WHAT RIGHTS AM I GIVING UP IF I AGREE TO ARBITRATE MY CASE?

According to Michigan's Domestic Relations Arbitration Act, MCL 600.5070 et seq., the family court cannot order a party to participate in arbitration -- rather, arbitration is voluntary. Additionally, the parties' agreement to arbitrate must be in writing. The family court must also ensure the parties have been advised of their rights and what they give up if they agree to arbitrate, in lieu of try, their case.

Each party must acknowledge, in writing or on the record, that he or she has been informed in plain language of all of the following:

(a) Arbitration is voluntary.

(b) Arbitration is binding and the right of appeal is limited.

(c) Arbitration is not recommended for cases involving domestic violence.

(d) Arbitration may not be appropriate in all cases.

(e) The arbitrator's powers and duties are delineated in a written arbitration agreement that all parties must sign before arbitration commences.

(f) During arbitration, the arbitrator has the power to decide each issue assigned to arbitration under the arbitration agreement. The court will, however, enforce the arbitrator's decisions on those issues.

(g) The party may consult with an attorney before entering into the arbitration process or may choose to be represented by an attorney throughout the entire process.

(h) If the party cannot afford an attorney, the party may wish to seek free legal services, which may or may not be available.

(i) A party to arbitration will be responsible, either solely or jointly with other parties, to pay for the cost of the arbitration, including fees for the arbitrator's services. In comparison, a party does not pay for the court to hear and decide an issue, except for payment of filing and other court fees prescribed by statute or court rule for which the party is responsible regardless of the use of arbitration.

SHOULD I STAY MARRIED TO KEEP MY HEALTH INSURANCE?

Two words are likely to strike dread in the pit of your stomach more than divorce – health insurance. Will you lose it? How can you afford it? Will your spouse have to pay for it? Will you have to pay for it? Who will pay for your children? And what if you are divorced and unemployed? These questions are, for some of my clients, reasons to steer clear of divorce – why not remain unhappily married but healthy, rather than divorced and without health insurance?

But is staying married the right answer? The best answer for each case depends on the facts and circumstances. However, for one reason or another, often the answer is, No. Ifyou are not earning as much as you did, now might be the time to divorce, when your income is lower and you have less money to give as spousal support or child support.     If you lost your retirement savings in the stock market, why not divorce when you have less to share with your spouse? If everyday you dread your spouse’s biting remarks, fights, over-spending, text messages to boyfriends or nagging ones to you, etc., and everyday sucks the life out of you, or you and your children, why stay?

If health insurance is the thing holding you back, you really should have a discussion with your attorney. You may negotiate for your soon-to-be ex to pay your health insurance, and you may qualify for employer-provided, free or low cost insurance programs. You do have options! Here are the most common options:

COBRA

“COBRA” is the acronym for the Consolidated Omnibus Reconciliation Act.   This was a federal overhaul of laws that included laws for private employers who provide group plan health insurance. The laws require the employer to continue to make health insurance available for employees and certain family members after the occurrence of a qualifying event. The continued health insurance is called “COBRA benefits” for short.

Not every employer needs to. COBRA applies to group health plans for employers with 20 or more employees on more than one-half of the business days in the previous calendar year. 

And not every loss of insurance triggers COBRA benefits. There must be a “qualifying event.” For the employee, this means a loss of the number of hours of work or voluntary or involuntary termination (for reasons other than gross misconduct). For the employee’s spouse or children, this means, in addition to the employee’s qualifying events, divorce or legal separation, the employee’s death or the employee becoming entitled to Medicare. Moreover, the employee must be enrolled in the group health plan when the qualifying event occurs, and that plan must continue to exist while you receive COBRA benefits.

If a qualifying event occurs, you must act quickly if you believe you or your children are entitled to COBRA benefits! The group health plan beneficiary must notify the plan administrator within 60 days of the qualifying event. For example, if your spouse provides your health insurance through her employer’s group health plan and, as a result of your divorce, you will lose that health insurance coverage, you must notify the plan administrator of your divorce within 60 days of your divorce. The plan administrator has 14 days thereafter to send you an election form, which usually comes with supporting material about the plan’s costs and coverages, and you have 60 days to accept or reject the COBRA benefits. If you accept them, then you will have 45 days to pay your first premium.

The premium can be a hefty amount. Usually, unless the plan or the employer has contracted to accept less, the premium is the entire cost or up to 102% of the cost to provide the insurance to the employee. However, if your divorce occurred after September 1, 2008, you may qualify for an additional federal benefit to help pay the cost under the American Recovery and Reinvestment Act of 2009, part of the federal stimulus package that saw extensions for unemployment benefits, reinvestment into infrastructure, loans to banks and the automotive industry, and help for those in a precarious position with health insurance, like divorcing families.

The federal government maintains a call center to answer COBRA questions.    For specific questions, contact your attorney and your or your spouse’s health insurance plan administrator. For general information, however, you may call a federal COBRA benefits advisor at 1-866-444-EBSA . 

