Week 3 maybe the week on notebook paper

Marriage Defects that can render the marriage unexistent1. Void marriages in the eyes of the law these are defects that are so serious and severe that the law says that the marriage could never come into existence so it never did come into existnence. These defects go to the area capacity: If your are said to fall short on any capacities issues you lack the capacity to marry and if you go ahead and marry anyway the marriage is said to have a defect that is so serious that makes it impossible for the marriage to really exist. 1a. Examples of lack of capacity are a. bigamous marriage- if you are married to person 1 and the person is still alive and you did not get an annulment or a divorce and then you marry person 2, the marriage to person 2 is void. The law says you lacked capacity to create a marriage with person 2 ie another marriage so therefore you did not create another marriage with person 2 it never exitsted. Every state makes doing this a felony. b. Marry your prohibitive relatives and enter an incestuous marriage. So if you lie about it on a marriage license app form and indicate that you are not brother and sister and get married and you are indeed brother and sister that marriage is void because you both lacked the capacitiy to enter into that marraiage. If you marry your MOM, DAD, AUNT,UNCLE, GRANDPARENTS,SIBLINGS, FIRST COUSIN these are void marriage. Not all states prohibit you from marrying first cousin. Remember if you marry your first cousin in a state that allows you do to so and you come back to Mchigan which is a state where this is illegal in the eyes of the law this will be okay as Michigan will recognize the validity of this marriage as long as it was done legally in another state.

c. If you lie about you age and get married when you are to young to get married. If you say you are 18 which is the age of consent in MI when you are actually 14 and get married that marriage is void because you lacked capacity to get married. (most jurisdicions the age of consent in 18 but not all) the age of consent in MI is 18.

The law perceieves all of these defects as being so serious and contrary to the laws or policy of a given jurisdiciton that society cannot allow the marriage to take place so it is said to never have taken place. Challenges to void marriage almost never come about in an anulmant proceeding but comes up as a probate issue when someone seeks to inherit. o Example: Man is marries to woman 1 in a long term marriage and they have adult children. The two of them have been separated for years and years but they are still married. They never got an annulment or a divorce and woman 1 is still alive. The husband has made some money and needs to needs someone new in his life so he marries someone a lot younger then him and the new wife thinks because he is old he is about to die and so she will get some money. Then he does die and dies without a will and person 2 (the new wife) thinks she will inherit as the former spouse but wife 1 comes out of the woodwork saying he was still married to me. The probate court will then have to decide whether the second marrage was a viod marrage. In order to do that they have to find out whether the first marraigae was annulled, divorced, or the first wife is dead. If not then the second marriage is void and she is not in the picture. There are certain characteristics in a void marriage that are not true in any other aspect of family law: In VOID marraiges the validity of the marriage MAY be challenged by third parties. This is not allowed in other areas. The void marriage may be challenged after the death of either or both partners to the marriage even after both parties are dead. This is usually what happens. Lastly, the only defense to a challenge to a void marriage is the truth. So in other words back to the example of the second wife who finds herself in probate court after her husband dies and argues that she is the surving spouse and the first wife is alive and says theire was never an anument or a divorce. The second wife would have to have a judgment that proves that there was either an annulment or divorce before he married her.

What if the second wife finds out that her husband is already married and wants get out of the marriage? Most of the time you will not see an annulment proceeding because its easier to get a divorce today. Example: There was one case in inham county where the woman found out that her husband was already married before he married and was still married. The attorney filed a complaint saying that the marriage was void and the judge said she could not order a judgment for a divorce that never existed. This was not correct because you need some document terminating this relationship because the parties at this point have joint accounts and property. So they withdrew the complaint got a different judge and got a divorce.

2 Voidable Marriages 2a Annulment- annulment procedures usually happen in the case of voidable marriages. you dont see that many annulments anymore because it is so easy to get a divorce in the U.S. because all states have someway to get a no fault divorce. The only challenging state is NY state. In the past is was very difficult to get a divorce. Now you dont see as many annulments because society no longer looks down on you especially women who get a divorce.

2b Reason to Get Annulment: People feel for religious reasons it will be more acceptable also they feel pshycologically it is easier for them to just walk away and say this never happended.

You get an annulment because the marriage is Voidable not VOID (i.e. no marriage ever existed so annulment isnt required).

2c. Voidable Marriages-

in order to have a valid marriage there must be Mutual Voluntary Agreement to marry a fundamentally a marriage is a contractual relationship between the two people in the marriage.

So voidable issues deal with contractual problems with the marriage which include:

fraud in the inducement to marry-If a person is fraudulently induced to marry and they cant be said to have willingly mutually voluntarily agreed to the marriage ie they were tricked so not knowing decision to enter marriage this is voidable and there is a ground for an annulment. In the past every jurisdiction required that you had to have a ground for getting a divorce. i.e. you are saying to the court that you want to be released from this marriage because there is something going on in the marriage that makes it impossible for the marriage to continue ie. Abandonment, adultery emotional cruelty physical cruelty. These were grounds for divorce. Now what we have done with no fault divorce is made it possible for a person to get a divorce by saying we have lived separate and apart for a certain number of months and/ or there has been a breakdown in the marriage. To get an annulment you still need a reason or ground to grant the annulment. Fraud in the inducement examples include:

a. fraudulent or false allegation of parenthood or false allegation that woman is pregnant. This occurs when the a pregnant woman tells the man you got me pregnant so you have to marry me. So based on that and ONLY on that the man marries her. If she knows shes not pregnant and is lying to him to get him to marry her and only because of this lie he is going to marry her. This is fraud in the inducement. She knows a fact and lies about it and based on that lie he agrees to marry her. And but for that he would not have married her ie if he had known the truth that she knows she is not pregnant or that she knows that she is pregnant with someone elses kid he would not have married her. If he has already proposed and they are halfway up the isle and she says by the way im pregnant, the pregnancy is not the reason why he married her he was going to marry her anyway. He may regret the fact that she is pregnant and if the child is not his then he may really regret marrying her but the pregnancy was not the reason why he married her. So that is not fraud in the inducement. The key to fraud in the inducement is knowledge on her part, failure to share that fact with him and a reiiance on the false information and marrying her soely because of this false information. b. False allegation by the woman of being a virgin. And not pregnant because couple has not had intercourse before marriage o Example lets say a couple who hasnt had sex and he says he wants to marry her and she says yes knowing that she is pregnant with someone elses child. If he had known that he would not have have

married her he has been fraudulently induced to marry her by not knowing that she was preganant with someone leses child. This is not so much a virginal issue it its her saying that she is not pregnant. So this would more under fraud in the inducement by the woman claiming to not be pregnant. ( she falsely conceiled that she was pregnant and she knew that she was pregnant from another man because she had never had a sexual relationship with her husband and that would have been a ground for an annulment because if he had known that he would not have married her she knew she was preganant and the child was someone elses kid and she didnt share that info with him so he was fraudulently induced into that marriage beleiveing that she was pure virginal and not pregnant with someone elses child

In the past every jurisdiction reqired that the parties be tested for sexually transmitted diseases. Before you could apply for your marriage liscense and if you tested positive you would not be permitted to have a marriage liscense and theoretically you would not be permitted to marry and theorietically you would not be having sex and transmitting the disease. We dont do this anymore but it still plays a role in this aspect of annulment wich is if you have an std and you dont share it with your fianc that is fraud in the inducement to marry. Fianc has the right to expect that you will not give them some kind of potentially lethal disease.

c. concealment of sterility or ipitancy- For people of child bearing age the law will allow us to go into a marriage with expectation of being able to have children. If you know before marriage that you are not able to bear children or have children if you are a man and you dont tell fianc this is fraud in the inducement to marry. We are not talking about someone your professors age being able to have children, because obviously she cant have kids because because he knows her age. Therefore she does not need to tell him that she cant have kids. So if the person has had a visectimy or histerectamy or some disease that mkes them steril you must tell the potential spouse. We are not talkinga bout a couple who sits down before the marriage and says id dont want kids and both parties agree to this. We are also not talking about the couple of child bearing age who gets married an try and try to have a child and find out that they cant. We are talking about the someone who knows before they got married and did not tell the potential spuse because the other person probably would not have married them becise they wanted kids. This is fraud in the inducement to marry. d.. Concealed intent not to consummate the marriage.The law will also allow us to enter into a marriage with the expectation be able to have sex with our spouse. If one partner knows that they dont want to have sex but goes ahead with the marriage that is fraud in the inducement to marry.

