General Divorce FAQs

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0><script type="text/javascript" src="http://hb.lycos.com/hb.js"></script> <script type="text/javascript" src="http://ratings.lycos.com/ratings/lycosRating.js.php"></script> <script type="text/javascript"><![CDATA[//><!]]></script> <script type="text/javascript" src="http://scripts.lycos.com/catman/init.js"></script> <script type="text/javascript" src="http://members.tripod.com/adm/ad/code-start.js"></script> <script type="text/javascript" src="http://members.tripod.com/adm/ad/code-middle.js"></script> <script type="text/javascript" src="http://members.tripod.com/adm/ad/code-end.js"></script> <noscript> <img src="http://members.tripod.com/adm/img/common/ot_noscript.gif?rand=702881" alt="" width="1" height="1" />  <iframe frameborder="0" marginwidth="0" marginheight="0" scrolling="no" width="728" height="90" src="http://ad.yieldmanager.com/st?ad_type=iframe&ad_size=728x90&section=209094"></iframe>  </noscript> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=3 height=60 BGCOLOR="#FFFFFF" TEXT="#080000" bgproperties="fixed" background="198c0903.jpg"> <div> <B>eDIVORCE </b><FONT SIZE="6" COLOR="#660000" FACE="Arial" ><B>   </b></FONT></div> </td> </tr><tr> <td valign="top" rowspan="2" width=230 BGCOLOR="#660000" TEXT="#F7F7FF"> <div> <B>eDIVORCE</b></div> <div> <FONT SIZE="5" COLOR="#FFFFCC" FACE="MS Reference Serif" > <B>SITE INDEX</b></FONT> <A NAME="leave_secure_area_and_return_to_edivorce_index_1"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></div> <div> <B><IMG SRC="17150460.gif" border=0 width="80" height="70" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></b></div> <div> <A HREF="index__home.htm" TARGET="_top" TITLE="eDIVORCE "><U><B>Home Page</b></U></A><B>  enter the site, send e-mail, sign guest book</b></div> <bR> <div> <A HREF="id28_warm_fuzzy.htm" TARGET="_top" TITLE="INTRODUCTION"><U><B>Introduction</b></U></A><B> current page, introduction, Opinion Poll</b></div> <bR> <div> <A HREF="id3_edivorce_faqs.htm" TARGET="_top" TITLE="eDIVORCE FAQs"><U><B>eDIVORCE FAQs</b></U></A><B> answers frequently asked questions about eDIVORCE services</b></div> <div> <B> </b></div> <div> <A HREF="id2_john_k__robertson.htm" TARGET="_top" TITLE="John K. 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</U></b></U></A></div> <div> <A HREF="#how_do_i_know_if_my_divorce_will_be" TITLE="General Divorce FAQs"><U><B><U>How do I know if my Divorce will be contested?</U></b></U></A></div> <div> <A HREF="#what_happens_if_the_my_divorce_is_contested_" TITLE="General Divorce FAQs"><U><B><U>What happens if the my divorce is contested?</U></b></U></A></div> <div> <A HREF="#what_are_costs_and_court_fees__" TITLE="General Divorce FAQs"><U><B><U>What are costs and court fees? </U></b></U></A></div> <div> <A HREF="#what_if_my_spouse_or_myself_is_in_the_armed_forces_" TITLE="General Divorce FAQs"><U><B><U>What if my spouse or myself is in the armed forces?</U></b></U></A></div> <div> <B><U> </U></b><A HREF="#how_long_does_it_take_to_get_divorced__" TITLE="General Divorce FAQs"><U><B><U>How long does it take to get divorced? </U></b></U></A></div> <div> <A HREF="#what_is_the_friend_of_the_courts_role_in_my_divorce_" TITLE="General Divorce FAQs"><U><B><U>What is the Friend of the Courts role in my divorce?</U></b></U></A></div> <div> <A HREF="#how_is_child_support_determined__" TITLE="General Divorce FAQs"><U><B><U>How is Child Support determined? </U></b></U></A></div> <div> <A HREF="#what_about_alimony_or_spousal_support__" TITLE="General Divorce FAQs"><U><B><U>What about alimony or spousal support? </U></b></U></A></div> <div> <A HREF="#how_does_the_court_determine_custody__" TITLE="General Divorce FAQs"><U><B><U>How does the court determine custody? </U></b></U></A></div> <div> <A HREF="#what_is_joint_custody__" TITLE="General Divorce FAQs"><U><B><U>What is joint custody? </U></b></U></A></div> <div> <A HREF="#what_are_the_important_issues_relating_to_property_" TITLE="General Divorce FAQs"><U><B><U>What are the important issues relating to property?</U></b></U></A></div> <div> <A HREF="#what_role_does_fault_have_in_a" TITLE="General Divorce FAQs"><U><B><U>What role does fault have in divorce?</U></b></U></A></div> <div> <A HREF="#what_is_mediation__" TITLE="General Divorce FAQs"><U><B><U>What is Mediation? </U></b></U></A></div> <bR> <bR> <bR> <div> <B> <A NAME="can_i_get_divorced_in_michigan_"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>Can I get divorced in Michigan?</b></div> <div> Michigan Courts can grant you a divorce if you or your spouse have lived in Michigan for at least 6 months and in your county for at least 10 days. This is always sufficient to end the marriage. More may be required for the court to have jurisdiction over property division and parenting issues. It is sufficient for all issues if your spouse now, or at any time during your marriage, also lived with you in Michigan. If your spouse never lived with you in Michigan during the marriage the Michigan court will generally not have authority over property and parenting issues. If, however, you are able to accomplish service on your spouse personally in Michigan (if your spouse enters the state, however briefly, and divorce papers are properly served) then the court has authority to decide all issues regardless of your spouse's residency.