CUSTODY ORDERS FOR STATES IN WHICH MY CHILD DID NOT RESIDE
Question: My ex-wife refuses to follow our custody order for our daughter. The order was processed in State A when we got a divorced but my daughter never lived in State A. She resides in State B. I have tried to get State A to force the visitation but was told that they can’t since my daughter lives in another state and has never lived in State A.
Answer: An interstate law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) likely applies to this situation. If your daughter had not lived in State A for at least six months prior to the date of filing for divorce or her lifetime, whichever is less, and State A did not otherwise have substantial contacts with her (such as doctors, teachers, housing due to domestic violence, etc.), then it is possible State A did not have the power to issue a custody order in the first place. This would be true even years after your divorce according to a concept called subject matter jurisdiction, which means the family court's power to issue an order in a case. Subject matter jurisdiction cannot be waived. It either exists or it does not exist. We would need to sit down and review your paperwork and the circumstances surrounding the divorce to make sure.
Alternatively, if State A did have subject matter jurisdiction but the order is not now working, you may petition the family court in the state where your daughter has resided for the last six months to change it.
Both options are complicated in that they deal with interstate laws and generally require a lot of briefing of facts and circumstances to a judge. Therefore, it is best to have an attorney's assistance. Parents who represent themselves are held to the same standard of knowledge and skill as an attorney, and this can be a daunting task.
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HOW IS SPOUSAL SUPPORT (ALIMONY) DETERMINED IN MICHIGAN?
In Michigan, defending against, or arguing for, spousal support is like putting numbers into a black box and waiting guessingly for what will come out – the award is completely discretionary, and there are no bright-line rules, formulas, mandatory marriage lengths, minimum payment years, or other requirements, to guide the judge. There are computer programs some attorneys use as bargaining tools, but they are woefully inadequate, judges cannot refer to them as evidence, and they fail to account for the spousal support factors judges must use according to caselaw. That law requires the judge to engage in a lengthy fact-finding analysis instead.
The trial court has the discretion to award spousal support, but the award “must be based on what is just and reasonable under the circumstances of the case.”[1] The award, if any, must balance the income and needs of the soon-to-be exes without impoverishing either.[2] In other words, the trial court should not award spousal support if, after considering the parties’ income, ability to work, health, fault, need, marriage length, age, and any other relevant fact, neither needs it, neither can afford it or the circumstances do not justify it.[3] The trial court will not be reversed on appeal absent an abuse of discretion, which means the judge’s decision fell outside the principled range of outcomes.[4]
Underlying spousal support awards at divorce is the partnership theory of marriage. Marriage is a joint venture between husband and wife, and they rely upon each other to work, raise children and maintain a standard of living. That is why the statute authorizing an award of spousal support emphasizes the parties’ needs and abilities to pay and their character and situation. The statute has not been revised in more than 100 years, and so we are left with a somewhat archaic caselaw featuring homemaker wives and breadwinner husbands.
The more recent caselaw, however, features working spouses burdened with debt and unable to support each other at divorce. In that caselaw, the length of the marriage is often the linchpin to determining a spouse’s entitlement to support after divorce. This factor shows the interdependence of the other factors because the length of the marriage usually affects the parties’ respective property rights, work history and employment potential. In Zecchin v Zecchin,[5] for example, the Court of Appeals approved a trial court’s award for permanent support in favor of a wife of a 27 year marriage whose husband had convinced her to take herself out of the job market to live as a homemaker. The consensus is, support is appropriate when the parties share a long marriage and one party did not maintain a career.[6]
Fault would be important if it perpetuated that lifestyle. In other words, if one spouse made the other be a homemaker so he (or she) could maintain an affair at work, the judge might admonish the cheating spouse and award the homemaker spouse rehabilitative support to gain skills and seek employment. A few extra dollars for the affair would be a slap on the hand, and it would cost the cheating spouse more to appeal the decision that it would to pay the extra support. However, if both spouses worked and one cheated but the other’s lifestyle was unaffected, then support would be inappropriate because the fault did not affect the spouse’s lifestyle.
The problem is, in Michigan judges have so much discretion that virtually any award is acceptable on appeal. A discretionary ruling receives the greatest amount of deference on appeal. Moreover, although the judge must state findings of fact on each support factor, there are so many factors that it is easy to mask what is really punishment for being the faulty spouse by something else – say, a mix of the other’s needs and lifestyle. The trial court cannot give “an inordinate amount of weight” to fault, but so long as the trial court rationalizes its decision with the other factors (age, health, lifestyle, employability, length of the marriage, etc), the award will not be set aside on appeal.[7]
So, how do we deal with fault in Michigan? Representing the spouse seeking support – that includes men, because men, although traditionally not the support recipient, can need support just as much as women – we identify the fault in the marriage and then argue at length how it affected the client’s finances and lifestyle. This takes guts, because fault is not a popular topic, and it takes an attorney not afraid to advance the arguments. Representing the at-fault spouse, on the other hand, we divert attention from fault and restore it to where it ought to be: needs and ability to pay.
[1] Moore v Moore, 242 Mich App 652; 619 NW2d 723 (2000).
[2] Id.
[3] Magee v Magee, 218 Mich App 158; 553 NW2d 363 (1996).
[4] Id.
[5] 149 Mich App 723; 386 NW2d 652 (1986).
[6] See, e.g., Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956) (20 year marriage); Demman v Demman, 195 Mich App 109; 489 NW2d 161 (1992) (23 year marriage); Ross v Ross, 24 Mich App 19; 179 NW2d 703 (1970) (14 year marriage).
[7] Welling v Welling, 233 Mich App 708; 592 NW2d 822 (1999).