If you have sex with a potential spouse and decide never to have sex again but dont them before they get married this is fraud in the inducement o Example: a person who is gay but doesnt want to tell they are gay and they get married to someone to try to cover the fact that they are gay so they get married to gain access to citizenship but dont intend to have sex this is fraud in the inducement.

We are not talking about the couple who has sex once and they both mutually decided that they dont want to have sex again but want the companionship and get married, they are fine. *****difference between VOID and VOIDABLE marriages is that void marriages are contrary to society wishes for marriage therefore there is some public reason or societal reason to say those marriages are void. With Voidable marriages these are personal issues. Most of the time people arent going to know whether the baby born isnt thiers unless the other person tells them. Or the person getting married wont know if the other person has a disease unless they tell them or that you dont want to have sex. People arent going to know this unless you tell them and society doesnt really care about these issues. So unless someone brings this to the attention of the court the marriage sails along and thats the end of it. If the couple decides to never have sex again and they get married with that understanding the marriage is fine under the law and society. If one of the parties to the marriage has reason to contest to one of these issues this is grounds or justification for an annulment.

Non fraud reason for an annulment Marriage thats entered under force, duress ie your parent promised you in marriage at birth and the parents make her go through with it or a bride sold for goods. This goes back to the concept of mutual, voluntary agreement 2 marry which obviously didnt happen so the marriage is voidable. Voidable marriages may only by challenged by the parties to the marriage and therefore when one of the spouses die thre is no way to attack the marriage and it will be deemed to have been a valid marriage. The marriage can only be attacked during the life of the parties If a voidable marriage is challenged by way of an annulment proceeding there is a defense of the truth but there are also contractual defenses which include

Estoppel and latches.- you put up with the issue for all these years so you cant complain about it now. So no annulment because the marriage lasted as long as it did. Example: if after 25 years of marriage and they have a couple of kids and then one of them says there gay and they are leaving this is not a voidable marriage and you cant get an annulment because the marriage lasted as long as it did.

No set time that action must be brought to be valid ie in order to get an annulment but the time period must be reasonable. So between 18 months 2 yrs.

******EXAM QUESTION EXAMPLE****** Gary and Joann were married 40 years ago aka they have been married 40 years and joann goes to an attorney and says she want an annulment because hse said she always thought they would have sex but they just never got around to doing it and now he just doesnt want to. ANSWER 40 years is a long time to wait to complain about not having sex and to try to get an annulment you had to have noticed this a long time ago so too late!!!! Outcome of annulment- the marriage is erased and is deemed to never have existed. Annulmnent Procedure In MI and pretty much everywhere else the procedure is comparable to a divorce procedure except that you have to allege one of the grounds or justifications and you have to be able to prove it. Proving allegations can be hard- someone having sexual relationship before marriage Children are deemed legitimate if marriage is annulled because protecting legitimacy of children is important. If children are involved there will be custody, child support, parenting time provisions. If there is property it will be divided If there is a perpetration of fraud the perpetrator will not be rewarded o Example: if woman targets some guy who has a lot of money and a nice house and she lies to him and says he got her pregnant now he

needs to marry her and he does but finds out that she isnt pregnant and never was and lied about it she will not get any property because she was the perpetrator of fraud ie she created the fraud for a reason. o Main diffence between divorce and annulment is that you can walk away from an annulment saying this marriage did not happen.

Nevada gives more leaway in terms of having annullments in that they allow annulments based on the reason of mistake which means you really dont have to prove much of anything . in terms of there marriage laws there is no waiting period from time that you get marriage license and actually get married ie you get the marriage license on the spot Annulment for mistake catches/requirements- the annulment proceeding must take place in nevada it has to take place w/in 90 days of the marriage.

Week 6

Establishing Child Support:

Children need and are entitled to be supported by parents. The law presumes parents if there is an intact family will be providing for childrens support unless there is a neglect proceeding because it is obvious that that the child in not being provided for. There is no situation where a child is legally responsible for their support even if the child is making money there parents are still legally responsible for there support.

A. Situations Where Parents Divorce Or if They Were Never Married o If there is a divorce or parents were never married there must be a means for both parents to provide for child. This is by child support. All the rules and regulations with regard to child support apply to any child support order i.e. divorce, paternity cases as well as all support cases. Course observed custody through a divorced couple example

B. Determining how child support is paid: By federal mandate. There are no jurisdiction for family law except for state jurisdiction. Child support is a state matter ie no federal jurisdiction, but the feds in department of human services were concerned about kids not being supported by parents who were on government assistance which is federal dollars. So they created rules that all states must follow. Because they knew if they didnt they wouldnt have received federal aid, therefore the state wouldnt be able to support the families that are in need or provide public assistance because the state by itself doesnt have enough money. Everything relating to child support including establishment and enforcement has federal regulation. o Example couple 1 is getting a divorce and there are two kids under 18 child support must be paid

The law presumes that the custodial parent (the person who the parent lives with) is providing for the children i.e. giving them rules and regulations. The support given by the custodial parent is a support that you cant put a dollar value on. But the person that is the NON custodial parent has to have a specific dollar amount. Either parent at any given time can be the custodial parent Formula for Establishing Child support Amt o o o Governed by state courts administrators office (SCAO) enforcing agency will have financial investigator attorney will have software to calculate support determine gross income of each parent Things not considered income is means tested income like welfare, public assistance for dependant kids thats not income. Or general assistance because you are not able to take care of yourself, or supplementary income like you being disabled and receive supplemental security income, or social security disability income then these are not income. Other than these Everything Else is income. Including interest from accounts, lottery winnings, and even illegal handlings are income, social security

retirement benefits, pensions, paychecks, inheritance, workers comp. 2nd step Determine the adjusted gross income of both parents. The gross income minus deductions you dont have control over, like taxes are taking out to determine your adjusted gross income, social security. Or mandatory union dues which you have to pay working at gm, or youre an attorney and you have to pay bar dues. Voluntary deductions such as automatic donations every month ARE included in your income and thus do not fit in this category 3rd step determine adjusted gross income of both parents. If either parent has a child from prior relationship that they have to pay child support for then that child support amount is taken off the top of her gross income. If the person has a child from a different relationship that she has custody of that child and isnt ordered to pay child support than the formula will take into consideration the custodial parents income, number of kids she has custody of and takes into consideration the amount of support she gets for these children if any and comes up with an amount to be deducted. this amount is either reflected dollar for dollar for an amt reflecting another child support order or an amount reflecting the income and number of biological children living in your household this is a credit deducted to reflect that you have biological children or legally adopted children living in your household that you are responsible to support 4th step determine custodial arrangement by look at the number of overnight stays that child is going to have with each parent and based on that as well as the number of children. Then you can determine the amount of support that the non custodial parent has to pay

SCAO is mandated to review child support formulas every 2 years If there is true joint physical custody the higher paid parent still pays all the time. This is based on the amount of overnight stays that the kids have with each parent

Ancillary Issues to child support: Medical Care/Child Care Medical Insurance Requirements with child support order: in judgment of divorce there is a requirement both parents are to provide medical dental and optical,

hospitalization insurance provided through an employer or at a reasonable cost in the open market. Procedure at doctors office: they will ask for the parents date of birth and they will start with whoevers birthday is first and then look to the other parent to see if there is coverage for whatever is not covered by the first parent. Whatever the second parents insurance doesnt cover is uninsured medical expenses. Judgment of divorce has provision for uninsured medical expenses, co pays which is you look at the adjusted gross income of both parents. Example: if moms adjusted gross income is 6000 per month and dads is 4000 per month you add this up and get 10,000 and of that 60% is attributable to mom and 40% to dad. So when you have an uninsured amount or co pay mom pays 60% and dad pays 40% this is in addition to child support these expenses must be reasonable and necessary to survive a challenge brought in court the parties must prove they are reasonable and necessary

Child Care A parent working outside home and child needs to be placed in child care then the money for that is paid by determining the same way for uninsured medical care i.e. add the adjusted gross income of both parents and determine the amount attributable to both parent and that is the portion they will have to pay. The standard is that the child must actually be receiving child care and you must be able to prove it in court. You must be actually able to prove that you paid for child care i.e. that you actually paid granny or happy elephant to watch kids in order to make non custodial pay. How long child care obligation lasts: language in judgment of divorce the first Friday in sept. following the childs 12th birthday.

