Divorce Wisdom: Top 10 Myths in Michigan Divorce

MYTH ONE:
“I will get a better settlement if I file first.”

This is not true.

In Michigan, judges do not care who files for divorce first. Michigan law is not designed to reward one party for beating their spouse to the court house to file for divorce. However, there are certain circumstances in which it may be in your best interest to be first to file.

Here are some examples of when it may be a good idea to file first:

• If you are afraid for your safety or the safety/well-being of your minor children.
• If you are afraid your husband/wife is hiding, secreting or liquidating marital assets. Many family court judges will provide you with a mutual property restraining order that prohibits both you and your spouse from dissipating the marital estate during the divorce process.
• If your spouse is the wage earner and he/she has cut you off financially.

MYTH TWO:
“My spouse’s affair will impact my custody case.”

This is not true.

Typically, an affair will not impact custody or a parenting time schedule. The exception to this rule is when your spouse’s relationship is having an impact on the minor children that is not in the children’s best interest.

MYTH THREE:
“Michigan is a no-fault state, which means you can’t claim your spouse is at fault for the breakdown of the marriage.”

This is not true.

The term “no-fault” is used in Michigan divorce to mean that you are allowed to obtain a divorce, even if neither party caused the marriage to breakdown. Years ago, a person desiring to divorce his/her wife/husband had to prove that their spouse caused the marriage to deteriorate. A popular way to prove fault was to show that your spouse was having an affair. In olden times, private detectives were kept busy proving the type of fault necessary to enable a party to divorce. Nowadays you simply have to want a divorce to get one.

While fault is not needed to obtain a divorce, fault is still a basis to ask for more than half of the marital assets and is still a consideration in property division.

MYTH FOUR:
“Michigan is a state that divides divorcing couples’ assets 50-50.”

This is not true.

Michigan is known as an “equitable division” state. Therefore, a judge must divide the marital estate in an equitable manner. On most occasions, equitable will translate into an equal division of assets. However, equitable does not always, necessarily, mean equal. For example, fault in Michigan is a consideration in property division. Therefore, if one party is at fault for the breakdown of the marriage, a judge may award more than fifty percent (50%) of the assets to the spouse not at fault for the breakdown. However, in my experience, in order to receive more than half of the marital assets, your partner’s fault must be particularly egregious to warrant such a division.

MYTH FIVE:
“My house is titled in my husband’s name, so it is not a marital asset.”

This is not necessarily true.

In a divorce, title has little to do with whether or not an asset is marital. As a general rule, if the property in question, such as your home, was purchased during the marriage, it is considered a marital asset, regardless of whose name the property is titled to.

MYTH SIX:
“My spouse will be responsible for all of my attorney fees.”

This is not necessarily true.

I find that there is not one rule on how attorney fees will be paid. Typically, if your spouse accessed marital funds to pay fees, you should have access to the same amount of marital funds to pay your lawyer as well. In addition, you may be awarded a portion of your attorney fees, above an equalization if your spouse leaves the marriage in a better financial position than you due to income. If you earn less than your spouse, you should not have to pay your fees from your share of the settlement when your spouse is able to use part of his/her paycheck to pay his/her shares of the fees.

Reputable attorneys will want you to pay an engagement fee to begin the case. If you do not have access to marital funds to pay the initial fee, I typically tell potential clients that it is a good time to rely on friends and family for the retainer. It is a good investment in your future, so you want to make sure that you secure the best representation you can afford.

MYTH SEVEN:
“If my spouse and I split custody 50/50, I will not have to pay child support.”

This is not true.

Just because you have equal time with your children, does not mean you won’t have to pay child support. Child support is based upon the Michigan Child Support Formula. In calculating support, the court will consider the number of overnights awarded to each parent, the income of each parent, the cost of child care and who pays the expense, the cost of health insurance and who pays for it and whether a parent has other minor children to support.

Therefore, if you earn significantly more than the other parent, for instance, you will pay child support to balance out the households. Of course, if you do earn more and your children are with you half the time, your support obligation will be significantly less than if the children lived with the other parent the majority of the time.

MYTH EIGHT:
“If I am awarded joint custody, I will have my children half the time.”

This is not true.

In Michigan there are two (2) types of custody to consider. There is legal custody and physical custody. Legal custody deals with decision making on your minor child’s behalf. If you are awarded joint legal custody, you and your ex-spouse are required to mutually agree upon all issues concerning your child’s health, safety and welfare. If you and the other parent cannot agree upon what is best for your child, the issue will be decided by your family court judge.

Physical custody deals with where a child will physically reside. But if you are awarded joint physical custody of your minor , it does not necessarily mean that you will be awarded parenting time exactly one-half of the time. While some family court judges do believe that divorcing parents should equally divide their time with their children, technically the court is supposed to craft a parenting time schedule reflective of what is best for your child.

MYTH NINE:
“My spouse is making my life a living hell and therefore he/she will have to vacate the marital home during the case.”

This is not necessarily true.

As a general rule, both parties have a right to remain in the marital residence during the pendency of the case. It is a fact that divorcing couples do not make good roommates. Despite this reality, both people usually have a right to live in the home while they address their differences. Therefore, a judge will not make one party vacate the premises unless the offending party is a serious threat to the safety and welfare to the other occupants of the home.

MYTH TEN:
“I will not get support from my spouse once the case is filed.”

This is not true.

Judges want divorcing couples to maintain the financial status quo during their case. The financial status quo includes the payment of household expenses as well as the maintenance of insurance policies. If your spouse is foolish enough to cut you off when the case is filed, his/her stunt will certainly be reversed by the judge assigned to your case.

The best way to avoid falling victim to untruths in divorce is to arm you with knowledge. The best way to gain knowledge is to hire an exceptional family law attorney who can best navigate the system for you.