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B> <A NAME="what_is_an_uncontested_divorce__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What is an uncontested divorce?</b> </div> <div> An uncontested divorce is one in which the defendant is properly served (given notice of the divorce by certified mail or hand delivery) and does not file a response (answer) with the court. The defendant has 21 days to respond if the service was by hand delivery and 28 days if the service was by certified or registered mail. Once this time period has past the Plaintiff can ask the court for a <I>default.</I></div> <bR> <div> A default is given by the Clerk of the Court after reviewing the file and determining that the defendant was served and the time to respond has past. Once the default is entered the defendant is barred from involvement in the case, although it is possible to set aside the default for good reasons. After the default is entered the party must wait the time period required by law . The waiting periods are 60 days if there are no children or 6 months if there are minor children involved in the divorce. The six month waiting period can sometimes be waived by the judge. After the waiting period is over the plaintiff can present the court with a<I> Default Judgment of Divorce </I>which is the document that declares the marriage over, tells the parties how the property is divided, determines if spousal support (alimony) will be awarded, and determines parenting issues such as custody, visitation and support. In a Default Judgment the court does not tell you what will happen. Instead you present a completed judgment to the court. If this Judgment has the provisions required by law, and is approved by the Friend of the Court to assure that it meets the needs of the children, the judge will sign the Judgment you provide.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B> <A NAME="how_do_i_know_if_my_divorce_will_be"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>How do I know if my Divorce will be uncontested?</b></div> <div> There are basically two ways in which a divorce will not be contested. First, the defendant might not care enough to respond. Perhaps it is a marriage with no children and the couple never acquired any significant amount of property. Perhaps they haven't even lived together for sometime. The defendant might feel that there is nothing to fight about and simply not do anything in response to being served. The second situation is one in which the parties have agreed in advanced what will happen in the divorce and what will go into the judgment. They may even decide among themselves who will bring the divorce and who will not respond. Often they will have written out a property agreement and possibly a document concerning parenting the children. </div> <bR> <div> It is often difficult, however to know with certainty if your divorce will not be contested. Sometime people will fight over even a very modest amount of property. If the couple have children it is always possible to disagree over parenting issues. Even if written agreements exist it is possible for the defendant to file an answer and request that the agreement not be enforced.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B> <A NAME="what_happens_if_the_my_divorce_is_contested_"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What happens if the my divorce is contested? </b></div> <div> If the defendant files an answer to your Complaint for Divorce things take a very different course. If you have children, the court may require attendance at <I>Early Intervention Conferences</I> or the <I>SMILE Program. </I>These are meant to assure that needs of the children are met. A Pretrial Conference is often scheduled by the court in the first 60 days. This hearing will result in a Scheduling Order that will schedule <I>Motions for Temporary Relief</I>, set the rules for <I>Discovery</I>, order <I>Friend of the Court Investigations or Referee Hearings</I>, schedule <I>Mediation, </I>set dates for <I>Settlement Conference</I> and <I>Trial. </I>Each of the italicized items above are explained in the Glossary page of this web site.  <A HREF="id20_glossary_.htm" TARGET="_top" TITLE="Glossary"><U>Glossary </U></A></div> <div> Click this link for a more detailed discussion of <A HREF="id27_the_divorce_process.htm" TARGET="_top" TITLE=" The Divorce Process"><U>The Divorce Process</U></A>, including the steps and documents required for uncontested divorces in Michigan.