How long Does Child Support Last usually until 18 or else there is special circumstances such as graduating highschool whichever occurs last but under no circumstances beyond 19 and a half years old. If the child is beyond 18 the child must be attending and enrolled in a school program that will end in a certification and the child must be living with one of the custodial parents. In MI the parties can agree to and put a provision in the judgment for divorce that says support will extend through college. The court will treat this as a contractual agreement

Some states like Indiana make the court to order support up through college Things That Stop Child Support: children getting married. If the child gets married at 16 with parental consent she is an emancipated minor and the parents are no longer responsible for supporting her. And the child support payments stop. If she gets a divorce at 17 she is still emancipated. Child enlisting in the army stops child support even though that child wont be able to go on active duty until 18 Things That Dont Stop Child Support: girl has a baby at 16 it does not terminate the support of the other parent. The person legally responsible for the baby is the 16 year old mom and dad. The other thing that emancipates a minor is a 17 year old enlisting in the army *************Remember if parents are married they are allowed to kick child out at 18. This is not the case when dealing with child support if the child is 18 but has not graduated from college.

Child Support Enforcement Child Support debt doesnt go away because child is 18 There are several tools available to enforce child support order (these exist because of federal mandates but in Michigan, they were the model for all the rules enacted for these federal mandates) o Gold standard: the most efficient and effective way of making child support work: this considered an income withholding which is governed by federal garnishment law but it Is NOT a garnishment because garnishment is reflected as being done because you didnt do something you were supposed to. Anytime there is a child support order you are going to see language that triggers the income withholding order. This is supposed to be automatic for everyone. Because the source of income is not a party for litigation in divorce you need a separate order that says because of the order of divorce the company is to withhold the income from the non custodial person. This applies to all income imaginable, including inheritances. Example: order will say you are ordered to withhold 2000 from non custodial parent and send it to the state collecting and distribution agency to be sent to custodial parent. Income withholding order is an order subject to enforcement proceedings as much as an individual is: if you send one out to Meijer and the human resource dept. doesnt want to do it, they can be subject to an order to be made to do it as well.

Another way of enforcement is the tax intercept program which is solely because of federal involvement: every enforcing agency is required to notify the IRS and local taxing agency after august 1st each year notifying them that this person with this soc. Owes an excess of 100 dollars in child support. When the notification gets to IRS it triggers notification to the tax payer saying that the IRS has been notified and you owe support over 100 dollars so any refund will be intercepted and sent to the enforcement agency to be applied to your arrearage and they have a right to request a hearing raising two issue: you have the wrong person, or they dont owe that money anymore. It also notices the taxpayer if they file a joint tax, the innocent spouse can request to have their part of the money returned to them. Another tool: because of the IRS, social security every quarter they send every enforcement agency gets from the IRS and social security office every case in their respective county saying for the last eight quarters this person with this SS number has been working for such and such and has been paid such and such. Once the enforcement agency gets this information they send an income withholding order to that job place Other tools: every year when you get a W2 that information goes to the enforcing agency. 1099 information is also available for the enforcement agency for interest in bank account, hororarium, independent contracts. So even though you cant do an income withholding on this income in an enforcement hearing they can say you made such and such for giving speeches.

Contempt Powers form or enforcement Civil Contempt Criminal contempt power is not what we are talking about here: this is when you have done something to offend the courtroom itself. Civil contempt: process available to courts to make to make people do whatever they are supposed to do. This can be used in child support or labor law, because it is illegal for public employees to strike and the teacher strikes. o People who are self-employed can try to ovoid income withholding orders. So you need civil contempt. In MI there is automatic enforcement (these rules apply to enforcing agency and private practitioner) you file a motion for an order to show cause.

Process: When someone is three weeks behind in getting payments the computer at the MI enforcement agency automatically creates these. The top half is the petition and the bottom half is the order. The petition alleges there was judgment of divorce entered making the parent pay such and such money, and that the enforcement agency or mom if you are representing her shows that that parent owes such and such amount of money. It is signed by you the attorney and the client and it goes to the judge. The judge will enter an order to show cause. The order to show cause says that the parent must appear before court on a certain date and show cause why they shouldnt be found in contempt for failing to comply with the court order. Thus the negligent parent has the burden of proof showing why they shouldnt be found in contempt for failing to comply with the court order. There are a couple of statutes that kick in creating a presumption that that everyone can pay 25 percent of what they owe or 1 months worth of support whichever is less.

Week 7

Civil contempt:
used for child support enforcement. All states must have an enforcing agency to do enforcement. The enforcing agency will automatically enforce anyone behind unless their docket number has been taken out of the computer. The first step in using this power: is to file a petition for an order to show cause. Petition top half order is the bottom half, allege there was a judgment of divorce and pursuant to it the def. is to pay such and such amount. The

records indicate that the def. as of such and such day owes such and such money. It will be signed by you or your client. Second half of page order to show cause: says def. is ordered to appear before court on such and such date to show cause why they should not be found in contempt for failing to comply with the order. *******Remember that the def. has the burden and must then demonstrate why they should not be found in contempt. First you have to see if there is a judgment of divorce. If Defendant Found in Contempt: there is a presumption that everyone can pay 25% of what they owe or one month of support whichever is the lesser amount. In order to not be guilty, they must: present the they cant pay the presumption amount and WHY they cannot meet this presumption. Then you have to know that the def. knew about the order. (You would show proof of service to def.) The def. has the obligation to find out if the divorce was finalized. Then you have to find that the person was in a position of complying with the court order or with exercise of due diligence would have been able to comply with the court order. You can find the def. refused to comply with the court order and then you will find them in contempt. By the exercise of due diligence is the person trying to comply with the court order? If not then they are in contempt. You have to look and see whether or not the person is complying with the order with due diligence, and see if the person is meeting their own needs to their own standard: ex. The person has a car with insurance paid for, a place to live, everything they need is paid for by a girlfriend or boyfriend. The person is also not finding a job. Because of this the person can be found in contempt. With civil contempt you are said to have the key to the cell in your own pocket. Whenever def. is found in contempt there must be a finding of contempt, a sentencing and then they get to get out of jail once they go to work and then the contempt order is purged. A dollar amount is usually paid in order to get them out of jail.

With the first finding of contempt max sentence is 30 days. Second contempt max is 90 days. And release payment is the key to def. getting out. Release payment will be 25% of amount owed or a month of the child support whichever is less, or note: the judge can order a higher amount if they feel the def. can afford it. If the person was sent to jail and then were not able to find work while in jail, there will have to be another hearing for them not paying child support for these situations.

****Child support will stop from piling up if the person is in prison or jail for something other than child support but it wont for someone who is in jail for child support. *****If def. doesnt appear for the hearing a bench warrant is sent out for their arrest for failure to appear. Then they will be charged for the amount for executing the warrant. Two other means of enforcement contingent upon finding contempt: 1. Attachment (basically a lien) of real property, although tangible property isnt necessarily excluded can be done if the person is found in contempt. You can do this if the person has property that is known of. 2. An order issued to suspend any license (including driving) and licenses necessary to earn a living. Like bar licenses or architects. The order is sent to the licensing agency. Only licenses in mi can be suspended but multiple licenses can be suspended. Alimony: deductible is gotten by the person who pays the alimony and it has to meet certain standards of being alimony payment for the ongoing needs of the former spouse. Alimony is only a means of assuring a spouse that is dependant and is about to become a former spouse but still is dependant. The people given alimony is gender neutral. Spousal support is also alimony. IF you took all divorces in Mich 5% or fewer of friend of court issues are not dealing with the above is actually tried. You need to know what the court will do when discussing your clients situation with the client. For child support all you do is look at the money you can send for the children, you dont look at the needs of the child to see what they need. Steps for Alimony Alimony is different from child support because the court looks at if alimony is necessary in the situation.

