The Michigan Court of Appeals provides authority with Butler v. Simmons-Butler, 308 Mich App 195 (2014), for the trial court to consider ordering a party to file joint taxes based on various factors including insufficient assets to offset future tax debt, the marital history in filing joint returns, any past history of tax problems with the other spouse, and the options for the unwilling spouse to be held harmless from any tax liability.
Michigan law is changing to abolish dower rights with Senate Bill 558. The right of dower assigned a 1/3 ownership interest to a married women to any property purchased by her husband. This right was exclusive to women. The laws regarding dower rights date back to 1787 per the case of May v. Rumney, 1 Mich. 1 (1847). This dower right was relevant in the past because a a married woman could not own her own real property. Dower rights helped prevent a married man from completely disinheriting his spouse. Therefore, all deeds listing a man have been required to list his marital status. The Judgment of Divorce and Judgment of Separate Maintenance will no longer require a dower provision based on PA 378 HB 5520 which amends MCL 552.101 Sec. 1.
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The decision to use child care, and the choice of providers, is typically the right of the parent caring for a child. In Ireland v Smith, 451 Mich 457 (1996), the mother and the child lived in an apartment in the university family housing unit. When she attended class, the child was cared for in university-approved day care. Her authority to select a child care provider was never questioned by the courts, although the Supreme Court noted that "actual and proposed child-care arrangements - whether in the custodial home or elsewhere - are a proper consideration in a custody case."
The Right of First Refusal is a highly disputed issue in many cases. It may be an agreed upon provision that the other parent has the right to spend time with the child prior to a paid care provider or another family member. The provision needs to be very carefully worded to determine if the provision is for a certain period of time or overnight only during a business trip, non-work related, whether family members such as grandparents may watch the child before the other parent has to be contacted, who provides transportation, whether a step-parent could spend time with the child, the age of the child when a care provider is no longer necessary, and many other factors to take into consideration when utilizing this provision. It works well with parents that cooperate and drives many high conflict cases back into court.
In Van Malsen v Van Malsen, unpublished opinion issued April 24, 2012 (Docket No. 303689), the Court of Appeals affirmed the Trial Court's decision to remove the provision from the Judgment and that the right of first refusal provision is “often more problematic then helpful.” Especially when the child is put in the middle and continually questioned by each parent whether a babysitter was used during the other parent's parenting time.
Spousal support may be granted when there is a discrepancy in income between each spouse. In most cases, spousal support is determined by agreement after review of income verses expenses along with other determining factors listed below. Most attorneys review support calculations generated by family law software programs to help determine a starting point for discussion based on income, tax status, education, age and the length of marriage. It is extremely helpful to prepare a budget during the divorce process to review cash flow needs compared to the division of income.
The agreement for spousal support may be non-modifiable as to the amount and duration or a combination such as a modifiable amount for a specific period of time if the parties agree to waive their statutory right to modify support. However, spousal support is always modifiable if the court determines the spousal support award based on “the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.” MCL 552.23(1) In Michigan, there are multiple factors that the judge will consider when deciding an award for spousal support, also known as alimony, including:
- Past relations and conduct of the parties.
- Length of the marriage.
- Ability of the parties to work.
- Source and amount of property awarded to the parties.
- Ages of the parties.
- Ability of the parties to pay spousal support.
- Present situation of the parties.
- Needs of the parties.
- Health of the parties.
- Prior standard of living of the parties.
- Whether either party is responsible for the support of others.
- General principles of equity.
The payments may be monthly or a lump sum payment when determined by agreement. Spousal support may be paid temporarily during the case and also after the divorce is final. Termination factors may include remarriage, death, cohabitation, or a specific length of time. Support may qualify for a tax deduction by the payer. The issue of spousal support is reserved if the judgment of divorce does not specifically mention spousal support pursuant to MCR 3.211(B)(4).
Please contact our office for more information regarding spousal support.