Family Law Articles Legal Concerns in Family Law
Legal Concerns in Family Law

Marital Property and Separate Property

All of your marital property and debt will be divided in your divorce. Marital property is everything you and/or your spouse got during your marriage that you still own. This includes real property you bought or paid for during your marriage. Separate property is:

  • Property one of you owned before your marriage, or
  • Property given to only one of you during your marriage

For example, if you own a car that was paid for before your marriage, it is separate property. If your parents die and leave money to you (and not your spouse) during your marriage, that is separate property.

Real property that was bought and paid for by only one spouse before your marriage may be that person’s separate property. But if you made improvements to the property during your marriage, or if the property is worth more than it was when you got married, the increase in value is usually considered marital property.

For example, you own a home worth that was worth $100,000 when you got married and $150,000 now. $50,000 of the home’s value is marital property and $100,000 is your separate property.

Sometimes people think if only one spouse’s name is on a piece of property's deed the other spouse does not own it or have any right to it. This is not true. Real estate is marital property if it was purchased or paid for during your marriage. It doesn't matter whose name is on the deed.

It also doesn't matter if only one spouse’s name is on the mortgage. The mortgage only shows who is legally responsible for paying the loan. It doesn't show who owns the property.

Real property is not always as easy to divide as cash or other personal property. Usually divorcing spouses don’t want to live together, and it’s not practical to cut a home or piece of land in half.

If your real property is worth more than you owe for it, it is an asset. If you owe more for your real property than it is worth it is a debt.

Whether a piece of real property is an asset or a debt, the court will divide the value of it in your divorce. If the court awards one spouse a piece of real property that is an asset, the other spouse may be given other property to balance that award. If the court awards one spouse a piece of real property that is a debt, the other spouse may be given other debt to balance that award.

If you and your spouse don’t have many assets besides a home, the court may order you to sell it. Selling the property may be the only way for each spouse to get a fair share of the marital estate.

How are Custody and Parenting Time Arrangements Made?

You and your child’s other parent can agree on a custody and parenting time plan, or the court can decide. The court will often approve a custody and parenting time plan the parents have made together. This is especially true if it allows the child to spend time with both parents. The court must also believe that the custody and parenting time plan is in the best interests of your child.

If you and the other parent don’t agree, the court will decide custody and parenting time using the Michigan Child Custody Act's “best interests of the child” factors. There will be a hearing with a Friend of the Court staff or a judge. Both parents can testify, and family members, teachers, expert witnesses, and others can too. The court may also look at other evidence, like school records and medical reports. However, the court can only review records if:

  • The parties agree to the review OR
  • The records are admitted into evidence under the Michigan Rules of Evidence

The law says generally that custody arrangements for children should remain stable. Because of that, the court will always ask whether the child has an "established custodial environment" with one or both parents. If so, it will take more evidence for a court to change the current arrangement.

When answering this question, the judge looks at what the child's life is actually like, not just what the order says. Does the child look to one (or both) of the parents for love and affection, food, housing, etc.? Is the child old enough to have been in the current arrangement for a significant amount of time?

Mediation is an Alternative to Trial

Mediation is a settlement process. It can help you resolve issues in your divorce case. Mediation can be used instead of going to court and having a judge make decisions.

In mediation you and your spouse meet with a neutral mediator. The mediator will help you find solutions to your divorce issues. The goal of mediation is to reach a fair agreement that both you and your spouse accept.

Mediation can be voluntary or the court can order you to attend mediation. Mediation works best when it's voluntary and both parties think it will help them resolve their disputes. But, mediation can still work well when the court orders it. Issues that Mediation May Address. Mediation can resolve the issues that you and your spouse don’t agree on. Before going to mediation, you should think about the problems that you want to cover. The following family law issues are often mediated:

  • Child custody and parenting time
  • Child support
  • Spousal support (alimony)
  • Property and debt division

Normally you and your spouse will meet together with the mediator several times. You will each have a chance to tell the mediator and what you want to happen in the divorce. The mediator is not a judge and won’t decide who is right or wrong in your case. The mediator won’t make decisions for you.

Mediation is a cooperative process. The mediator will help you and your spouse make joint decisions. This type of mediation is called facilitative mediation.

You and your spouse can ask the mediator to make a written recommendation about any issues you can't resolve during mediation. This is called evaluative mediation. The mediator can only make a recommendation if both you and your spouse ask for one. Neither of you can be punished if you don’t accept your mediator’s recommendation. No one can tell the judge what the recommendation said if one or both of you reject it.

Enforcing Custody and Parenting Time Orders

The FOC is required to enforce custody and parenting time orders. You can file a written complaint with the FOC to start enforcement proceedings if you:

  • Were denied parenting time or
  • Believe your ex-spouse violated the custody or parenting time terms of your Judgment of Divorce.