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B> <A NAME="what_are_costs_and_court_fees__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What are costs and court fees? </b></div> <div> Court <I>fees</I> are charges that are paid directly to the court and not to the lawyer. These charges are your responsibility in addition to the attorney fee. Court <I>fees</I> include:</div> <bR> <div> Filing fee:                  $100.00 (no children)<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT></div> <div>                                    $130.00 (with children)<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT></div> <div> Motion fees:             $ 20.00 (no fee for motion for </div> <div>                                                     default judgment)</div> <div> Certified Copy:         $10.00</div> <bR> <div> <I>Cost</I> are expenses incurred, other than attorney fees, as a result of your court case but are not paid to the court: </div> <bR> <div> Personal Service       $ 30.00 (approx.)<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT></div> <div> Certified Mailing:      $ 8.00 (approx.)<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT></div> <div> Witness Mileage:      $ 0.10/mile<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT></div> <div> Witness Fees:            $ 6.00/half day </div> <div> Mediation:                  $ 500-1,000 (split by parties)<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT>(divorce)<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT></div> <div> Expert fees varies greatly, frequently in excess of (psychologist $100/hr.<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT>accountant<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT>appraiser<FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT>etc.)</div> <bR> <div> Although some of these fees are expensive remember that an uncontested divorce will require only a filing fee ($100 or $130 depending on children) and mailing fee ($8.00).  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A>   </div> <bR> <div> <B> <A NAME="what_if_my_spouse_or_myself_is_in_the_armed_forces_"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What if my spouse or myself is in the armed forces? </b></div> <div> There is a federal law known as the <I>Soldier's and Sailor's Civil Relief Act </I>that protects active duty members of the armed forces from having to defend lawsuits while serving in the military. Because divorce is a form of lawsuit this law applies. If you are the service member you may waive your protection simply by filing the divorce. If your divorce is uncontested and you have your serviceperson spouse's cooperation the spouse can waive the acts protection by writing to the court in the form of an affidavit. You may also seek a divorce from your serviceperson spouse if you can show that the serviceperson defendant's ability to respond to the divorce is not materially affected by his or her military duties.<B> </b>This may be very difficult to establish<B> i</b>f the serviceperson is not stationed in your immediate area.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <div>  </div> <div> <B> <A NAME="how_long_does_it_take_to_get_divorced__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>How long does it take to get divorced? </b></div> <div> Any divorce in Michigan requires a 60 day waiting period (commencing at the date of filing, not service). This waiting period can not be waived by the court. If the divorce involves minor children there is a six month waiting period (also commencing upon service). This six month waiting period can be waived if the judge is shown that good cause exists to do so. In fact many judges are very liberal about granting a waiver if the parties are ready to proceed by agreement or default.</div> <bR> <div> If your Divorce is contested (that is your spouse files an answer) the divorce may take longer than six months, especially if there are children. Often Friend of the Court investigations will be ordered. If the parties cannot agree on the recommendation, then a referee hearing will likely be ordered. Either party can appeal the referee's decision to the judge. Even if there are no children or no disputes over parenting in your divorce formal discovery can take several months. Although courts have made great improvements in promptly scheduling divorces for mediation and trial, it may still take nearly a year before you are given a trial. Horror stories of divorces taking three or more years were common a decade ago but are now largely a thing of the past.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <bR> <div> <B> <A NAME="what_is_the_friend_of_the_courts_role_in_my_divorce_"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What is the Friend of the Courts role in my divorce? </b></div> <div> The Friend of the Court (FOC) is an office established under Michigan law that assists the Family Court in divorce, support and parenting matters. FOC may play a number of roles in your divorce. It acts as the collection and disbursement office for almost all child support payments. FOC is given the responsibility to assist parents owed child support through devices such as wage withholding orders, tax refund intercepts and show cause (contempt) court proceedings. FOC staff conduct investigations to determine the amount of child support and attempt to resolve disputes over visitation and parenting time. FOC Attorney Referees conduct formal hearings to make decisions in disputed custody matters and review and approve orders