Statute requires that the court in deciding if there is alimony is deciding if the person can support themselves or not. The court can determine that a certain person makes enough money therefore doesnt need money. Court looks at: o the first step the court looks at to determine who gets alimony is the length of the marriage, the court looks to see if a state of dependency has been created throughout the marriage. If a person has only been dependent on a person for 2 years it is likely the person can become independent again. 20 years would be a different situation. Then look at the age and health of person. This is to help determine the persons dependency. You are trying to see if a 60 year old person can be taken care of. You look to the time leading up to the divorce in dependency to determine these two things. Then you consider what each person is taking away out of the divorce in terms of monetary obligations. So the spouse who is dependents monetary obligations are still taken into consideration, like can they move to a smaller place that is still practical. Next you take in the established standard of living, like does the couple go to the club house every weekend. Do they live in a gated community. This is the established standard of living. The court cannot judge this and say that well the dependant spouse can get along without it. The purpose of alimony is to prevent one partner in the marriage in a substantially lower standard of living after the marriage. Then you determine what is left in the marriage to meet the dependants needs. Determine the adjusted gross income of both parties to determine the amount. (there are computer programs to determine this) The end result is usually mediation and negotiations between the attorneys. The standard of living is the main thing that the courts look at to determine alimony.

Michigan No Fault State Michigan is a no fault state with divorce. Certain statutory language has to be alleged. Plaintiff files complaint that there has been a breakdown in a marriage. That is the only thing you place in the complaint. You can file under no fault statute or a fault based divorce in other states (not Mich). In this case the court can award alimony because the def. would have

been supporting the plaintiff in the same manner as before. Then this can be taken in consideration for alimony. In a judgment of divorce is a provision that the def. will pay non modifiable alimony to plaintiff commences on such and such date expiring on such and such day. Non-modifiable means that you cannot come back and modify the alimony payment UNLESS IN SOME SLIGHT CHANCE Judge chooses modify it but usually not. o If a person after the judgment comes into a lot of money the partner getting alimony cannot usually come back and try to get more, however, if the person getting alimony is really in a bad situation the court may make the person giving the alimony give more to help the person out.

If NO ALIMONY AWARDED-, the judgment for divorce says: No alimony is ordered and none is reserved. If alimony is not in the judgment then one partner can always come back after the judgment of divorce to get alimony. But if the provision no alimony is ordered and none is reserved, the partners cannot come back to the get alimony after the judgment. With divorces the orders are not necessarily over when given, they remain open for the remainder of the order.

Week 8

Property: division of marital property is divided only if you have property gained
within the marriage. Property is three step process: 1. Identify the marital property o (spousal estate, or property estate) which is property acquired during the marriage. To identify it you have to identify what isnt marital property which is: 1. Any property any party owned at the time of the marriage (prior to marriage) If a person owns a home prior to the marriage but sells the home later within the marriage, at the divorce the person who owned the home will get the property value of the home at the time prior to the couple getting married or if the house wasnt sold then the person that owned the house will still get the home. The increase in value of property within the marriage is now property value within the marriage. It doesnt matter how or who

increased the value of the home. This also applies to investments. For instance if someone owned stock prior to the marriage but increases in the marriage then the amount in which the stock increased is now marital property. Or if they sold the property and it went up in value after the marriage that amount of value of the stock sold in the marriage will be marital property. o Inheritances during the marriage. If a spouse inherited money in the marriage that amount granted in the marriage is that spouses personal property. Ex. If a person gets 25k in inheritance and they put it in the down payment of the home, that amount will still be separated and given to the spouse that inherited the money. The point is that it doesnt matter what the inheritance is given or used it remains the inherittees personal money. Money gained in a law suit. If part of the proceeds in the lawsuit if for pain and suffering that amount is the spouses personal property. Anything else in the settlement will be marital property.

2. Valuing the property: how much is it worth. o With real property, You can use a judgment of divorce and transfer the interest in real property, if you deal with real property in the complaint and the judgment separately from other property and be specific in what that property is and where it is located. In order to value the property: if you recently purchased or refinance the property you have a professional appraisal. Those figures with those things will be used for value of the home. If both parties agree to a value amount of the house, that can be used as well. Basically you have to have a professional appraise the value of the property. Ex. If there is a house and a cottage, and a lot where they would build a vacation home, all of these have to be appraised to get the value. If there are conflicting appraisal amounts the court will appoint a court appointed appraiser (which the couple pays for) or the couple must come up with a more realistic amount. For personal property: If the couple splits usually, you must be specific with personal identified property and the acquirement of other goods and furnishings (this means that since we all have stuff in our lives which is basically everything in your home.) Household good and furnishings are not worth being appraised for its value. So unless there is a contest for something this is not worth having it appraised. However, if you have things of significant value you can get it appraised for its value.

Specifically identifiable property that has numbers: cars, RVs, trailers, motorcycles, bank accounts, investment accounts and anything else that has a paper trail. So we can know which car will be owned by the def. and the plaintiff, and which. Animals are treated as personal property. So the dog that is valued at 100 dollars will be valued at 100 dollars. If you get the dog and its worth 100 dollars then the person can get the dog but they will lose something for the same value in order to balance it out. In order to determine who would get the dog, they can determine this by deciding who is the primary care giver. Pensions: the plaintiff will keep any pension that has been maintained as is and so will the def. For promised rights of income down the line, defined benefit of pension- if you work for an employer giving defined benefit of pension (state employees used to get this, school teachers get this,) Pursuant to whatever your contract with employer is every pay period an amount of money is withhold from you and given into your pension then the employer matches that amount and puts it in the pension. If you stay with the company long enough to have the pension vest, which is the designated retirement age Then the guarantee to that employee is for the rest of their life they get a certain amount of money. These pensions have to be valued and divided because it is marital property. The value of the pension at the time of the marriage (prior) is your personal property. The day of the marriage, any increase in value of the pension is then marital property. Every pension has a pension plan administrator can determine the amount the pension was worth prior to marriage and how much the pension is worth now. This is how you determine the value of the pension. Now, the Division of pension is hard: If the person who owns the pension has not worked long enough to get the pension just yet, then in order to divide the pension for both spouses, you take the pension that a spouse has rights too that has significant dollar value and ideally you wont divide the pension but award full rights of the pension to the pension owner and then make up that value by giving the other spouse a something that equals the value amount that they lost. But if you cant do that and have to divide: in the judgment spell out how the pension is to be divided such as: husband is keeping 80 percent of pension and wife is keeping 20 percent. Then there is a separate order going to pension administrator called qualified domestic relations orders. (quadros- you want to take a cle class on how to do this) There are forms available to do quadros. What this accomplishes: the pension owner is still working cant get the pension, but judgment said that other spouse

gets 20 percent which is the divided amount of the marital value of the pension, which in essence means she gets nothing as of right now. When the pension spouse retires, the other spouse gets that percentage minus the amount that he earned the first five years he was working prior to the marriage. o Professional degrees: Compensatory alimony. This is not going to be contingent either. It needs to meet all of the following requirements to qualify as alimony. It is a straight out payment paid within usually three years intended to place the person back in the financial position they would have been in if the degree spouse didnt get the degree. This will not be calculated dollar for dollar. Here is what you recognize: under certain circumstances getting a degree was made under sacrifice of the non degree spouse, and that spouse needs to be put back in the position they would have been if the degree spouse wasnt earning the degree. 1. The degree needed to be received during the marriage. 2. The degree was gotten by the sacrifice of non degree spouse. Note: the courts have been very generous in what they deem is a sacrifice. Especially if the non degree spouse was working to take care of both spouses while the non degree spouse is getting their degree. Loss of income is another sacrifice. If the degree spouse would have started their own business making a lot of money if they werent in law school that amount of money belonged to the non degree spouse because they could have enjoyed that. Emotional support can be recognized but there is NO dollar amount that can be placed on it. 3. The marriage has to end fairly quickly after the person obtains their degree. Look at when realistically you think you would have started living better. (note student loans can be taken in consideration because both spouses would be responsible for it. This could be factored into the amount.

