  After your divorce action is final, you cannot change your name and would be required to file a name change case.  I encourage all female clients to place a provision in the Judgment of Divorce giving them the right to change their name, but not requiring them to do so.

Question:  Will I be able to stay in the marital home during the divorce?

Answer:  While the divorce is pending, either party may reside in the marital home, unless the court has entered an order granting one party exclusive use and possession of the marital home.

Question:  What if I have been granted the marital home in the divorce, and my spouse will not sign a quit claim deed giving me sole ownership of the marital home.

Answer: You may obtain a certified copy of your Judgment of Divorce and record it at the recording office instead of recording a quit claim deed. 

Question:  Is trial necessary in every case?

Answer:  If you and your spouse agree on the terms of your divorce, you can complete a Judgment of Divorce, each of you sign it, and present it to the court for entry. A trial would not be necessary. In many cases, parties reach an agreement either through their respective attorneys or through mediation, making trial unnecessary.

AN ATTORNEY WHO UNDERSTANDS YOUR CIRCUMSTANCES. GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

At Schmitt Law, PLLC, our clients benefit from years of experience. We treat every client as an individual, taking the time to understand your unique situation, so as to best advise you on the steps you should take. Whatever stage your life is at, you can trust Schmitt Law, PLLC to guide you through the legal process with expertise and compassion, because we understand that family comes first. Contact Schmitt Law, PLLC today by completing our online contact form, or calling us at (616) 608-4634 to schedule a consultation.

Common Divorce Questions: What About the House?

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Common Divorce Questions: What About the House?

For most couples seeking a divorce, the house is their most valuable asset.  One or both of them may be emotionally attached to the house.  What I tell my clients from the beginning is that there are three options:

  • The husband gets the house.
  • The wife gets the house.
  • They sell the house and divide the equity.
    • It is important to understand why one party wants to stay in the house.
  • Is it emotional issues causing that desire?
  • Is it because that is where the children were born or raised?
  • Is this their first house?

There are generally a lot of emotional connections to the house, but you can make another connection to a new affordable home.  I try to help both parties to understand what is involved if one party insists on keeping the house and the benefit of selling it and dividing the equity.

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Can the Party Who Wants the House Afford to Keep It?

First Issue: If you or your spouse insists that for them keeping the house is the only option, we need to determine if you or they can afford the house after the divorce.  Meeting with a mortgage loan officer at a bank is the first step.  I want my clients to meet with a loan officer early in the divorce process to see if you can qualify for a mortgage loan on your current home.  If you cannot qualify, there is no sense in spending money on attorney fees fighting for a house that you cannot afford.  I also want to know if the other party that wants to retain the home will they qualify to ensure that, as my client, you get your part of the equity out of the house.

Second Issue: Even if the party can qualify for a loan in his or her own name and after removing the name of the other party from the deed, what about maintenance and upkeep?  Can a new budget accommodate the new loan payment and cost of maintaining the home?  Keeping the house but not being able to afford to maintain can make your post-divorce life miserable.  Ultimately, your goal for post-divorce should be to have a life that allows you to successfully move forward without an economic millstone around your neck.

Selling the House and Dividing the Equity

The best resolution is often to sell the house and divide the equity.  This should be decided early in the divorce process, so the house can get on the market as quickly as possible.  The couple may agree on the value of the home, but getting a professional appraisal is best.

Additionally, we do not want the house to go into foreclosure status, so the mortgage payments and upkeep must continue until the asset is sold.  We also must decide on what realtor to use.  If the parties cannot agree on these simple solutions, we will get the court involved.

For assistance in making this major financial decision, and assistance in moving on to a new chapter of your life, contact Schmitt Law, PLLC to schedule an appointment.

Common Divorce Questions: Is there Alimony in Michigan?

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Common Divorce Questions: Is there Alimony in Michigan?

Michigan law allows for spousal support, commonly referred to as alimony.  There is no set formula as to how the amount of support is determined.  Each case is decided according to its unique circumstances.

Factors Courts Consider for Alimony/Spousal Support

When one party requests alimony, the court considers many factors before deciding to order support, and if so, how much, and for how long.  Those factors include:

  • Past relations and conduct of the parties.  Although Michigan is a no-fault state, fault may be considered for the purposes of spousal support.
  • Length of the marriage.  The longer the marriage, the greater the likelihood support will be ordered.  A spouse in a short-term marriage, which is not defined in the law, will generally not receive support.
  • The ability of each party to work.  One party to the divorce who has not worked outside the home for a long period of time may not have the skillset to get a job.
  • Source and amount of property awarded to each one.  If the person requesting support is walking away with a lot of the assets, like equity in the marital home, an IRA, or retirement pension, the court is less inclined to award support.
  • Age of the parties.  This affects the ability of a party to find a job.
  • The present situation of each party.  This includes the earning potential of each party, whether there are minor children who need to be cared for, and other similar factors.
  • Health of the parties.  Does one spouse need to be cared for and the other one healthy and who has the ability to pay?
  • The standard of living while they were married.  The court does not want one spouse to be living quite well while the other one lives in poverty.  The court will fashion an order to equalize the standard of living of the party’s post-divorce.
  • Any other factor the court deems relevant.  This is a “catch-all” factor intended to allow the court to consider any factor to help make the decision based on the general principles of equity and fairness.
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How Schmitt Law, PLLC, Can Help

Although there is no set formula, at our Schmitt Law office we have a software program where we enter all the objective evidence.  It then gives us a ballpark amount of what we should request for spousal support, and for how long the client should receive support.  We work with these numbers to try to effectuate a settlement without court intervention.

If no settlement is forthcoming, we then prepare a trial brief that goes through all the factors in detail, so the court can see that our numbers are good ones.  We still understand that the judge has full discretion in determining the outcome of spousal support.

For more information and assistance with your divorce issues, contact us at Schmitt Law, PLLC.

Common Divorce Questions: I’ve Told My Spouse I Want A Divorce, Now What?

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Common Divorce Questions: I’ve Told My Spouse I Want A Divorce, Now What?

The first visit between a client and attorney will often begin with the client announcing, “I’ve told my spouse I want a divorce.  Now what?”  At Schmitt Law, PLLC, we first inform the client of their rights and responsibilities and then go over the most important aspects of how to proceed.

1) Filing the Complaint for Divorce

The first thing to consider is when to file the complaint for divorce petition and how it should be served on the non-filing spouse.  We encourage the client to respect their spouse, enough to tell them before they are served with divorce papers that, “I’ve retained an attorney and will be filing for divorce.”  Then, work out how to officially serve the spouse.

This will make the process smoother than if the first time the spouse hears about the divorce is from a process server.  If the spouse agrees to accept service voluntarily, we can even mail them the petition.

2) The Discovery List

We provide our clients with a list of documents we need to proceed with the divorce.  The more information the client can give us the easier it will be to proceed.  It is a comprehensive and extensive list and includes the need for all financial documents.  For example:

  • Tax returns.
  • Bank statements.
  • Financial documents showing retirement accounts, pensions, IRAs, 401(k)s, and similar accounts.
  • Deeds to real estate.
  • Financial documents from a business or professional practice.

It may take a while for client to pull these documents together.  If the client does not have access to these documents, then I get them from the other spouse or that spouse’s attorney.

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3) Choosing a Divorce Process

There are options for how the divorce process can proceed.  One choice is Collaborative Divorce.  We give our clients two copies of a flyer about Collaborative Divorce, one for the client and one for the spouse.  We also provide information about a website that has detailed information about how the collaborative process works and names of attorneys in their area who practice collaboratively.

If we decide to use the Collaborative Divorce process, then we do not file the petition until the attorneys are on board with the process.

After the other spouse has retained an attorney, we will talk over the phone about how to move forward.  If the collaborative process is not going to work, then we talk about the options of filing the petition.

Even if the parties decide against using the collaborative process, Kent County has made it mandatory that for the couple to go through mediation before they can get to a final hearing.

For more information, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Common Divorce Questions: How Long Does It Take to Get Divorced?

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Common Divorce Questions: How Long Does It Take to Get Divorced?

One of the most common questions divorcing couples ask is, “How long will it take?” The answer depends on how litigious the parties are.  The more issues they can agree upon between them means the less time they spend in court and the quicker their divorce can become final.  There are some statutory requirements that must be followed.

Divorce Requirements

Michigan law establishes waiting periods depending on the individual circumstances.

  • There is a two-month waiting period after the filing of the divorce petition for a couple who has no children.
  • There is a six-month waiting period after the filing of the divorce petition for a couple who has children.

A final divorce decree cannot be entered earlier than these established times.  Divorces generally take a lot more time when the parties cannot agree and court hearings are required for a judge to step in and make the decisions for them.  The only way divorce can really be final within these time frames is if the parties can agree on every issue.

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The More the You Can Agree the Quicker the Divorce.

When couples cannot agree on issues like how to divide the assets, child custody and visitation, child support, and spousal support, the longer the divorce will take.  Especially now with COVID-19 creating a backlog in court dates in most Michigan counties.

Finding common grounds on the these and other issues will mean getting to a final divorce settlement quicker.  This burden also falls on the attorneys who need to do what they can to encourage amicable agreements instead of dragging out the case with unnecessary litigation.

If the couple can set aside their emotions and treat the decisions like business decisions, the case can proceed faster to a final settlement.