Medicaid

Medicaid provides health insurance to certain low-income adults and families and all children living below the federal poverty level. It is a program funded partly with state money and partly with federal money, and each state administers it under that state’s eligibility requirements. While poverty is a key requirement, poverty along is insufficient; the applicant or the applicant’s family must fall within one of the state-specified categories of recipients, which include individuals who are pregnant, disabled, of a specified age, severely poor and a US citizen or a lawfully admitted immigrant. Each state’s application and program requirements are different. Therefore, you should contact your department of community health to learn what requirements apply in your state.

If you or your children qualify, Medicaid could pay for preventive care, screening and treatment of health conditions and diseases, medications, physician visits,        hospital visits and dental and vision services.

 To learn more about the Medicaid services in your state, contact your community health department, a hospital client account department (they will have Medicaid information and applications for you, but, beware, they cannot provide legal advice), or the federal Medicaid call center at 1-877-543-7669.

CHIP

 But what if COBRA benefits are too expensive and you and your children do not qualify for Medicaid? Until you can afford health insurance for your family or your employer provides it as a benefit of employment, apply for CHIP for your children and consider purchasing private health insurance for yourself.

 “CHIP” is the acronym for the Children’s Health Insurance Program. The program started in 1997 as a partnership between the federal government and the states to provide low-cost health insurance for families who cannot afford COBRA benefits or private health insurance but earn too much to qualify for Medicaid. In February 2009, President Obama refunded the program. Each state determines which children are eligible, premiums, cost-sharing, administrative procedures and benefits packages. At a minimum, however, the state must pay for routine check-ups (that are always paid) and immunizations, dental, hospital care, and laboratory and x-ray services (that may come at a reduced cost).

 The program is available in all states. To lean more about the program in your state and how to apply, call the federal call center at 1-877-KIDS NOW.

HEALTH INSURANCE EXCHANGE/“OBAMACARE”

If you don’t have health insurance through a job, Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), or another source that provides qualifying coverage, the Marketplace can help you get covered.

•If you have job-based insurance: You can buy a plan through the Marketplace, but you’ll pay full price unless your employer’s insurance doesn’t meet certain standards. Most job-based plans do.

•If you have Medicare: You can’t switch to Marketplace insurance, supplement your coverage with a Marketplace plan, or buy a Marketplace dental plan. Learn about Medicare and the Marketplace

Your savings depend on your estimate of your expected income for the calendar year in which you enroll. Most people who apply qualify for a premium tax credit that lowers their monthly insurance bill. Some also save on out-of-pocket costs like deductibles and copayments. Coverage extends to preexisting conditions, preventive care and “essential health benefits,” including checkups, ER visits, labs, rehabilitation and prescriptions. Dental coverage is also an option.

            Before your divorce, use the health insurance available to you! (Strategically, I recommend my clients do this before we file for divorce so that any debts for co-pays, lab costs, etc., are more likely to be treated as marital debt to be divided between the spouses, rather than separate debt to be foisted on one party) Go to that annual check up. Fill your prescriptions. Have your eyes examined and your teeth cleaned. If a serious surgery is in your future, seriously consider when and why you will divorce. Talk to your doctors about your immediate and future health needs, what insurance to obtain and whether low-cost substitutes (e.g., a generic medicine) are available to you.

            Just staying married may not be the healthiest choice. A man stopped to my office recently ashen, sluggish and in pain. He was tall, average weight and middle-aged, but he looked like an old man, like something out of a Dickens novel, with years of an unhappy marriage weighing him down. He told me he stayed married for his four children’s sake. They grew up to be two doctors, a vocalist and an engineer. That was 31 years ago – 31 years of walking on eggshells, as he described it – and the children have all returned to him to ask him why he stayed married so long. He lamented that he missed out on a lot of happiness in his life, and, had he known his children would have supported a divorce, he would have divorced his wife sooner. Now, he has stress ulcers, high blood pressure and chronic heartburn. He swears they are related to his marriage – and he even asked if he could sue for “pain and suffering.” (This short answer is, usually, no.)

            But he makes a point – it is not always best to stay married for health insurance. You do have options.  

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)).

WHAT DOES THE FAMILY COURT CONSIDER WHEN FIXING MY PARENTING TIME SCHEDULE?

My order says parenting time is supposed to be in frequency, type and duration so as to foster my relationship with my child. What does this mean?

At the request of either parent, the family court must give a specific schedule for parenting time. If you do not have a specific schedule and your arrangements with your ex are not working, petition the family court for one. It is your and your child’s right.

Michigan law specifies what the family court must consider.

You can read the entire Michigan Parenting Time Guideline here:

http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/pt_gdlns.pdf

In order to determine the length, frequency and type of parenting time, the family court considers several factors (MCL 722.27a).

1. The existence of any special circumstances or needs of the child.

2. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.

3. The reasonable likelihood of abuse or neglect of the child during parenting time.

4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.

5. The inconvenience to, and burdensome impact or effect on, the child of traveling to and from the parenting time.

6. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.

7. Whether the parent has frequently failed to exercise reasonable parenting time.

8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.