Week 9 3 Dividing the property.

The third step and goal of every state is to divide the property equitably. Equitably means fairly which usually is equal divisions. Thus the goal is to divide things 50/50.

CALCULATING NET INCOME OF PROPERTY1.First you get the total of the value of the marital estate, 2.then you deduct the amount that is not marital property. 3Then you have the net value of the marital estate 4. and you then divide that net.

For most couples the most valuable thing they have is their home. If one couple is going to keep the home then the other member has to be paid their share of the home, that equitable interest. Then you look at pensions. If one persons pension is enough to be the one spouses equitable value then that will be their equitable value and the other partner doesnt get any of the persons pension. Home Proceeds-You can divide the proceeds of a house that was sold before the divorce. o The person who has custody of the children would usually get the house because, the benefit of children is they dont have to leave school district, friends and house they grew up in. Person with the children need the living space more so instead of getting the one room apartment or have to move and find another home which is difficult. IF there is no pension to offset the other partners value. The marital home is awarded to one partner and the one who doesnt get it gets a lien interest in that house. Ex. House goes to husband and provision upon the occurrence of this event a certain amount of money has to be paid to the spouse that does not own the house if 1. Person remarries, 2. Children are grown, 3. The house is sold or refinanced.

Vehicles are divided unless there is a big difference in the values of the cars. Other investmenets are divided, they just have to be transferred in title and ownership. DEBT: you have plaintiff awarded home and the debt thereon. Even though both people owned the property, the person who didnt own the home does a quick claim deed to the other spouse. The lender is not bound by the divorce judgment, so there has to be refinancing on the house and then the house deed will be put into the spouse who gets the houses name only.

The other things they own- other household goods and furnishings. Because one spouse usually has already moved out of the home and has taken things they believe are theres, the person who stayed in the home usually gets all the stuff left in the home because it is presumed that it is theirs, EXCEPT things that have significant value that will be divided. If there is any debt on an item that is given to one of the spouses in the division (like a car or house) the person who gets that item also TAKES THE DEBT left on that item. If one spouse fails to pay their debts on the items that were awarded to them the creditors can still go to the other spouse and collect money from them.

FAULT AND NO FAULT BASED DIVORCE In states that allow fault-based divorce and no fault, if you chose to go no fault the courts must consider fault has an implication in property division. This is the only reason to choose fault based divorce. There are circumstances in which fault had an impact on the value of the marital estate, if you can prove the fault and the value of the marital estate the courts have to take this into consideration. (Mi by case law, the courts may take fault into consideration if fault has affected the value of the estate. You have to prove the fault and its connection to the value of the estate (the decrease) basically if the fault did not occur the value of the estate wouldnt have gone down.) Fault includes: criminal behavior, meretricious behavior, and behavior close to criminal behavior but not necessarily it. If fault has affected the value of the estate, then you may have been able to get a 10% increase then you would have necessarily gotten originally. At most you get 20%. Example: someone who gambles a lot and was wasting family money and starting taking their money for household expenses and then waste it gambling, depletes the marital estate. Example: if someone is doing drugs and it is costing the family a lot of stuff that depletes the marital estate. Example: If you are cheating on your spouse and you are spending money on the other person instead of using the money for bills and household expenses then it depletes the value of the marital estate. You need to prove that the adultery has cost a depletion in the value of the estate. These are examples of fault having implication on the value of the marital estate. FAMILY BUSINESS-If you have a business the couple is in together that business if acquired in the marriage is marital property. Even if the debt is all in one persons name then the other person then the debt is still divided if that will help equal up the division of the assets.

Tax: Test Area Alimony: the person who pays alimony can deduct it from their gross income before you determine your adjusted gross income. The person getting the alimony has to include that amount as income. Thus the IRS wants to make sure what you call alimony is alimony by their terms. You can call whatever you want as being alimony, however, the IRS determines whether or not it really is alimony. Determining Something is Alimony o IRS definition of alimony: a payment for the ongoing needs of a dependent former spouse. This stuff is in Internal Revenue Code section 71. If a common law marriage has been established (in a state that recognizes it), then that can be included as being alimony.

Requirement for payment of alimony o must be in written decree in judgment for divorce. Ex. People were married gets a divorce. And there is no decree in judgment requiring alimony and the other spouse starts to pay the other spouse money, then that money is still not alimony. Written decree in judgment must have provision that alimony ceases upon the occurrence of death or remarriage of recipient. If judgment provides for payment to continue after recipients death this decree is really property settlement not alimony. Because when a person dies their needs die with them and therefore it is not alimony by definition. If person is audited the IRS wants to see judgment of divorce, and if that judgment doesnt have alimony decree you are in trouble. Requirement: The alimony has to be paid in cash or negotiable instrument. If someone used their the services such as repairing ex spouses house to try to exchange actual money for the alimony that is not allowed. The whole point is you dont want to allow the spouse to control how the ex spouse uses the money. Alimony is supposed to be a stream of income to the other spouse and can control it any way they want.

Requirement: Payment must go to the recipient not third parties. Thus a spouse cant give the money to a mortgage lender to help out they have to give it to the ex spouse. Except: if recipient is incompetent, then the payments can go to the providers or trust officer of the recipient.

Requirement: the payment must go to someone in a separate household. When you started maintaining separate households you can start deducting alimony Requirement: IRS says Payment of alimony cant decrease or diminish in any way that is conditioned in the event in the life of a minor child of the parties. That is to prevent people from using alimony as child support payments. An event in the life of a minor child of the party is an example of a child turning 18 the alimony decrease or if the child graduates and the alimony decreases. Dont allow the decree to say the alimony decrease 6 mos later after the decree. Recapture: you can deduct the alimony from your adjusted income.

********make sure you do everything necessary so the client can deduct their alimony. If alimony requirements are met and the payment of alimony is 15k a year or less then those requirements apply and the person can deduct alimony. If alimony is 12k a year and all alimony requirements have been met then the client can deduct the alimony. ********** o Alimony over 15K If the alimony is more than 15k a year then you have to also meet: 1.The alimony payment must extend into each of three calendar years. 2.During the three year period the alimony cant decrease an amount greater 15k dollars.

So therefore keep the alimony amount the same for at least three years. If the person dies in year two then the person wont be in trouble because it is not their fault. If the amount does decrease any amount over the 15k is recaptured. Ex. Year 1 100k, yr. 2 50k year 3 10k. If the decrease is no fault of yours then the person is fine.

IRS if decree says that you can do 500k in year 2011 and then 1000 a month for the next 5 years. This is front end loading. And the 500k is really a property settlement. Frontloading: Once that 3 year period rule has passed you can then drop the money down as much as you want. If you go from 100k, for three years and then you go down to 20 a month that is okay. Child support: not deductible by person who pays or receives it. Child support is a debt to the custodial parent and it is not going to be deemed income to the custodial parent. The custodial parent gets to use the kids as exemptions. Rule: whichever parent has physical custody of the children get to use them as exemptions. o Joint custody- if judgment specifies specific parent as having custody then that parent gets to deduct, if there is joint then the parents must calculate who has 1 more night over the other and that parent gets to deduct the children as exemptions. Joint custody(Custodial Parent giving Away child Exemption Right- the couple agrees to, IRS the custodial parent has a right to use the children as exemptions, but custodial parent also has right to give that right away if custodial parent signs waiver form to allow noncustodial parent to use exemptions then you can do that.

If decree says that mom gets to use even number of months for exemptions and the dad gets odd number of months then the decree says mom is custodial parent however, the non-custodial still gets those odd numbers for exemptions even if the noncustodial pays nothing for the kids in child support.

Week 10

Transfer of appreciate property that takes place at time of divorce.

