I WANT AN ANNULMENT!

                You are fed up with your marriage. Your spouse lies. You do not have a lot of property to divide, or you do not care to divide it. You just wish the marriage never took place. Can you seek an annulment to undo your marriage quickly, a la Brittney Spears?

                Probably not.

                A legal annulment is an annulment is a judicial determination that a valid marriage never took place. MCL 552.1. It is the appropriate means of dissolving two kinds of marriages—those that are void ab initio and those that are voidable. If a marriage is void ab initio, it is deemed never to have taken place since it was void from the beginning.  If a marriage is voidable, it is valid until one of the parties brings an action to have it annulled. The action must be brought while both parties are living, and until a court declares the marriage annulled, it is legally binding.

                The grounds for an annulment are limited. There are two statutes in Michigan setting the grounds that invalidate a marriage. Under MCL 552.1, the grounds that make a marriage “absolutely void” are

•a bigamous marriage,

•a marriage prohibited by the relationship of the parties, or

•a marriage with a person who is not capable in law of contracting.

This means, the law treats the marriage as if it never exists.

                A marriage is voidable if either of the parties is under the age of consent or consent was obtained by force or fraud. MCL 552.2.

To obtain an annulment, either party may file a petition or complaint for an annulment in the family division of the circuit court in the county where at least one of the parties resides. MCL 552.3. Jurisdiction for annulment, unlike divorce, does not depend on a specific length of residence. A resident of another state or country may file a petition as long as one party to the marriage is a resident of the county where the petition is filed. Hill v Hill, 354 Mich 475, 93 NW2d 157 (1958).  The petition and subsequent proceedings are the same as in a divorce proceeding. MCL 552.3. Generally speaking, this means there will be a trial if the grounds for annulment are disputed, as well as times to exchange witness lists, exhibit lists, trial briefs, etc., and discovery into the allegations. Child custody, parenting time and child support terms will be set, and property may still be divided.

                Thus, an annulment is not a quick way to undo a marriage. It may, however, be appropriate for religious purposes or to confirm a later marriage (in the event of alleged bigamy).

I DON'T LIKE MY FRIEND OF THE COURT RECOMMENDATION - NOW WHAT?

 OBJECT! AND DO IT QUICKLY -- FOR MOST ISSUES, YOU HAVE ONLY 21 DAYS TO FILE AND SERVE YOUR OBJECTION. 

            A party may obtain a de novo review on any matter that has been the subject of     a referee hearing and that resulted in a statement of findings and a recommended order by filing an appropriate objection.[1] Although the trial court may conduct the hearing by review of the record of proceedings with the referee, the trial court must allow  the parties to present live evidence as to matters objected to.[2]

            The trial court may, in its discretion, prohibit a party from presenting live on findings of fact to which     the party did not object and may find the referee’s findings conclusive as to matters to which neither party objected,[3] but the trial court must make independent conclusions as to matters to which a party did object.[4] So, be specific and detailed in your objection - whatever you do not object to is probably coming in.

            Demand a de novo hearing- a hearing "anew" before your judge, without deference to the Friend of the Court. It is your right. For example, in Cochrane v Brown,[5] the Court of Appeals reversed a lower court for limiting its review of a Friend of the Court recommendation following    a party’s objection to the referee’s findings of fact and conclusions of law, the file and transcripts.  The defendant-father objected to a referee’s recommendation denying his motion to modify custody.  The lower court conducted the hearing but did not allow him to present evidence because the lower court’s administrative policy permitted review of the record alone.[6] But, a hearing as contemplated in MCR 3.215 “based solely on review of the referee’s hearing record is permissible only with the consent of all parties,” and        the lower court “cannot simply adopt the referee’s recommendation without conducting its hearing de novo.”[7] The word “must” is a directive to allow live evidence.[8]

[1]               MCL 552.507(F); MCR 3.215(e)(4).

[2]               MCR 3.215(F)(1); see also Cochrane v Brown

[3]               MCR 3.215(F)(1)(a)-(c).

[4]               Drumm v Brodbeck, 276 Mich App 460; 740 NW2d 751 (2007).

[5]               234 Mich App 129; 592 NW2d 123 (1999).

[6]               Id.

[7]               Id.

[8]               Mann v Mann, 190 Mich App 526, 529; 476 NW2d 439 (1991) (citing Crampton v Crampton, 178 Mich App 362; 443 NW2d 419 (1989)).

WHEN WILL I NEED PERMISSION TO MOVE?

You need permission whenever your custody order or judgment says -- and, if your order or judgment is silent, the following laws apply:

According to Eickelberg and MCL 722.31, generally speaking, a parent must obtain the family court’s permission or the other parent’s permission to move more than 100 miles away if the parents share legal custody or physical custody. However, this rule does not apply when (a) the parents’ order sets forth a different mechanism for handling moves or (b) at the time of commencement of the action that resulted in issuing the custody order, the parties resided more than 100 miles away. In this case, the second exception applies.

So, if you were living more than 100 miles apart when the case started, the rule does not apply - interestingly, even if you move closer in the meantime.

The same is true if you and your ex do not share joint custody (legal or physical - one or the other - will do, and you must then follow the rule).

Before permitting a legal residence change otherwise restricted by the 100-mile rule, the trial court must consider five factors “with the child as the primary focus” in the deliberations:

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

[1]

            Even if the statute did apply, a court deciding a change of legal residence motion should first determine whether the movant has shown by a preponderance of the evidence that the change is warranted based on the above factors.[3] If the movant meets this burden, the court must decide if an established custodial environment exists.[4]. If the court finds that there is an established custodial environment, the court must next decide whether the change of residence would alter that environment.[5] If the residence change will alter the established custodial environment, the movant must show by clear and convincing evidence that the move “is in the child’s best interest.”[6]

           ADDITIONALY, FOR ANY MOVE, if a move requires a modification of parenting time that results in a change in the children's custodial environment, then the court must consider the best-interest factors set forth in MCL 722.23 to determine whether the moving party proved by clear and convincing evidence that the move and consequent change in the established custodial environment and parenting time is in the children's best interests.[7]

SO, IF YOU ARE FACING A MOVE, ASK YOURSELF THESE QUESTIONS:

1. DOES THE 100 MILE RULE APPLY TO ME?

2. IF NOT, DOES THE MOVE REQUIRE THAT A CHANGE PARENTING TIME?

3. IF THE ANSWER IS YES, WILL MY PROPOSAL CHANGE CUSTODY BECAUSE MY CHILD'S ESTABLISHED ENVIRONMENT WILL ALSO CHANGE?

[1]           MCL 722.31(4).

[2]           MCL 722.31(2).

[3]           Rains v Rains, 301 Mich App 313, 326–327, 836 NW2d 709 (2013).

[4]           Id.

[5]           Id.

[6]           Id.

[7]           Rittershaus v Rittershaus, 273 Mich App 462, 465, 730 NW2d 262 (2007).