Attorneys at Schmitt Law, PLLC, Can Help

Laurie K. Schmitt, founder of Schmitt Law, PLLC, is an Attorney, Mediator, and Collaborative Divorce lawyer.  When possible, she guides her clients through amicable divorce settlements so they can move forward with their life.  Contact Laurie to schedule a consultation.  You can discuss how long to expect your divorce to take and to understand how she can help you in your unique circumstance.

Common Divorce Questions: How Is Child Support Determined?

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Child support can be a contentious issue.  The way it is resolved in our jurisdiction is that all family law attorneys use the same support formula the court uses.  We have a software program at Schmitt Law, PLLC, that we use to determine the amount of support one parent pays to the other.

What is Child Support?

Child support is a court-ordered payment from one parent to the other to help support the raising of the children.  It stems from the legal theory that children have a legal right to financial support from both parents.  A parent cannot avoid paying child support by agreeing to have his or her parental rights terminated.

The Michigan child support formula determines which parent will pay support.  Some factors considered are:

  • The income earned by each parent.
  • The number of children that are supported.
  • How many overnights the children spend with each parent.

We put those numbers into our software program, and it objectively gives us a number.  The parents can deviate from that amount only if there is a legitimate reason to do so.

If one parent wants the other to pay a different amount, we must do a deviation addendum explaining why and file it with the court.  A friend of the court and the court must approve the request, and then it becomes the order of the court.

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Why Does a Parent Pay Child Support?

Some parents get confused about why they pay child support.  They may say “I buy everything for my kids.  Why do I have to give the other parent any money?”  The answer is that Michigan state law says it is the child’s right to receive support and the parents may not waive it.

The child support formula involves determining amounts to be paid by each parent for:

  • The uninsured portion of health care costs to be paid by each parent.  The custodial parent will have to reach a certain amount of out-of-pocket payments before that number is used.
  • Basic needs for food, clothing, and shelter.
  • School supplies.
  • Extracurricular activities.

If the parents want to agree on an amount, and the court confirms it meets the needs of the children, the parents can do that.

One thing the court cannot do is mandate how the receiving parent spends the money.  That parent does not have to keep an accounting of how the money is spent.  The paying parent cannot micromanage the spending habits of the receiving parent.

Am I am able to receive child support during the pendency of the divorce action?

On the onset of the divorce, either party may file a motion to establish temporary custody, parenting time, and child support.  This Order will remain in effect until the Court issues a new Order, or until the Judgment of Divorce is signed.

For assistance with your child support issue, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Common Divorce Questions: How Do We Keep the Cost Down in Our Divorce?

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Common Divorce Questions: How Do We Keep the Cost Down in Our Divorce?

A major concern of divorcing couples is the cost of the divorce.  The bottom line is that the more adversarial the couple is the more the divorce will cost.  The more the spouses fight about issues the more expensive the divorce will be.

Asking the court to settle issues that the spouses could settle between themselves costs money.  Motions are filed.  The other party responds.  Court time must be reserved.  All these things are costly.  The cost of divorce depends almost entirely on how much the couple fights and how willing they are to settle the issues amicably between them outside of court.

Avoid the “Tupperware Wars”

The cost of divorce is driven by the parties’ willingness to set aside their anger and to start making good and logical decisions.  Paying attorneys to fight with each other over something the couple could resolve between them does not make sense.

Spouses often argue over the division of petty items that can be easily replaced.  I refer to these fights as the Tupperware Wars.  There are sensible ways to divide or replace these items without court intervention.

For example, the parties fight over who gets an asset when it would be less expensive for them to let the other party have it and for them to go buy a new one.  People fight over things like who gets the Monopoly game?  Who gets the everyday dishes?  Who gets the Tupperware?  It is far less expensive to buy (new dishes, Monopoly game or Tupperware) than to pay for drawn-out court appearances where the court is forced to make a decision that neither party may be happy with.

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Suggestions for Dividing Heirlooms and Other Expensive Items

There may be heirlooms of sentimental value that cannot be replaced.  Perhaps the couple owns a grand piano or antique cars.  These items need to be appraised and a monetary value attached to them.  This still may not resolve the emotional issues attached to the items.

A spouse may need counseling to deal with the emotions involved in the divorce and over items with sentimental value.  That is not the role of the attorney who has no training in that area.  My office has a list of good counselors I feel confident recommending.  I work with my clients to find someone who is on their healthcare provider list.  In a divorce case it is better to have the attorneys work on the legal issues and allow those who are qualified to counsel to do so.

In reaching an out of court settlement the only time the court hears from the clients is at the final hearing.  The court will likely congratulate the parties on working well together to get it done without the court’s intervention.

For assistance on asset division and any other aspect of your divorce process, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.