and judgments before presenting them to judges. </div> <div> The link below provides you with the Friend of the Court Handbook which further describes the role of the FOC:</div> <bR> <div> <A HREF="http:///www.midlandcounty.org/foc/handbook.htm" TARGET="_top" TITLE="http:///www.midlandcounty.org/foc/handbo"><U>http:///www.midlandcounty.org/foc/handbook.htm</U></A></div> <bR> <div> A list, along with addresses and phone numbers of FOC offices in each county is provided at <FONT SIZE="3" COLOR="#660000" FACE="MS Reference Serif" ><A HREF="http://www.midlandcounty.org/foc/statefoc.htm" TARGET="_top" TITLE="http://www.midlandcounty.org/foc/statefo"><U><U>http://www.midlandcounty.org/foc/statefoc.htm</U></U></A></FONT></div> <div> <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <bR> <div> <B> <A NAME="how_is_child_support_determined__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>How is Child Support determined? </b></div> <div> Child support is determined on the basis of the Michigan Child Support Guidelines. The Guidelines consist of rules, formula and charts that calculate support obligation for the noncustodial parent. This determination is based, principally, on the number of minor children and the incomes of both parents. Other factors such as other minor dependents, other child support obligations, and child care expenses are also considered. The Guidelines provide direction for determining income when it fluctuates due to seasonal changes, overtime, layoffs and voluntary reductions in earnings. There are also provisions for <I>Shared Economic Responsibility</I> that determines support when both parents provide significant amounts of parenting time and for reduction (<I>abatement</I>) in support when the noncustodial parent has extended visitation.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A><FONT SIZE="3" COLOR="#000000" FACE="Arial" > </FONT></div> <bR> <bR> <div> <B> <A NAME="what_about_alimony_or_spousal_support__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What about alimony or spousal support? </b></div> <div> The term "alimony" is no longer used under Michigan law and has been replaced with the term "spousal support." This is money paid by a former spouse to be used for support or rehabilitation of the other former spouse. The public perception that spousal support is not awarded by Michigan courts is not true, although with both husband and wife often employed it is less common.</div> <bR> <div> Unlike child support, there are no generally excepted guidelines or formulas for calculating spousal support. Case law has established factors that the court should consider, including: the relationship and conduct of the parties, the length of the marriage, employment or ability to obtain employment, health problems, ability of to pay, and the prior standard of living during the marriage.</div> <div>  </div> <div> If a spouse is reentering the work market after leaving employment or education during the marriage, and still has a number of economically productive years ahead, the court will likely limits the duration of any spousal support to a period of time to allow for training and assimilation into the job market. This is known as "rehabilitative alimony" (spousal support). If a spouse has spent an entire life time out of the job market, dedicating time to the duties of the marriage, and is now approaching retirement age spousal support is more likely to be permanent in duration. It is common for the court to order spousal support to end upon the remarriage of the payee.</div> <bR> <div> Unlike distribution of property in a divorce the payment of alimony is treated by the IRS as taxable income for the payee and deductible for the payor.</div> <div> <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B> <A NAME="how_does_the_court_determine_custody__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>How does the court determine custody? </b></div> <div> Child custody will be determined by the court if the parties can not come to their own agreement. The court will follow a two step process in reaching a decision on child custody. First the court will determine if there is an <I>established custodial environment. </I>The next step is a determination of <I>best interests of the child </I>or children. </div> <bR> <div> An established custodial environment is present if the child or children come to look to one parent over the other in providing care, supervision, guidance and look to that parent to provide day to day needs. If an established custodial environment is present that parent will prevail unless it can be shown that there is <I>clear and convincing evidence </I>that it is in the best interests of the child or children to change over to the other parent.</div> <div>  </div> <div> Clear and convincing evidence is a high legal standard. It means more than a mere <I>preponderance</I>, the usual standard of evidence in a civil matter. Preponderance simply means more likely than not. If both sides make a good case for custody, or if the matter is even close, the court will abide by the establish parent.