9. Any other relevant factors.

In order to provide the necessary structure for parenting time to occur, parenting time orders are required to be granted in specific terms if requested by a party and may contain any reasonable terms or conditions (MCL 722.27a (8)). Examples of such terms and conditions include:

1. Division of the responsibility to transport the child(ren).

2. Division of the cost of transporting the child(ren).

3. Restrictions on the presence of third persons during parenting time.

4. Requirements that the child(ren) be ready for parenting time at a specific time.

5. Requirements that the parent arrive for parenting time and return the child(ren) from parenting time at specific times.

6. Requirements that parenting time occur in the presence of a third person or agency.

7. Requirements that a party post a bond to assure compliance with a parenting time order.

8. Requirements of reasonable notice when parenting time will not occur.

9. Any other reasonable condition determined to be appropriate in the particular case.

DO I NEED TO PROVE FAULT?

Another day, another celebrity marriage breaking up because so-and-so cheated, squandered money, etc., etc. That's a basis for divorce, right?

Celebrity lawyers point to these transgressions as “the basis” for a divorce. Talking about them at length makes for great television, but it is misleading. In most states, there is no need to prove a “basis” for divorce, other than that the marriage is irretrievably broken. That is, one spouse need not prove the other spouse cheated or is otherwise at fault for the marriage’s breakdown. Divorce in the United States is almost exclusively no-fault, and in those few states that consider “fault” as a basis for divorce, fault is more a formality than the be-all-end-all of the case.

Parties are often confused about the part fault plays in a divorce. Each state has different rules, and you should consult a lawyer in your state for the rules specific to your case. In general, however, fault is a mere formality for obtaining a divorce. In Michigan, where I practice, for example, the party filing for divorce must only allege that there has been a breakdown in the marriage relationship to the extent the objects of matrimony have been destroyed and there remains no reasonable likelihood of reconciliation.

Period.

Nothing more.

In fact, most judges will not even let the parties testify about who was “more at fault” for this breakdown to grant the divorce.

This is not to say that fault is completely irrelevant. Most states will consider fault when dividing property and ordering child custody. In Michigan, for example, fault is relevant if the fault is related to marital property (e.g., one spouse secretly incurred debt to fuel a gambling addiction). Fault is also relevant if it reflects on parenting (e.g., one spouse deserted the children for a lover).

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).

WHERE DO I GET INFO ON MAKEUP PARENTING TIME?

Michigan law, MCL 552.642,  requires each circuit to establish a makeup parenting time policy for wrongful denials of parenting time. Under the policy, the makeup parenting time must be of the same type and duration as the time denied, including weekend parenting time for weekend parenting time and holiday parenting time for holiday parenting time. The policy must provide that makeup parenting time be taken within one year after the wrongfully denied parenting time was to have occurred. The wrongfully denied parent must be given the right to choose the time of makeup parenting time but be required to notify the FOC and the other parent in writing not less than one week before the desired makeup parenting time for weekend or weekday parenting time and 28 days in advance for makeup holiday or summer parenting time.

Makeup parenting time is normally used as a remedy for violations that are not likely to recur. If the parenting time denial is severe, makeup parenting time is not usually a good remedy. For instance, makeup parenting time is not appropriate when the custodial parent has frequently denied parenting time and is likely to do so in the future. Using makeup parenting time in such a circumstance merely postpones the ultimate resolution of the issue. Makeup parenting time is also not a good remedy for cases involving domestic violence because it does not address the underlying dynamic of power and control.  For these problems, parents should seek to modify parenting time and/or child custody and for contempt sanctions.

For detailed discussion of the steps the FOC may take in enforcing custody and parenting time violations, see SCAO Administrative Memorandum 2002-11, Guidelines for Enforcement of Custody and Parenting Time Violations, available on the SCAO website.

CAN MY SOON-TO-BE EX JUST LIE LIKE THAT?

Ever receive something your significant other and/or her lawyer wrote, only to be dismayed by the NUMBER OF LIES? Although, in most states, court papers are immune from defamation lawsuits, that does not mean the author (or supporter) has a FREE PASS to write whatever she wants.

            When an attorney signs a document, the attorney certifies that (1) he or she has read the document, (2) it is well-grounded in fact and "warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law," and (3) the purpose of the document is not improper.[1] The family court may sua sponte sanction an attorney, the client, or both, who signs a document that violates this court rule.[2]

            The family court may also impose sanctions under MCR 2.114 for an action that is frivolous under MCL 600.2591.[3] One of the ways an action is frivolous is if "[t]he party's legal position was devoid of arguable legal merit."[4] One purpose of punishing frivolous claims with sanctions is to deter attorneys from asserting claims that they have not sufficiently investigated or researched.

            To impose a sanction under MCR 2.114(E), the family court must first find that an attorney or party has signed a pleading in violation of MCR 2.114(A)-(D). The determination whether an attorney or party has violated the "reasonable inquiry" standard of MCR 2.114(D)(2) depends largely on the facts and circumstances of the claim.[5]

            MCR 2.113(A) makes the provisions of MCR 2.114 applicable to both motions and affidavits. In contrast to its predecessor rule, Fed. R. Civ. P. 11 is mandatory in that the court "shall," upon finding a violation of the rule, impose sanctions liberally to deter abusive litigation tactics and reduce the filing of frivolous claims. Also in contrast to its predecessor is the rule's application of an objective standard of reasonableness, since prior to the amendment courts would only award attorney fees on a finding that the attorney acted for vexatious or oppressive reasons in bad faith. The new rule, however, explicitly and unambiguously imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the viability of the pleading before it is signed. This inquiry must extend to both law and fact.[6]

[1]           MCR 2.114(D).