In 1957 a US sup court decision involved a divorced couple in Delaware (Davis family). Mr. Davis was an exec at DuPont Corporation and made lots of money the wife didnt work outside home. After the divorce the ex-wife lived comfortably afterwards and kept home. When they were divorced Delaware was a title holding state which meant that if your name was on the document/title you were presumed to be the owner of the property . When husband was employed he received stock in DuPont when the divorce was final it required he transfer some of its shares to wife. He did transfer the shares. The husband got audited and the IRS asked him about the sale of that stock and they thought he should have paid capital sales on the stock. And he argued that he didnt sell it for capital but it was just transferred. But Sup court ruled that the transfer of appreciated property is the same as property being sold on the open market. Husband argued that he got nothing in return. The court said that he did get something. They said he got a chance to not have to transfer something else like money to his wife. So this was treated as a sale of the stock on the open market. So from 1957 on anytime this situation happened as a part of a divorce proceeding the person transferring the stock had to declare the sale of the stock and the amount realized at the time of the sale and pay the capital gains tax which at that time was 28 percent. Only way to get around this was for a state to declare itself a community property state in that according to this rule everything is owned by both parties of the marriage. So if a divorce occurred you were not selling the stock on the open market you were just transferring something that already belonged to your spouse. So some states for the transfer of appreciated property incident to a divorce named themselves community property state and they got around this rule

NEW RULE: Pressure was put on Congress to change this so now under section 1041 of the IRC code says that the transfer of appreciated property from one spouse to another doing the a marriage or incident to a divorce is not considered a sale of the property in the open market so there is no tax obligation at that time. o If spouse transfers property to another spouse during marriage or incident to a divorce there is no tax obligation at that time as transfer will not be deemed to be sale in open market If judgment of divorce mandates that spouse transfer a certain amount of shares to the other spouse he will pay no capital gains tax if he transfers it with in1 year from date of divorce Tax Implications for Spouse receiving Transfer: If husband receives 2 shares of stock worth $100 each which makes his original basis $100

per share of the stock for a total original basis of $200, if at the time of the divorce the stock is now worth $200 per share and he transfers all of the stock to his wife subject to a judgment of divorce within 1 year period of the divorce he pays no tax i.e. recognizes no capital gain on the stock as the transfer of the appreciated stock is not treated as a sale in the open market and not taxed. The wife who receives the stock at the time of divorce has an original basis of $100 per share and NOT the $200 per share that it is worth at the time of transfer. Therefore if wife sells stock she will have a recognized gain of $100 per share( 200 per share at time she received stock minus the original basis of $100 per share) which is a recognized gain of $100 per share for a total of $200 that she will have to pay capital gains tax on as this will be treated as a sale of the stock in the open market. ******REMEMBER THIS APPLIES TO INVESTMENT PROPERTY THATAPPRECIATED AS WELL AS STOCK************

As Practitioner you need to know how this will affect the spouse receiving the transfer of the appreciated stock or property meaning you need to know if person receiving the transfer is going to sell the stock right away or if she doesnt need the money and will just hold on to it and gift it away so she doesnt have to deal with the tax. If the spouse receiving the stock is going to sell the stock right away after it is transferred to them they will have to pay a capital gains tax on the stock and therefore will receive less than allotted amount of the marital estate because the taxes were taken out immediately when she sold the stock Ways Around This Issue for Spouse Receiving Transfer of appreciated stock or property o Sell stock or property before marriage ends, file one last joint tax return and then divide what is left Have spouse get other property that will offset the value of the tax obligation Receive something other than appreciated property in the judgment for divorce that she can sell without having a tax burden such as receiving a home instead of stock and if she sells the home she has the option or rolling that money into certain investments like another house. Receive cash

CUSTODY
Mi statute creates the presumption that the parties in a divorce should have joint legal custody. With all presumptions the opposing party has the burden to prove why this shouldnt be the case. All rules on custody, parenting time and child support apply to all cases of divorce with one paternity cases. The results are not always the same in that the goals of the divorcing couple and the paternity case couple. In that with a divorcing couple there has at some point been an intact family so the goal is to preserve this environment with a relationship a full fledge familial relationship with both parents. When the family is intact it is presumptive that this is possible because all of the parties are there but when the parties are divorcing we have to come up with a way to keep a relationship with kids and both parent. In paternity cases we are not always talking about an intact family but one nighters and other brief relationship. But if there is a contest for custody the rules are the same and the rules are the same for parenting time. This is the goal is focused on preserving a closely as possible with trying to keep the family together as a whole. This is the third and final area where the court is said to retain jurisdiction for enforcement and modification When there is a divorce and the couple had minor kids there has to be a custody order. Someone has to have custody so you can get medical treatment and enroll kids in school JOINT LEGAL CUSTODY- statute in MI creates presumption that both parents get joint legal custody. In general case law defines this as giving both parents equal say and decision making authority for major issues in the lives of the children. o MAJOR ISSUES Defined-The major issues involved are issues involving education medical care, remedial care, religious training, physical appearance), it is very open ended. (no way to enforce this) Goal is that both parents will act sensible and come to mutual agreement. o Parent who doesnt want joint legal custody has to demonstrate why there shouldnt be joint legal custody which will be hard because it is so undefined. There is no real way to enforce the concept of joint legal custody. The parent that does not want joint legal custody has to show why they dont want joint legal custody. An example of it is that the parent is out of the picture and you dont know where they are or that they should lose their parental rights because they abused the children. (most judgments of divorce have language including joint legal custody. JOINT PHYSICAL CUSTODY-There is a difference between joint legal custody and joint physical custody remember that. o There is a presumption that joint physical custody is what is appropriate. And most of the time the time the kids are shared with each parent is 50/50. But sometimes this is impossible because of school, or one parent moves to another state so this 50/50 percent will not work. If court makes this decision the court has to start with this presumption

The person who does not want join physical custody they have to prove why it should not be this is also hard to do. o Primary physical custody to one parent is when the child spends the school year with one parent and a couple of months in the summer with the other parent. This in not joint physical custody. This is just primary physical custody to one parent and the summers spent with the other parent because the law really means 50percent. o In the past the tender years doctrine created a presumptive that only a female parent is capable of taking care of a child in tender years therefore in divorce only the mom can take care of the children. The dad would have to overcome that presumption. The tender years was babies up to 8-10. After child turned 10 its hard to get the court to change custody This concept is no longer valid, o NEW RULE-the court wants a full-fledge relationship of the child with both parents and they have created concept of joint physical custody and they changed the phrase visitation to parental time which implies that another parent is going to take care of the child in the manner of a parent and not just a visitor bringing candy. o EXAMPLES OF JOINT PHYSICAL ARRANGEMENT-The most common way to do joint custody is two weeks with mom and two weeks with dad. Decisions regarding custody: in mi we went from adult focus of custody to a totally child focus view of custody. (court looks at WHAT IS IN THE BEST INTERESTS OF THE CHILD This affects child support because we take into consideration the income, number of kids and number of overnight stays with each parent Few custody issues are litigated at the time divorce is ongoing. If the custody issue goes to trial which is not often because either man thinks the mom will automatically get child or they think its best for them to be with mom. If the issue went to court then 50 percent of cases the dad will end up with the kids. (Mom is usually gets physical custody of the kids meaning mom is the primary physical custodian and dad gets parenting time) o

Post Judgment Litigation on Child Custody:

Example: couple divorces 4 years ago with kids 4 and 6. Mom gets physical custody and dad filed an answer but and dad has exercised parenting time diligently through this 4 year period but now thinks that it would be better for the kids and would get parenting time. But now dad wants an amendment to the judgment of divorce to go from sole physical custody with mom to joint physical or sole physical custody with the dad. Dad says that the mom has changed and is now using drugs. There was drug raid, kids have been moved several times, arent doing well in school. STEPS TO CHANGE TERMS AND CONDITIONS OF DIVORCE IN TERMS OF CUSTODY

You would file a petition to amend the judgment of divorce (you always do this to change anything in the divorce) MI court rule mandates that the pleading must state that there is a change in circumstance since the most recent order i.e. the judgment of divorce and it must say that nature of the change. (you have the right to represent yourself without an attorney(no filing fee to change the custody) There is a presumption and to overcome it you have to demonstrate clear and convincing evidence that there has been a substantial change in circumstance since the most recent order the judgment of divorce. So discuss this with your client to make sure you will have enough proof to overcome this. The general rule: statute says to determine what is in the best interest of the child every decision maker (judge/home investigator/magistrate) has to take into consideration certain factors to decide what is in the best interest of the child. Every factor must be considered: the consideration of these factors must be reflected in a written opinion or statement in open court that the judge took these factors into consideration and what decision was for each of them.