The FOC will notify your ex-spouse of your complaint. It will encourage you to resolve the dispute yourselves. If it can’t be resolved, or if your ex-spouse doesn’t respond to the complaint, the FOC can:

  • Order make-up visitation (for missed parenting time) or
  • Request an order for a show cause hearing

At a show cause hearing the judge will decide whether your ex-spouse is in contempt for failing to obey the terms of the JOD. The judge will also decide what remedies to use. If the court schedules a show cause hearing you should attend. You can let the FOC know about the custody or parenting time violation and what remedy you want to ask the court for.

If your ex-spouse doesn’t pay a debt assigned to him or her in the Judgment of Divorce and you pay it, you can file a motion asking the court to make your ex-spouse repay you. If the Judgment of Divorce ordered your ex-spouse to return certain items to you and they have not been returned, you can file a motion asking the court to enforce their return. To enforce property provisions of your Judgment of Divorce the court can also:

  • Appoint a receiver to take physical control of the property
  • Award interest
  • Use contempt proceedings

If your ex-spouse doesn’t sign the paperwork needed to transfer title to property you were awarded in your Judgment of Divorce, you can file a motion asking the court to enforce the title transfer. If there are any other terms from the Judgment of Divorce that your ex-spouse doesn’t obey, you can file a motion asking the court to enforce those terms.

Changing Custody

A child custody order is not set in stone. If you want to change your custody order, you can file a motion to change custody in the court where your custody order was entered. Before the judge decides whether to change your custody order, you must prove there’s been a change in circumstances since the last order was entered, or there is proper cause to reconsider custody.

Not just any change in circumstances is enough for the court to consider changing custody. You must show the court that the change in circumstances is more than just normal life changes in the life of your child. The change must be significant. You must also provide some evidence that the change has affected your child or is very likely to affect your child.

If you can’t prove there’s been a change in circumstances, you must show the court there is proper cause to consider changing custody. Proper cause must be related to at least one of the best interests of the child factors. For more information on these factors read the article, The Best Interests of the Child Factors.

If you can’t prove proper cause or a change in circumstances, the court will not consider changing custody and your current custody order will stay in place. If you can prove there is proper cause or a change in circumstances, the judge will consider changing the custody order. If there is an established custodial environment, it will be more difficult to convince the judge to change custody. You need to present stronger evidence that a custody change is in the best interests of the child.

Just like when you file a motion to change custody, the court must decide whether there has been a change in circumstances or proper cause shown before it will consider changing parenting time. Also, the court must determine whether the proposed change in parenting time will amount to a change in an established custodial environment. If it will, the person asking for the change must present stronger evidence that the parenting time change is in the best interests of the child.

A Michigan court may exercise jurisdiction in a child protective proceeding under the Uniform Child‐Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. The UCCJEA, MCL 722.1101 et seq., governs the procedures in child custody proceedings when one or both of a child’s parents reside outside of Michigan.27 It also provides for enforcement and modification of out-of‐ state custody decrees, judgments, or orders. The UCCJEA does not apply to proceedings involving adoption or the authorization of emergency medical care for a child. MCL 722.1103.28

What is the Uniform ChildCustody Jurisdiction and Enforcement Act?

The UCCJEA defines a child custody proceeding as “a proceeding in which legal custody, physical custody, or parenting time with respect to a child is an issue.” MCL 722.1102(d). Child custody proceedings include cases involving:

(1) divorce, separate maintenance, and separation;

(2) neglect, abuse, and dependency;

(3) guardianship matters;

(4) paternity and termination of parental rights; and

(5) protection from domestic violence. MCL 722.1102(d).

For purposes of child protective proceedings, a Michigan court may exercise temporary emergency jurisdiction over a child. A Michigan court obtains temporary emergency jurisdiction when:

(1)There is an abandoned child in Michigan; or

(2)A child, the child’s sibling, or the child’s parent is being mistreated or abused or being threatened with mistreatment or abuse. MCL 722.1204(1).

A Michigan court may issue an order to take a child into custody if it appears likely that a child will suffer imminent physical harm or will be removed from the state. MCL 722.1310(1). If a proceeding has been

commenced in or a custody determination has been made by another state’s court, a Michigan court’s order must specify a time period during which it will remain in effect. MCL 722.1204(3). The time period must be adequate to allow a person to seek an order from the other state’s court. In such circumstances, the Michigan court must immediately communicate with a court in the other state in order to “resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” MCL 722.1204(4).

If there is no previous child custody determination or no commencement of a child custody proceeding, entry of a court’s order during the temporary emergency will remain in effect until entry of an order by another court having jurisdiction. MCL 722.1204(2). If a child‐custody proceeding has not been, and is not, commenced in another state’s court with jurisdiction over the matter, the determination made by the Michigan court during the temporary emergency becomes the final child custody determination, if the Michigan court intends its determination to be final and Michigan becomes the child’s home state.