[2]           MCR 2.114(E).

[3]           Harrison v Munson Healthcare, Inc, 304 Mich App 1, 40; 851 NW2d 549 (2014).

[4]           MCL 600.2591(3)(a)(iii).

[5]           Lloyd v Avadenka, 158 Mich App 623, 630; 405 NW2d 141 (1987).

[6]           Porter v Porter, 285 Mich App 450; 776 NW2d 377 (2009).

CAN THE JUDGE AWARD ME ATTORNEY FEES, AND HOW?

In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, and court rule.  MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCL 552.13(1), authorizes the court to require a party to pay to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. Attorney fees are authorized when the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of litigation. Stackhouse v Stackhouse, 193 Mich App 437 (1992).

When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. Miller v Meijer, Inc, 219 Mich App 476, 479-480 (1996). Reasonable fees are not equivalent to actual fees charged. Zdrojewski, 254 Mich App at 72. A hearing need not be a trial, if there is sufficient information on the record for the judge to make the reasonableness determination. Id.

In determining whether requested attorney fees are reasonable, the trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services.... In determining this number, the court should use reliable surveys or other credible evidence of the legal market. (The Michigan Bar Journal article not only ranks fees by percentile, it differentiates fee rates based on locality, years of practice, fields of practice including litigation, personal injury, and transactional litigation.) This number should be multiplied by the reasonable number of hours expended in the case.... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee. Smith v Khouri, 481 Mich 519 (2008).  The burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” This “satisfactory evidence” of customary fees “can be established by testimony or empirical data found in surveys and other reliable reports.” Id. at 531–532. Mere “anecdotal statements” are not sufficient. Id. at 532.  To determine “the reasonable number of hours expended in the case,” the attorney requesting fees “must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness.” The burden of establishing the reasonableness of the hours reported lies with the attorney requesting fees. Only after the trial court has determined a reasonable fee by multiplying the reasonable hourly rate by a reasonable number of hours billed, should the court “consider the other factors and determine whether they support an increase or decrease in the base number.

Wood v DAIIE, 413 Mich 573 (1982) lists six factors to be considered in determining a reasonable attorney fee: 

(1) the professional standing and experience of the attorney;

(2) the skill, time and labor involved;

(3) the amount in question and the results achieved;

(4) the difficulty of the case;

(5) the expenses incurred; and

(6) the nature and length of the professional relationship with the client.

The Michigan Rules of Professional Conduct lists eight factors in Rule 1.5(a) for the determination of attorney fees: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

Average rates for attorney by geographic are:  http://michbar.org/pmrc/finance.cfm

WE'RE A NO-FAULT STATE, RIGHT?

YES, BUT...

There’s a common misconception that “no-fault” divorce means fault is totally irrelevant – as if one spouse can have an affair and the affair means nothing because the divorce is “no fault.” That is incorrect. “No-fault” means neither party needs to prove the other party is at fault for the breakdown in the marriage, e.g. with a string of e-mails that chronicle a sordid affair, to obtain a divorce. “No fault” does not mean fault is totally irrelevant to the divorce.

In many states, like Michigan, fault is relevant to alimony, property division and child custody awards. There is a great variety among states because each has its own body of common law (the prior court opinions that may apply to the case) and its own statutes (the law “on the books” from the legislature). However, with the rise of “no fault” divorce statutes in the 1970s, a general trend emerged that fault could be an issue but not “the” issue for divorce. What was once a fault-focused case now became a case focused on fault only as it affected property, the need for or ability to pay alimony, and child custody.

In Welling v Welling, 233 Mich App 708, 592 NW2d 822 (1999), defendant claimed that the trial court had erred in concluding that his alcohol problems constituted marital fault, in its determination of spousal support and property division. The court of appeals affirmed the trial court, holding that the trial court did not clearly err. The court noted that the trial court did not consider defendant’s status as an alcoholic but referred to his behavior while he was drinking. The court, citing Sparks, stated that defendant’s conduct presented a greater reason for the breakdown of the relationship. The court also recognized that the trial court did not give inordinately excessive weight to this factor but also looked at the length of the marriage, the difference in the parties’ earnings, the fact that plaintiff had been out of the full-time workforce for most of the marriage, the fact that plaintiff needed to secure health insurance for herself after the divorce, and the fact that plaintiff had been struggling to make ends meet since the divorce.

