“irreconcilable differences” which have caused an “irremediable breakdown of marriage”
Original no-fault statute from California
Michigan No-Fault Statute
At least one spouse must be permanent resident of the state.
Varies from state-to-state (6 weeks to 2 years)
Most common is 6 months
Some forms of Alternative Dispute Resolution are used to assist with settlements.
Michigan Residency Requirement
Other Dissolution Forms
Annulments – legal recognition the marriage was invalid.
This is different than a religious annulment
Legal Separation – does everything a divorce does except:
The parties cannot remarry (they are technically still married)
Done for a variety of reasons (religious, tax, fringe benefits, etc.)
MI Annulment Law
Legal Separation Revocation
Note – legal separation is often referred to as “divorce from bed and board”.
It takes another court action to revoke the separation agreement.
Payment of sum by one spouse to another.
Sometimes referred to as spousal support
Lump sum or periodic payments
Terminates upon death of spouse
Can be modified upon showing of changed financial circumstances
Goal – equitable division of marital property
Lump sum or awards of specific property
Based upon contributions:
Monetary and service
Homemaking and childrearing are given value
Court will also look at duration of marriage and what property was brought into the marriage.
What's the Difference?
Property settlements are not
Dischargeable in Bankruptcy?
Property settlement obligation is
Alimony is not
Property Settlements are not
Some states allow for fault to be considered, some prohibit it, others give wide discretion to court.
Financial situation of requesting party, time necessary for requesting party to re-enter workforce, standard of living est. during marriage, duration of marriage, age/condition requesting party, financial status of non-requesting party.
Determining Property Settlements
Goal – equitable distribution of marital property
Courts are given wide discretion to achieve this goal.
Duration of marriage
Age, health, earning power of parties
The division of property in most instances is a result of a settlement agreement.
These must be voluntary
These are usually incorporated into the divorce decree
These are difficult to set aside
Property Subject to Division
Virtually anything of value is considered.
The Obvious – houses, cars, stocks, bonds, accounts
Also – pension rights, disability payments and medical insurance
And Increasingly Common - “good will” generated by business or professional practice
“Human Capital” - growing trend
Custody of Children
Courts do not distinguish between custody as part of divorce and custody between two unmarried people.
Right to make all decision pertaining to the child's upbringing, including education, health care, religion, growth and development.
Usually lasts until age of majority.
Presumption and Factors
Presumption in favor of birth parents
Presumptions as between Parents
Religion and Race
Lifestyles of Parents
Preference of the Child
Usually done outside of court by judge
Some states have age limit
Generally grated to non-custodial parent
Only denied when court finds visitation could harm child.
Court could still grant supervised visitation
Using “best interest of child” standard, courts can grant visitation rights to extended family members.
Child lives on a rotating basis with each parent
Parents have shared decision-making power
Permitted in a majority of states
Courts in a few states have ruled this not to be in the best interest of the child
Key consideration is willingness of parents to cooperate with each other
Must distinguish between joint legal and physical custody.
Enforcement of Custody Order
Parental Kidnapping Prevention Act
Makes clear that Full Faith and Credit Clause of the Constitution applies to custody orders.
Thus, parent cannot take child to another state to avoid custody order.
Strict enforcement is common
In re Clausen
Child Support: Overview
Support order usually runs to age of majority
Can be longer by agreement
Amount of support is set by statutory guidelines
General test is the amount should be reasonable considering the financial limits of the parents.
Reasonable needs include clothing, food, education, medical care and entertainment.