Family Law Blog

Anyone filing a domestic case in Washtenaw County has a 75% chance of receiving an order to mediate when the Clerk of the Court returns the summons.  As we know, Judge O’Brien and Judge Wheeler both require mediation unless the parties have reached a settlement or there is domestic violence at a level that makes mediation unsafe for one party.  For many parties, this means they should engage the services of a mediator soon, since the judicial attorneys will be pressing their attorneys at the pretrial for the name of the selected mediator.

Judges give the following admonition to people who litigate, in different forms.  One particularly forthright judge stated it this way.

“I don’t love your children.  I have only met them once for a very short time.  You know them and their needs better than I will ever know them.  For the life of me, I don’t know why you think I can make better decisions than you can.”

New York, the last fault based state in the United States, became a no fault state in 2010.  Michigan has been a no fault state since 1972.  Many clients continue to ask about fault based behaviors, such as one spouse having an affair during the marriage.  Is such behavior really relevant in a modern divorce?

In our mobile society, we often encounter clients who have moved to Michigan from other states.  When their marriage is threatened, they prefer to have the support of their extended families and want to move back home.  When the couple has children, this poses special concerns.

Barring one parent being negligent or abusive, children need both parents helping in their upbringing to mature into health adults.  When one parent moves far from the other, the move necessarily interrupts the children’s access to both parents.  Under the law, move away cases are examined carefully.

Some parents know that once the court case is begun, they cannot leave the state without the other parent’s permission or an order of the court authorizing the move.  They think the answer is move before a formal action is started.

Nothing quite matches the level of betrayal one spouse feels when she finds out that her husband has been cheating on her.  Recently, we have witnessed the break-up of the Schwartzenneger-Schriver marriage over Arnold’s reported over-a-decade long affair with their housekeeper and the out-of-wedlock child that resulted.  Even in cases with less compelling facts, the spouse who discovers the cheating cannot help but feel a range of emotions, including rage, humiliation, lack of trust, wanting to protect the children from the ugly truth, wish to recover the lost financial resources spent on the affair, possibly need to retaliate.

The betrayed spouse is going to need some time and help to sort through the emotions and determine next best steps to take.  If the spouse who committed the betrayal revealed the affair, he might be ready to move on, “take his medicine,” and get it over with.

Assuming that both spouses want to protect their privacy and by extension shield their children from the media blitz (in the case of famous people) or gossip (in the case of everyone), they would be well served to work consider Collaborative Practice as the method to settle their case.

Attorneys – Husband and wife are each represented by an attorney.  They also sign a participation agreement that permits their attorney to confer with the professionals (listed below) whom they chose to work on their team.  Part of the agreement is that the attorneys and husband and wife agree that everyone will use their best efforts to settle the case without going to the court for judicial decision-making.  The penalty, if anyone violates this provision, is the attorneys and other members of the interdisciplinary team must withdraw.  This assures that all the professionals and husband and wife will use their best efforts to work in the process to reach a lasting, complete resolution for their family.

Divorce Coach – husband and wife could both benefit from having a divorce coach.  This is a mental health professional who engages in targeted, short term counseling with each to get through the many (often) competing emotions they are feeling.  They can also help them talk together to reconcile their competing interests.  Until the emotions are dealt with effectively, there will be no settlement.

Parenting Specialist – the children would benefit greatly from having mom and dad select a neutral mental health professional who will be available to the children to talk with them about how best to configure the parenting schedule and then work with mom and dad to review options and decide on a schedule that will work for their family.

Financial Professional – husband and wife can select a neutral CPA or other trained professional to help them determine the best way to save taxes and divide their property.

Not every couple needs all these professionals.  In complicated, big-asset cases, they may all be necessary.  In no-children or lower asset cases, fewer professionals may be needed.  It’s up to the couple and their attorneys to decide.

The major advantages to the couple are the conflict is less and consequently, the fees will be less.  The negotiations and work with the coaches is conducted in private and at the pace that is comfortable for the couple.  Use of multi-disciplinary team provides the full range of services.  The professionals are available in the future if the couple needs help with issues such as changing parenting time as the children’s or parent’s needs change.  In many cases, this is the best method for reaching complete, lasting settlements.

How do divorce lawyers handle their own divorces?  They try to do everything they can to stay away from court.

Why?  They know that going to court is a losing proposition.  It wastes money, time, energy and future good-will.  They know that dwelling on the past is like sitting on a merry-go-round.    Fighting will get you nowhere. The couple must move forward into the future.   Lawyers appreciate they want a civil relationship with their spouse after the divorce.  They will want to co-parent their children effectively.

Even when I tell my clients that Michigan is a no fault divorce state, they often want validation of their suspicions about their spouse’s fault behavior.  It can be tempting to use some of the many electronic tools that are available.  Before you do, check with your attorney to determine if you might be violating the law and whether what you find will be admissible in your case.  Also consider that your behavior of conducting surveillance on your spouse may be held against you in the divorce.

Family law practitioners have sophisticated tools for helping clients settle their cases.  Most will settle if the couple can start using collaborative practice or facilitative mediation early.

There are some cases where one partner is so angry about the break-up or is so frightened or threatened about the loss of the relationship that the case will not settle.  You might have gotten close a few times.  They may have even agreed on a settlement and then withdraw agreement before they sign the contract.

What to do when you wish to avoid a trial?  There are two methodologies that can bring such cases to closure.

Michigan, like many other states, does not provide a legal remedy for LGBT couples whose relationship is breaking down.  Many of these couples are not eligible to file for divorce to obtain property, custody of children, parenting time or support.  However, it is possible to get legal assistance once the couple signs a settlement agreement.  The courts will enforce contracts.

When one or both parents are foreign nationals or live or work in a foreign country,  international abduction of a child presents a greater threat.  What should a separated or divorced parent do to avoid having a child removed from the United States against the parent’s will?     If the child is taken to a foreign country, what can a parent do to get the return of the child.