Past conduct has long been recognized as a factor in the determination of spousal support. Johnson v Johnson, 346 Mich 418, 78 NW2d 216 (1956) (vile temper, obscene language, accusations of infidelity, and insanity deemed to have forced wife to file for divorce); Ianitelli v Ianitelli, 199 Mich App 641, 502 NW2d 691 (1993) (wife’s cohabitation with third party may not, by itself, be used later to support modification of spousal support); Demman v Demman, 195 Mich App 109, 489 NW2d 161 (1992) (defendant’s actions and uncaring attitude caused marital breakup); McNamara v McNamara, 178 Mich App 382, 443 NW2d 511 (1989), modified on other grounds, 436 Mich 862, 460 NW2d 222 (1990) (periodic spousal support could be used to compensate wife for her assistance in helping plaintiff attain his dental degree); Cloyd v Cloyd, 165 Mich App 755, 419 NW2d 455 (1988); Zecchin v Zecchin, 149 Mich App 723, 386 NW2d 652 (1986) (trial court wrongly found wife at fault because she asked husband to leave marital home; court should have looked at conduct of both parties); Davey v Davey, 106 Mich App 579, 308 NW2d 468 (1981); Abadi v Abadi, 78 Mich App 73, 259 NW2d 244 (1977) (wife feared personal danger from husband); Feldman v Feldman, 55 Mich App 147, 222 NW2d 2 (1974) (wife’s adultery taken into account by court in striking spousal support award); Van Ommen v Van Ommen, 25 Mich App 652, 181 NW2d 634 (1970) (wife’s failure to testify was improperly considered admission of “serious fault”).  

WHAT ARE MY OPTIONS FOR LEGALLY ENDING MY MARRIAGE?

There are three distinct ways to legally end a marriage relationship in Michigan: divorce, separate maintenance and annulment.

In a separate maintenance action, the parties are still technically married, but the court has already divided their property and debts and awarded spousal support, if any; these actions are usually maintained for health insurance or religious reasons, and they are rare. If the other party requests a divorce, the court will hear the divorce action instead.

In an annulment action, the court issues an order stating that the marriage never legally occurred. The grounds for an annulment include bigamy, fraud, insanity and attempted marriage of a minor. Like separate maintenance actions, annulment actions are also rare. In either action, child custody and child support proceed just as if the action were a divorce.

People seeking a divorce are often confused about the concept of fault as used in Michigan law. Michigan is a no-fault divorce state. The complaint for divorce need only allege that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood of reconciliation. This does not mean, however, that Michigan does not consider fault. Fault is relevant in some instances in child custody, spousal support and property distribution.

Read our detailed legal summary of Michigan including groups, residency, custody, child support, spousal support, and property to learn more.

WILL MY DIVORCE USE THE FRIEND OF THE COURT? AND WHAT IS IT, ANYWAY?

            Divorces in Michigan fall into two categories: those involving the Friend of the Court and those not. The Friend of the Court is  an agency-like body that assists the Family Division of the Circuit Court with child custody and parenting time, child support and (depending on the county) spousal support. Each county has the authority to establish how its Friend of the Court operates, but, in general, in each county the Friend of the Court investigates, recommends orders and enforces orders for child custody, parenting time and support.

Both categories have these in common:

*To obtain a divorce in Michigan, one of the parties must have resided in Michigan for at least 180 days, and the case is filed in the county in which the non-filing party resides for divorce for at least 10 days prior to filing. These residency requirements are jurisdictional, meaning neither party can waive them (for example, if you only resided in county A for 9 days, you could not file in county A).

*Michigan is a no-fault divorce state. The complaint for divorce need only allege that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood of reconciliation. This does not mean, however, that Michigan does not consider fault. Fault is relevant in some instances in child custody, spousal support and property distribution.

*There is a filing fee of $150 for a divorce without children and a $230 for a divorce with children, but the parties may petition the court to waive these fees based on poverty.

* There is a waiting period of 60 days for a divorce without children and a waiting period of 6 months for a divorce with children. However, if there is unusual hardship or compelling necessity, the court may waive the waiting period.

*“Equitable distribution” governs property division. The court starts with the presumption that the parties should each receive a “roughly congruent” share of the marital property. Marital property is any property (including debt) acquired during the marriage, from any source, and not property acquired before the marriage and passive increases in the value of that property. However, special rules apply to gifts (whether they were for the marriage or for the individual), inheritances, and commingled property. There is no “bright-line” rule to divide property; instead, the court considers several factors, including the length of the marriage, the parties’ needs, age, the value of the property, and so forth. Fault is, in general, relevant if the fault that caused the breakdown of the marriage is related to marital property (e.g., your spouse had a gambling habit and, as a result, acquired substantial debt by refinancing your marital home). The court may also invade each party’s separate property if the other party contributed to the increase in value of that property or if the other party “needs” a share of the property, using the same multi-factored analysis.  For short-term marriages (think, 3 years or less, generally), each party usually retains his or her property and debt, except large items (e.g., a joint credit card or a house) are divided equitably.

Property negotiation consumes most of the waiting period.