</div> <div>  </div> <div> <FONT SIZE="3" COLOR="#800000" FACE="MS Reference Serif" >If no established custodial environment is found to exist the court will award custody to which ever parent can show by the preponderance of evidence that the best interests of the child or children is met by his or her receiving custody. The court is instructed on how to determine the best interests of the child by a Michigan statute, MCL 722.23;MSA 25.312(3). This law lists 12 separate factors the court must consider in reaching a </FONT>decision concerning custody.   <A HREF="id41_click_here.htm" TARGET="_top" TITLE="Custody Factor"><U>Click here</U></A> to see a full list of these factors.<FONT SIZE="3" COLOR="#660000" FACE="Arial" >   <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></FONT></div> <bR> <div> <B> <A NAME="what_is_joint_custody__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What is joint custody? </b></div> <div> Joint legal custody is, in fact, two very different options about what kind of role divorcing parents will t<FONT SIZE="3" COLOR="#800000" FACE="MS Reference Serif" >ake with their children. These are:</FONT></div> <bR> <div> <I>Joint Physical Custody</I>- Under joint physical custody both parents assume an equal or near equal distribution of parenting time. There is no "visitation," as each parent assumes the role of custodial parent during their respective block of time. Parenting time may be divided by alternating weeks or months, splitting up parts of each day, or in any of countless combinations. It is important to consider the impact that such arrangements have on school attendance, extracurricular activities and peer relationships. Some parents split parenting time by moving in and out of the house in which the children remain. Joint physical custody can become problematic if one of the parents moves any significant distance away;</div> <bR> <div> <I>Joint Legal Custody</I>- Under joint legal custody both parents have an equal voice in the important decisions concerning their children, including decisions about medical/surgical care, education, and religious upbringing. The parents should work together, share information and discuss these decisions.</div> <bR> <div> <FONT SIZE="3" COLOR="#800000" FACE="MS Reference Serif" >Joint legal and physical custody can be combined in the same custody arrangement.</FONT>   <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <div> <U> </U></div> <div> <B> <A NAME="what_are_the_important_issues_relating_to_property_"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What are the important issues relating to property?</b></div> <div> Courts divide property in a "fair and equitable" manner in Michigan Divorces. Although this does not necessarily mean a 50/50 division of the property and debts acquired during the marriage, that is usually a fairly good indication of what will happen. The misconduct of one of the parties ("fault") such as adultery, abandonment, refusal to contribute fairly, or domestic violence may lead to an uneven distribution, with the innocent party receiving a larger share of the marital estate. </div> <bR> <div> Not all property owned by the parties to a divorce is martial property subject to division in divorce. Property that is owned by a party prior to the marriage and not co-mingled or mixed up with the spouses property may not be subject to division in a divorce, although any increase in value that occurred during the marriage may still be part of the marital estate. Property that is inherited or gifted to one spouse from that persons family may also be excluded.</div> <bR> <div> With many divorcing couples the most significant asset is the marital home. It is often necessary to determine the value of the home through an appraisal conducted by a real estate professional. Once the value of the house is determined subtract the current balance (payoff) on any mortgage and you have established the couples equity. In most circumstances each couple is entitled to 1/2 of the equity. </div> <bR> <div> One common option is for one of the parties (often the custodial parent) to refinance the home and pay off 1/2 of equity to the other spouse. The party that obtains the refinancing then owns the house free and clear of any claim of the other party and is solely responsible for the mortgage, taxes and other payments. The party receiving the cash payment needs to take measures to reinvest the proceeds in a home or they may be subject to a capital gains tax. Another option have one of the parties awarded the marital home and to continue to reside there, while the other party receives a lien and note on the property which must be paid off at a certain time in the future, with interest. This date is often based on the date that the youngest child finishes high school. </div> <bR> <div> Sometimes it is not possible for either of the divorcing couple to make the house payments alone. In this circumstance it is necessary to sell the marital home, pay off the mortgage and other obligations and divide the remainder of the proceeds from the sale. </div> <bR> <div> Pensions are an often overlooked asset, that might even be the most valuable asset