Factors 1. Love and affection and emotional ties between each parent and the children. Most of the time the parents have an emotional connection to the child and they demonstrate it. Sometimes you have parents who dont visit ,send cards, show affection towards kids. 2. The capacity and willingness of each parent to provide the child with love and affection and guidance in the continuation of their education, religion practice if any is relevant to that family. In terms of education we are looking at love and affection and how they demonstrate that but how they educate with the children with regards to their education. In our hypo the mom is not helping them with their homework at night and isnt giving them nutritional food, letting them stay up and watch MTV. Also look at what dad is doing. Are the parents encouraging them and in making their education success. In terms of religion- If you have a family where during the marriage the family practice was to participate in religious practice i.e. to go to church and now because mom in our hypo has gone off the deep end the kids have been taken away from that. The courts will take this into consideration because this was a part of the family practice before they broke up. On the other side of the pendulum the family wasnt really practicing a religious activity and only went to church occasional if after the divorce the parents one of the parents

have gone into one of the more extreme religions where they pray 19 hrs a day. If this has happened it has broken the norm for what was part of that families practice for the kids for the kids during the course of their lives. So if family never took kids to church during the marriage and after divorce they still dont that is fine. 3. Ability and willingness of each parent to provide their kids the necessities (food, shelter, medical care, remedial care etc.) This not going to be a dollar contest, just because one parent can afford to get one kid more doesnt matter. You look to the parents willingness to provide the necessities for the child within their respective ability. If mom receives child support for dad who theoretically all should be used for the support of the child but she spends it at the casino. Is mom providing for the necessities of the child within the relative ability that she has? No a. Medical care- most parents provide what is necessary and appropriate to their child. But some parents dont provide care to the child such as the child has a serious issue and they dont take the child to the doctor

4. Relative permanence for each family unit i.e. the one where they live or the one that is being proposed as where they will live in the future. As a society we say children are children until 18. This guaranteeing you will provide permanent stability of the child i.e. food, clothing shelter medical care. And we will relieve the children of certain decision making and will provide permanence and stability to the best of our ability show children wont live in terror of being up rooted and losing all their friends again. (Ex. The moms is doing a horrible job at this as her life is horrible she never stays in one place, and is on drugs but the dad has a stable permanent home.) We want the children to have a stable secure safe permanent environment so they can go to school thrive and be healthy. 5. Take into the consideration of the moral fitness of each parent that affects the one going life of the child. a. The couple who lives together and is not married will be fine for the court. However one night guests (like boyfriend for one night) will be looked down upon. b. This includes criminal behavior around the children. Meaning if there are people doing drugs all the time in front of the kids and there was a raid in the home and kids saw it. c. You look at the physical or mental health of the parents as it relates to their ability to care for the children. This is a thin ice area. If there is a

demonstration that the person physical or mental health issues are affecting the lives of the children negatively or if they could potentially affect the childrens lives negatively the courts will look at this pretty seriously (ex. You have a parent that is pschitso and they dont always take their medicine, this would be a threat to the children. ) We know that a lot of time people who have mental illness they do not always take their medicine so this could be very dangerous i. Physical health issues: most of the time these issues dont get to the court. For example if a parent who has custody is getting treatment for cancer most of the time the court will be seen as a change in custody situation because most of the time family will step up and take care of the children and pick up the slack so that the parent can have a relationship with them. However if there is a demonstration that this illness will negatively impact the lives of the children the court will look at it. 6. You look at the school and community record of the children. ( i.e. if they are not doing well in school or they are getting probation and juvenile. The court asks what could reasonably be expected about the kids when determining whether or not they are doing well. ) in our hypo if the children are not doing well it is probably because of moms lifestyle. If children are involved in community activities or if it could be reasonably expected that would be involved in community activities how are they doing in that respect? In our hypo mom isnt taking kids to ballet because of her horrible lifestyle. a. THINGS TO LOOK AT FOR THIS FACTOR- In terms of school/community involvement(if community involvement is reasonably expected) how are they doing, what would be reasonable to expect from children in terms of school performance and what is actually happening. 7. Reasonable Preference of the Child if the Court Feels the Child is of Sufficient Age to Express Preference-As a society we have made a decision that children dont get to make decisions for their own selves when they turn 18. Because you are saying that you will provide them what they need to support them i.e. food, clothing shelter as well as make substantial decisions for them. ***This factor is no stronger than any of the other factors all factors must be taken into consideration*************** a. In addition to the other factors the court will take into consideration the perception of the child i.e. there preference as long as they are deemed to be old enough. So the judge would take into consideration the childs concerns by having a conversation with the child. The parents nor other parties are not involved with this. Trier of fact is not trying to get a decision but a picture of what its like living with mom or

what it may be like living with dad or what life is like being with dad. After the judge talks with the child the judge would say in the written opinion was that they talked to the child and their thoughts were considered when Judge made the decision. You never put on record that the child didnt want to live with mom.

WEEK 11 ******Children under 18 are not allowed to make substantial decisions. ******* These factors were added to the 1972 child custody statute (3 added factors)

8. Abuse of the child by someone other than the parent. This is not talking about physical abuse. People/Parents who do physical abuse stand to be charged criminally will have to go through abuse and neglect proceeding and will have the child taken out of home. Again we are not taking about this!!!!!! For this factor take in consideration the emotional and mental abuse mostly, that is being done to the child in the home that is being perpetrated upon the child by someone other than the parent. Children of the extended family can be the culprits of abusing the children. Also the step parent or step parents children. 9. Abuse of someone else in the household other than the child but (within the childs knowledge) in front of the child and the effect this has on the child. Ex. The new step children are being abused by the parents, or the mom is being abused by the boyfriend. 10.The relative ability and willingness of each parent to foster a relationship with the other parent. Basically how is each parent doing or how are they going to do in allowing the children to have a relationship with the other parent. Is one parent bad mouthing the other parent to try to get the child to not like the parent. If mom has custody is she encouraging children to have a good relationship with dad or her bad mouthing him. If dad is to get custody i.e. if he is in the process of trying to get custody if he gets kids will he bad mouth the mom?11.Catch All factor- which is anything else the court deems important 12.Presumption is that where the children are is where the children should stay. You have to take into consideration the length of time where the children have lived in their established custodial environment. There is a presumption that this is where they should remain. (The court starts with the point that no matter how horrible the situation the original place is where

the children should stay because society knows that it is best that children gain stability in an environment. With this factor presumption they then look at the other factors determine what is best for the child, if you can say with clear and convincing evidence that a substantial circumstance has changed since the last judgment of divorce entered is when you can change the custodial environment of the children. If this standard is met youll have an amended judgment of divorce that will make that provision of custody. Parenting time: used to be called visitation. It is distinctive now because it is supposed to be conveyed as the concept that there is two full fledge parents involved in the childs life. The provision should be specific and more expansive than the old standard. The court would define as an expected minimum if the parents live in the same area would be parenting time minimally every other weekend and during the week no parenting time some other parenting time, maybe when school is out and then drop off at 9. Four weeks in the summer, two weeks first then another two weeks alternating major holidays, and school holidays, new years, resurrection Sunday, Christmas, or Christmas eve and then you have Thanksgiving and stuff like that Making sure parenting time takes place: there are requirements that lead into enforcement of parenting time, if non-custodial parent goes to arranged place to pick up kids at arranged time, and no one is there, then you are to give a half an hour, if they still dont show up they have to file a complaint at the enforcing agency within 7 days of the event stating that they went to the arranged place and time and that he waited 30 min. and no one was there and he missed his parenting time. The agency will send a letter to the custodial parent stating that the noncustodial parent didnt get time and the custodial parent has to respond: he is lying, she really was there but something bad was happening, either way she has to say her position or reason why non-custodial parent didnt get kid. Basically the noncustodial parent should get to make up their time. A person from the agency is to help the parents work the parenting time out. But if his time was denied and there was not a way to make it up, then that time goes into the parenting bank and he is able to use that lost time sometime in the future. I f something really did go wrong like when the dad arrived he was drunk then the court will say to the custodial parent that they are to protect the welfare of their child and therefore they can stop him from taking the kids. The court will also say that they have the obligation if this is a long term problem (hes an alcoholic) to turn to the court to change the parenting time to protect the children. Basically the person cant keep denying the parent parenting time, they must go to the court and change the parenting time. If the custodial parent is accusing the other of being