 

In addition, for Friend of the Court cases or cases involving children or support:

*Alimony in Michigan is called “spousal support.” The court may award temporary spousal support during the action and rehabilitative or permanent support in the final judgment if the judge determines that the awarded party “needs” support and the other party is able to pay it

 

 *“Custody” has two components, “legal custody” and “physical custody.” Usually, the parties share legal custody. This means the power to make the child’s important life decisions, such as educational and medical decisions. Physical custody is the actual possession and time with the child. (Because the term “physical custody” suggests the other parent has no time with the child, courts increasingly call physical custody “allocation of parenting time.”) The court must presume each child deserves an equal relationship with both parents, and the court must inform the parties of the option for joint custody. The court must also try to maintain the child’s established custodial environment. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. Any custody decision must be in the child’s best interests, considering the love, bond, home and school environment, capacity and disposition of the parties to provide for the child, religion, if any, history of care-giving, willingness to foster and encourage a relationship with the other parent, domestic violence, and any other fact relevant to the child.

 

*Child support is based on the Michigan Child Support Formula. The MCSF calculates support using each parent’s income and overnights with the child, with credit given for actual childcare and healthcare costs. The Friend of the Court utilizes a computer program with the MCSF to calculate each party’s support obligation, if any. The paying parent may ask to deviate from the formula amount if it is “unjust or inappropriate.”

*Parties may opt out of the Friend of the Court system, but should only after a thorough consultation with an attorney because the Friend of the Court offers order enforcement, monitoring, counseling and complaint services for a nominal fee, and often for free.

Whether or not a Friend of the Court case, Michigan courts encourage settlements!      The court will order (or strongly encourage) the parties to attend mediation, conciliation, arbitration, negotiation, and any other appropriate alternate dispute resolution mechanism before a trial. Divorce trials are rare, though necessary to protect a parent’s constitutional rights to his child and his property, and these alternate dispute resolution mechanisms are sometimes free, always creative and allow clients and attorneys to fashion a divorce judgment tailored to the family’s needs.

To learn more about Michigan family law, to locate courthouses and to find court resources, visit the State Court Administrative Office’s website -- www.courts.michigan.gov.

WHAT SERVICES DOES THE FRIEND OF THE COURT PROVIDE?

If you are considering opting out of Friend of the Court services, think again -- you will be walking away from many helpful, and often free, services: 

a. Accounting Services

Friends of the court must collect support and disburse it within 48 hours. Friend of the court accounting services include:

            1) friend of the court accounting for payments received and sent,

            2) adjustments of support for parenting time or other credits,

            3) annual statements of accounts, if requested.

b. Support Enforcement Services

The friend of the court must begin to enforce support when one month of support is overdue. For friend of the court cases, child-support enforcement services include:

• paying support out of tax refunds.

• asking the court to order the nonpaying party to come to court to explain the failure to pay.

• having unpaid support paid out of property the payer owns.

• reporting support arrearage to a consumer reporting agency or requesting that the payer’s license(s) be suspended.

• collecting support by an income withholding order.

c. Medical Support Enforcement Services

The friend of the court is required to recommend how the parents divide health-care expenses and to take action to collect the amounts that a parent fails or refuses to pay. When a parent is required to insure the children, the friend of the court is authorized to instruct an employer to enroll the children in an insurance plan when the parent fails or refuses to do so.

d. Support Review and Modification Services

Once every three years, persons with friend of the court cases may request the friend of the court to review the support amount. After completing the review, the friend of the court must file a motion to raise or lower support, or inform the parties that it recommends no change. It must also review support when changed circumstances lead it to believe that support should be modified.

e. Custody and Parenting-Time Investigation Services

For disputes about custody or parenting time in friend of the court cases, the friend of the court sometimes must investigate and provide reports to the parties and the court.

f. Mediation Services

Friend of the court offices must provide mediation services to help parties with friend of the court cases settle custody and parenting-time disputes.

g. Custody and Parenting-Time Enforcement Services

For friend of the court cases, the friend of the court must enforce custody and parenting time when a party complains that it is violated. Child-custody and parenting-time enforcement services include:

• asking the court to order the noncooperating party to come to court to explain the failure to obey the parenting-time order.

• suspending the licenses of individuals who deny parenting time.

• awarding makeup parenting time.

• joint meetings to resolve complaints.

SHOULD I DELAY MY DIVORCE TO DODGE TAXES?

If you are divorcing over the next three months – that is, over the holiday season – then believe it or not, you may be divorcing at the best time of the year. This is because many judges will allow you and your soon-to-be ex to delay or speed up the divorce process, within a reasonable time, for tax purposes.  For example, if the two of you filing together can take advantage of more exemptions and deductions, not to mention the preferential “married / filing jointly” tax status, you may wish to delay your divorce through the beginning of January 2014. By comparison, if your spouse failed to withhold taxes from her paycheck this year and/or you are leery of her claimed deductions and you do not want to be liable, to the IRS, for her tax debt, then you may want to divorce before the end of December 2013 so that you may file a “single” or “head of household” return.

Whether you delay or speed up the process should be a discussion you have with your attorney and tax professional, with these common issues in mind --

Filing Status – For federal tax purposes, your marital status as of December 31, 2013 will determine what filing statuses are available to you.  If you are married on that day, then you may file your return with the status “married / filing jointly” or the status “married / filing separately.”  Generally, the former status allows for a larger net refund, as the spouses can combine their income for tax bracket purposes. However, the joint status also means that you vouch for your spouse’s taxes, and are equally liable if it turns out the two of you must pay in, even in the event of an audit.