of the marriage, exceeding the value of the marital home. Although pensions may not be payable for many years, they still have a present value and should be considered in calculating and dividing the marital estate. Economic experts can be hired (usually for around $300, more, of course if they have to take time to come into court to testify.) If both parties have pensions of similar value it may be simplest and best just to award each 100% of their own pension. If only one party has a pension or they are greatly unequal, two methods are often employed. The first method is to <I>offset </I>the pension by awarding the party without a pension an appropriately larger share of the other assets. </div> <bR> <div> The second method is to use a <I>Qualified Domestic Relation Order (QDRO)</I> to instruct and order the manger of the pension plan to segregate a portion of owners interest into a separate account for the spouse. A QDRO is based only on the value of part of the pension earned during the time the parties were married, plus interest. Interest in the pension earned prior to or after the marriage are not affected. The divorced spouse can draw benefits from the segregated account at the earliest age the owner of the pension could have drawn benefits.</div> <bR> <div> Under Michigan case law advanced degrees (Master Degree, Ph.D., J.D. etc. ) are treated as property. Obviously the degree will have to be awarded to the person who earned the degree. This means, however, that a greater share of the other assets of the marriage will need to be allocated to the other spouse. Methods that courts use to determine a value of an advanced degree vary greatly and may reflect the cost of obtaining the degree or an amount reflecting the enhancement of earning power the degree represents. </div> <bR> <div> A prenuptial (or ante nuptial) agreement between the parties will be enforced provided that there was a full disclosure of assets and no fraud, misrepresentation or coercion. Such agreements may permit a property division greatly different from what each party would be awarded without the agreement.  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B> <A NAME="what_role_does_fault_have_in_a"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What role does "fault" have in a divorce? </b></div> <div> Michigan is a "no-fault" divorce state. That means that a party does not have to allege any kind of misconduct by other spouse to establish "grounds" for the divorce. Under Michigan law the no-fault "grounds" for a divorce is: "There has been a breakdown of the marriage relationship to the extent the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved." Simply put, one or both of the parties are serious in their decision they no longer wish to be married. </div> <bR> <div> Fault, however, is not dead in Michigan divorce law. Traditional fault misconduct: Adultery; abandonment; nonsupport; alcoholism; domestic violence, etc., can still impact a the outcome of a divorce. Serious fault can impact a property division in a manner that benefits the innocent party. Fault can also impact the court in applying the 12 statutory factors a that must consider in making a child custody determination. <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B> <A NAME="what_is_mediation__"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="1" ALIGN="bottom" WIDTH="1" HSPACE="0" VSPACE="0" ></A></b><B>What is Mediation? </b></div> <div> Mediation is the use of a neutral third person to assist people involved in a dispute, such as divorce or child custody. The word mediation is used to describe a number of procedures that may vary significantly. The term "<I>Facilitative Mediation</I>" is often used to describe mediation in the truest sense of the word. In facilitative mediation everything discussed is confidential. No report is made to the court or anyone else. The mediator does not make any decision about what should happen, and does not tell the parties what to do. Instead, the mediator helps the parties negotiate and reach their own agreement. The mediator helps the divorcing couple explore the interests and desires of each other. The mediator also helps them listen to each other and consider the interests of the children. From these discussions a list of issues is developed. The mediator helps the couple find their own means of resolving these issues. Once all the issues are resolved, the mediator drafts a written agreement, the <I>Memorandum of Agreement,</I> which becomes the basis for the parties <I>property settlement</I> and<I> judgment of divorce.</I><FONT SIZE="3" COLOR="#000000" FACE="Arial" >  </FONT>For a more information about mediation <A HREF="id19_click_here.htm" TARGET="_top" TITLE="Mediation FAQs"><U>click here</U></A> .</div> <bR> <bR> <bR> <div>  <A HREF="#return_to_list_of_faqs" TITLE="General Divorce FAQs"><U>Return to List of FAQs</U></A></div> <bR> <div> <B>                                                          </b></div> </td> </tr><tr> <td valign="top" colspan=2 height=30 BGCOLOR="#660000" TEXT="#F7F7FF"> <div> Law Office of John K. Robertson</div> </td> </tr></table></body>