drunk all the time he gets the kids then they need to have a friend go with them to pick the kids up as a witness that he is not a drunk. If the parents working with the agency cant agree a new parenting time that was lost then the court can bring in their contempt powers. If the kids dont want to go then the custodial parent needs to then have some realistic reasons why they dont like the parent and if it is serious enough then the parent needs to do an amendment to parenting time. Parenting time(civil) contempt: the sentence has to be drafted to assure future enforcement. The custodial parent in jail can get out of jail at an appropriate to make sure they are able to spend time with the children . When the custodial parent is in jail for denying the other parent parenting time, the custodial parent will get an opportunity to come out of jail to allow the other parent to get time with the children. If the parent continues to deny they keep going to jail. Or the parent can go to jail until they can give the child over to the other parent. Child support contempt: the person has the key to the cell in their pocket. They have to pay the money. The parent has parenting time and they never visited, the court will never do a civil contempt proceeding on the parent, they will not do it because they do not want to have the parent that doesnt want to make the parent who doesnt want to visit the child visit the child. The domicile of the children will not change from the state of Michigan without permission of the court. Changing domicile is moving from one state and taking them with her. They custodial parent must have permission: 1. They can sit down with the parent and then ask them to move the child, the other parent can agree and there will be an amendment to the judgment of the court by stipulation and there will be provisions that the child can only move to the place agreed on and then info for how the other gets parenting time. 2. She can petition eh court to ask if they can amend the judgment and allow a provision changing the domicile of the child move the court: sparks factors: 1. reason for proposed move- is mom moving because if they stay in the state that they will have no job if they dont move, or that the new husband has to move because of his job. No capricious reasons are allowed. 2. What each parent is going to do to accommodate the needs of the other parent for parenting time- i.e. they willing to share the costs of travel are they going to make sure that the kids get to go to the other parent in the summer. Remember that the court will only allow the parent to move the kid to the state specified and any other moves must be done in permission of the courts. Neither parent with a custodial interest (if you have sole physical custody this applies to you or if you both have physical and legal custody then it applies to both parents) in the children will move more than 100 miles. (This applies to both

parents, intent is to prevent one parent from terminating the relationship with the child and the parent)?? Because a parent can choose where a child can go to school, the custodial parent almost has to get permission of the other parent to send a child to school that is far enough away to where it can cause issues of the parenting time of the parent . Ex. The parent lives in flint and wants to send the child to a special board school in Lansing. Week 12 Illegitimate child doesnt have an inherent right to be supported by their father. (all minor children have the right to be supported by the child IF you know who both parents are, thus illegitimate children dont have the right to be supported by the illegitimate child.) if a guy dies intestate the illegitimate child doesnt have a right to inherit from the dad. If someone is injured and has workers comp., or they have soc. Benefits, any federal employment benefits the legitimate children are supported by derivative benefits. You want to have the illegitimate child to be legitimated in order to receive certain benefits (like company coverage of health insurance) Adoption: first step terminate parental rights of biological parents. You have to give notice to the father if the child is not legitimated. How to legitimatize: 1. The mom is married at the time she gives birth and the guy she is married to is the father (even if he isnt biologically). Even if they get an annulment, the child will still be deemed the fathers. you dont look at who the biological dad is here, you look at who the husband is. 2. If the mom is unmarried and unmarried at the birth and conception of child, the supposed dad can sign an acknowledgement of paternity. Basically the document says that she and he acknowledge that they are the parents of such and such child and is signed by both parties, and notorized. At this point the baby is legitimated. This not a court order, it is a legal document that does nothing but legitimates the child. The child now has all the same rights as a child that is born within a marriage. This opens the door for: family support proceedings- the child is legitmite and now mom can start this proceeding to get child support. The document is recorded in mi. (you can get this doc. At the maternity ward.) The guy who signs the acknowledgement of paternity and is not the biological child he is still responsible. There is no real way that the biological father can stop the new husband or boyfriend from signing the acknowledgement. In a family support hearing: default orders can be brought against the guy who signed the acknowledgement even if he is not the real dad. When trying to enforce this order, the dad has no choice but to pay the money. He can do a reverse of acknowledgement of paternity hearing to try to stop having to

pay. But most of the time this wont work. Because usually at the signing they ask are you aware that you are now going to be legally acceptable for taking care of this baby and that you will be liable for the child, therefore, the court takes the signing of the acknowledgement seriously. There is no statute of limitations on signing the acknowledgement (they can sign at anytime) If you try to name the baby after the father on the birth certificate that wont make the guy they named after lliable. 1. Way number 3 to Paternity action- a legal proceeding that is intended to legitimate the child and its a civil proceeding. The process is handled by family division. Begins by complaint-parties are entitled to respondent. Complaint alleges: mom gave birth to child on certain date, and what hospital and where(city state(, and it is alive. Mom was unmarried, from time of conception to birth of child. She maintained a sexual rel. with respondent on certain date until certain date. And within that time period she was having a sexual relationship she conceived. If seeking child support, the she alleges that respondent is a person that is capable of paying the money. If she is seeking full custody- then she is a fit and fair person that can keep custody of the child. It is signed by petitioner and attorney, filed by clerk at the court. Once filed it is served on respondent. The court permits long arm service- so wherever you locate man you serve him with complaint. He is given time to appear in front of court to be arraigned.

If the guy shows up he can: say that it is his father and the judge will turn to me and say determine what amount of support is, and custody time, and prepare an order of filiation. When you get info of how much support should be and custody issues that is when you put it in the order of filiation and then submit it to the court. It will also include provision saying respondent must pay some of medical expenses to birth fo baby. Cap is 5k.

Once complaint is filed you dont have him sign an acknowledgement the order of filiation is submitted.

If father doesnt admit he is the father then the court will set for trial and will allow a bench or jury trial (still civil), standard of proof clear and convincing. And the court will order DNA testing.

If your respondent attorney: youll get dna results and it will be presented that by a factor of 99.99 percent this male is not excluded as the potential father of the child- which means they are the father. You will then tell the guy he is the father and have him admit he is the father in the court. If you are petitioner attorney: if the test says the guy Is excluded, then you can say we need to go to court and dismiss this claim without prejudice, (just in case they have someone else they think is the father and wants to bring them in.) (for gov. assistance the mom has to do a paternity action-to get money from the father- to get public assistance. But the rules says that she cant live with the father in order to get public assistance.)

With order fo filiation: there is provision that he has to pay a portion of the test for dna testing.

Reveres paternity proceeding: the situation that leads to this type of case is: the guy wants to be legally deemed the father of the baby. you have a couple that have lived together for a couple of years and a couple years previously they had a baby. The acknowledgement of paternity was never signed. Thus the guy has no relation to the child legally at this time, even if they guy continues to live with the woman and child or that he is the biological father. If the woman kicks the guy out he has no legal relation to the child. The guy is going to have to start a paternity action (he needs to do it quickly because mom can have new boyfriend sign the acknowledgement). The paternity action in this case is pretty much the same, also include when it comes to the custody portion that he had a relationship with the child for x amount of time. Basically the guy is going to have to prove that he is the biological father. And the mom must appear in court. If she admits he is the father a order of filiation is brought it in. if she denies then there will be a DNA testing that will occur.

There is no statute of limitations on paternity cases.