Dependency Exemptions – If you decide to divorce before the end of this year, then be sure your divorce decree specifies who claims what children as dependents for tax purposes. If you decree does not specify, then the parent who has more than one-half of the year with the child(ren) in custody is entitled to claim the exemption (even if the other parent paid more for child support, school, activities, healthcare, etc.) If the parents are equal, then the parent who pays child support claims the child(ren). If the time is equal and neither pays child support to the other, then the parent who has the higher AGI (which may vary annually) claims the child(ren). These are the default rules set forth in the Internal Revenue Code, and although some judges will require parents to stick with the default rules, most judges will divide the exemption(s) or encourage the parents to do so in a settlement agreement. The good news is, the IRS allows parents to do so, so long as that agreement is in writing and both parents provide certain forms at tax time.

“Married, Filing Separate”  - If you are leery about what your ex has been doing this tax year, you may wish to file a separatetax return, even if you are married as of the end of the year. Always check with your attorney and a tax professional, though, because the divorce court may still treat you as responsible for a share of your ex’s as marital debt, and that debt may be less if you file a joint return and stay married through January 2014. Similarly, if your income taxes are past due, then the IRS may hold each of you accountable for a proportionate share of the entire debt, the proportion being the same proportion as your income, without a joint return.

Common Deductions-  If you are looking to deduct certain expenses for your marital home, or childcare expenses, or college expenses, or even some tax preparation expenses, some of which are capped, then you should consider remaining married through the end of the year to qualify for the largest deduction. If you do not, then be sure your divorce decree specifies who can deduct what, clearly, in the event the IRS has questions for the both of you.

A carefully drafted divorce decree and/or settlement agreement is key. The agreement should specify when your divorce will be final (before or after December 31, 2013), how you and your spouse will file your taxes, what happens in the event of an audit (e.g., the wrong-doing spouse has to reimburse the other for payments made as the result of the wrong-doing), who will claim what otherwise common household deductions and exemptions, who will claim what child and what forms each will fill out to do so, and when, and, in the event of a large tax bill, whether you and your spouse will deviate from an alimony/maintenance or property settlement payment until the tax bill is paid in full.

Most of all, always speak to a CPA and an attorney. We gave you the basics here, but there are entire encyclopedias devoted to the details, and, therefore, nothing in this article should be construed as recommending a particular course of action or any illegal action or action intended to avoid taxes.  The tax rules applicable to divorcing and divorced spouses are intricate and often changing – but, if you have this discussion now, you may find your divorce over the holiday season to be highly beneficial.

CAN I OBJECT TO THE FRIEND OF THE COURT REFEREE'S RECOMMENDATIONS FOR MY CASE?

YES, but you must object within 21 days of the date of service of the recommendation.

“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]


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] ”

         

In many counties, you must also provide the transcripts for the referee's hearing. In all counties, you must file your objection citing specific errors of law and/or fact and file and serve that objection, along with a notice of hearing, on all parties (or their attorneys) of record.

You can learn more about Michigan's Friend of the Court system here: http://courts.mi.gov/administration/scao/officesprograms/foc/Pages/default.aspx

[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)).

WHAT DO I DO IF MY EX DENIES MY PARENTING TIME?

If parents do not agree to make-up parenting time, the parent who was denied parenting time must put the complaint in writing to receive assistance from the Friend of the Court. The complaint should contain the date(s) and time(s) when parenting time was denied and a brief description of the circumstances. The complaint should be filed as soon as possible, but no later than fifty-six (56) days after the violation. If a denial complaint is filed fifty-six (56) days after a violation, the Friend of the Court has discretion to decline enforcement action. If the Friend of the Court takes action, this action may include:

* a recommendation and order for make-up time

* family counseling

* a fine

* a recommendation for a contempt hearing with the judge

 

A Parenting Time Complaint form is available online at http://courts.mi.gov/Administration/SCAO/Forms/Pages/Domestic-Relations.aspx

HELP! CAN I CHANGE CHILD SUPPORT NOW THAT I'VE LOST MY JOB?

I lost my job and cannot afford to pay my child support. What should I do next?

If you lost your job and cannot afford to pay your child support, your circumstances have changed, and you should try to change your support amount immediately. Any child support payments that are due before you try to change your support cannot be reduced after they were due. Any change in child support ordered by the court will start on the day the other parent is notified that you have asked the court to change your child support amount, not on the day you become unemployed.  KEEP IN MIND, voluntarily becoming unemployed or underemployed won't cut it -- you will be IMPUTED that income, whether or not you still earn it.

How can I change my child support amount?

There are two ways to change child support payment amounts. First, you can ask the friend of the court (FOC) to review your child support order. The FOC will review a child support order that is older than three years and when more than three years’ time has passed since the FOC last reviewed the child support amount. If the order has changed within the last three years or if less time than three years has elapsed since the FOC last reviewed the child support order, the FOC can review child support only when there has been a change in circumstances. The FOC can usually review child support amounts if you have lost your job. If the FOC review agrees that the support order should change, the FOC will ask the court to change the order.

You can also change child support amounts through the court by filing a Motion Regarding Support (Form FOC 50). You can get a copy of the form from your local FOC or print one from: http://courts.michigan.gov/scao/courtforms/domesticrelations/drindex.htm.

WILL THE JUDGE TERMINATE ALIMONY NOW THAT MY EX LIVES WITH BOYFRIEND?

Maybe, if the live-in situation is akin to marriage, and assuming the two of you did not negotiate for a non-modifiable alimony obligation to the contrary.

Cohabitation is a basis to terminate or suspend a spousal support obligation. As set forth in Smith v Smith,[1] the family court is to look to the totality of circumstances – that is, engage in fact-finding- to determine whether the payee and alleged paramour’s cohabitation is in a sustained relationship similar to marriage. The family court should look to the following factors: “(1) there must be an actual living together, that is, the man and woman must reside together in the same home or apartment; (2) such a living together must be of a sustained duration; and (3) the couple must share expenses with respect to financing the residence (e.g., rent or mortgage payments) and incidental daily expenses (e.g., groceries).”[2] 

Additionally, in assessing the totality of the circumstances, the family court should consider: (1) whether defendant and her boyfriend intended to cohabitate, (2) whether they held themselves out as living together, (3) whether they assumed obligations generally arising from ceremonial marriage, (4) whether a sexual relationship existed,     (5) whether marriage was contemplated, (5) whether they used one another’s addresses, (6) whether they kept joint accounts, (7) whether they were economically interdependent, and (8) whether defendant used her spousal support to subsidize the alleged cohabitation.[3]  However, ‘because no one factor of a couple’s relationship is dispositive on the question of cohabitation, the fact-finder should consider the totality of the circumstances in each particular case.”[4]

[1]               278 Mich App 198; 748 NW2d 258 (2008).

[2]               Id.

[3]               Id.

[4]               Id.

BUYER'S REMORSE - HOW EASY IS IT TO GET OUT OF MY PROPERTY SETTLEMENT AGREEMENT?

NOT VERY EASY - AT ALL.

Divorce settlement agreements are, essentially, contracts between spouses that are approved by the family court. To form a valid contract, there must be (1) spouses competent to contract, (2) a proper subject matter, (3) legal consideration, (4) mutuality of agreement between the spouses and (5) mutuality of obligation between the spouses.[1] Spouses are competent if they are the age of majority (18, or 16 with parental consent), sound mind and not under any illegal or unconscionable restrains (such as coercion).[2] However, unilateral mistake is not a basis to set aside a contract   - rather, being of “sound mind” means knowing what one is doing, not necessarily the effect of risks, benefits or knowledge the other party may have.[3] Consideration is any legal detriment that has been bargained for in exchange for a promise.[4] For mutuality of agreement (offer and acceptance), a valid contract requires a “meeting of the minds,” which means that the parties mutually assent to all material facts.[5] Finally, mutuality of obligation requires that both parties to an agreement be bound or neither is bound.[6]

To be enforceable, a settlement must be placed on the record or be in writing, signed by the parties or their attorneys.[7] Absent proof of fraud, duress, or mutual mistake, courts are bound by property settlements reached by the parties.[8] The court will not determine whether a settlement agreement is fair; rather, the court simply considers whether it was freely, voluntarily, and understandably made.[9]

This is in part because courts do not examine the adequacy of consideration.[10] Any consideration, however slight, is legally sufficient to support a promise, unless it “shocks the conscience,” which is a very high, rarely used defense. Even “‘[a] cent or a pepper corn, in legal estimation, would constitute a valuable consideration.’”[11]

            Family courts generally approve negotiated property settlement agreements, even when those are not equitable.[12]  The family court is bound by property settlements reached through negotiation absent fraud, duress, or mutual mistake.[13] In Lentz, for example, the court stated, “we will not rewrite or abrogate an unambiguous agreement negotiated and signed by consenting adults by imposing a ‘reasonable’ or ‘equitable’ inquiry on the enforceability of such agreements.”[14] Rather, in reviewing a property settlement agreement, the family court must consider whether the agreement was entered into and signed freely, voluntarily, and understandingly, not whether the settlement is equitable.[15]

[1]               Detroit Trust Co v Sruggles, 289 Mich 595; 286 NW 844 (1939).

[2]               In re Meredith’s Estate, 275 Mich 278; 266 NW 351 (1936).

[3]               Id.

[4]               Id

[5]               Id.

[6]               Reed v Citizens Ins Co, 198 Mich App 443, 448, 499 NW2d 22 (1993), overruled on other grounds, Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 697 NW2d 895 (2005).

[7]               Id.

[8]               Id.

[9]               Balabuch v Balabuch, 199 Mich App 661, 502 NW2d 381 (1993).

[10]             GMC v Department of Treasury, 466 Mich 231, 644 NW2d 734 (2002).

[11]             Id.

[12]             Buzynski v Buzynski, 369 Mich 129; 119 NW2d 591 (1963).

[13]             Lentz v Lentz, 271 Mich App 465; 721 Nw2e861 (2006).

[14]             Id.

[15]             Id.