“My Friend Said…” Common Myths about Divorce in Michigan
We’ve all heard it.
Well-meaning friends and family are often quick to offer unsolicited advice, particularly when it comes to divorce, parenting and personal relationships. Even if you haven’t heard them first-hand, rumors about custody and divorce are everywhere – at work, on social media, and even in the news.
But when your family is going through a tough time, you cannot simply rely on “things your friend said” to successfully navigate the legal process and come out unscathed. We hear these things day in and day out at our Oakland County divorce law firm and have decided to dispel the myths!
Here’s what you need to know at a glance:
My friend said, “You have to get divorced in the state where you were married.”
This is not true. The place or jurisdiction where you can get a divorce is typically determined by your current residence. To get a divorce in Michigan, you must be a resident of the State of Michigan for at least 180 days and a resident of your County for at least 10 days immediately prior to filing for divorce.
For example, if you live in Macomb County, your divorce will take place in Macomb County. If you move from Macomb County to Oakland, for example, your case could be filed in Oakland after 10 days.
If you live in Michigan and your spouse lives in another state, you can still file in Michigan so long as you file first and the above residency requirements are met.
My friend said, “You will get a better settlement if you file first.”
This is not true, although filing first does have its advantages. The primary advantage of filing first is you can sometimes get the Judge to grant emergency or “ex parte” relief without first notifying your spouse.
Common examples include preserving the marital assets (neither you nor your spouse may go on a spending spree while the divorce is pending) and maintaining the status quo (the bills must continue to get paid in the usual manner until further notice).
If you and your spouse are already separated, then another advantage of filing first is establishing jurisdiction in your county/state rather than theirs. This makes going to court more convenient for you and uses your state’s laws instead of theirs.
My friend said, “You will get everything because he had an affair.”
This is not true. In Michigan, infidelity is not a consideration when distributing marital property. However, bad behavior in the form of economic misconduct such as hiding or destroying marital assets is absolutely considered and could be disastrous for the offending party – just another reason to have a good family law attorney on your side!
Many people also believe that infidelity affects one’s parenting rights. But this is simply not the case unless it affects their ability to parent, which is rare.
My friend said, “Be careful or you’ll get accused of abandonment.”
This is not true. Abandonment is one of those pesky rumors we can’t seem to get rid of. Simply stated, you will NOT lose your rights to your children or to your home if you move out prior to finalizing the divorce.
We do caution you, however, to create a plan with your attorney prior to moving out. Setting realistic expectations for parenting time, marital finances, and the like, provides the whole family with a guide for how to proceed in the upcoming months and paves the way for a smoother transition.
In Macomb and Oakland counties, we frequently file temporary orders during a case to spell out temporary agreements of the parties during the pendency of the divorce.
My friend said, “Michigan law is really unfair. Women always get custody.”
This is not supposed to be true, but subconscious biases creep into all areas of society – including family court. We have observed this particular bias towards mothers especially when the children are young and/or nursing.
Luckily, a good family law attorney can make all the difference. Our attorneys are successful because we do an in-depth analysis of all custody and parenting time factors to clearly show that the best interests of the child means substantial time with both parents.
We are also skilled at presenting the strongest case possible for sole custody when appropriate (e.g., cases of abuse or neglect).
My friend said, “Children get to pick who they live with.”
This is somewhat true, depending on the age of the child and the circumstances of the case. A child’s preference, if they are old enough to have one, serves as one of many factors for the court’s consideration in determining custody and parenting time.
Other factors include, but are not limited to, whether the child naturally looks to that parent for love and guidance, the physical environment of the home, and the “permanency” or stability of the parent-child relationship.
While there is no magical age when children are suddenly mature enough to express such an opinion, we have found that courts, particularly in Oakland County and Macomb County, tend to consider the child’s preferences more seriously around high school age (14+).
My friend said, “Joint custody means you have your kids half the time.”
This is not true. There are two types of custody in Michigan: legal and physical. Joint legal custody means the parents make legal decisions together regarding the child’s wellbeing. Examples include medical care, formal education, and religious training (if any).
Joint physical custody means both parents have the right to physically spend time with their children (i.e., parenting time). However, this does not automatically mean 50/50. If the parties cannot agree to an even split, then parenting time will depend on multiple factors. Examples include the schedules of the parties, the ability of the parties to travel back and forth, the child’s extracurricular activities, and more.
We always recommend taking a realistic approach to your parenting time schedule that sets the child up for success in both households.
My friend said, “If you split custody 50/50, you won’t have to pay child support.”
This is not true in most cases, unless both parents make about the same amount of money. This is because the biggest factors under the Michigan Child Support Formula are: 1) the salaries of the parties; and 2) the overnights or parenting time with the children.
If one parent makes way more money than the other, then child support will likely result even if the parties have 50/50 parenting time.
Furthermore, children have the right to financial support under Michigan law even if the parties agree not to pay it. But there are exceptions to every rule, which is why it’s important to have an attorney on your side before finalizing parenting time and child support.
My friend said, “Visitation can be denied if you don’t pay child support.”
This is not true, and we strongly recommend you reach out to us if your visitation is being denied in violation of a court order.
Children have the right to love and affection from both parents and denying that right for financial reasons is not only wrong but unjustifiably damages the parent-child relationship.
Sometimes parents simply do not know there are other (legal) ways to collect child support. If this describes you or someone you know, then the first step is contacting Friend of the Court for more information.
My friend said, “You can avoid paying child support if you ‘do it right.”
Again, this is not true as a general rule. Courts must order support in the amount determined by the Michigan Child Support Formula unless the court finds that application of the formula would be “unjust or inappropriate.”
Such determinations are made on a case-by-case basis and usually fall into one of the deviation factors or permissible exceptions. Divorce courts in Oakland County and Macomb County require the lawyers to place the specifics about the case on the record before it will allow non-payment of support.
My friend said, “You’ll never get alimony because you’re a man.”
This is not true. Alimony or “spousal support”, as it is called in Michigan, is based on many factors, but sex is NOT one of them. Furthermore, spousal support is not always appropriate in every case – even for women.
The general considerations for spousal support in Michigan are a long-term marriage, typically more than 10 years, and a substantial disparity in income between the parties. Other considerations are the age, education, and health of the parties, which help to determine the permanency of support (i.e., transitional vs. permanent).
Permanent or lifetime support tends to be the exception rather than the rule. And even when lifetime support is awarded, it often ends on retirement when the parties begin sharing pension benefits.
Transitional or temporary support is far more common because it gives the recipient a period of time to establish him or herself in the job market once again through education and training.
Always seek the advice of a top family law attorney before waiving your right to spousal support because too often once you give it up, it’s gone forever.
My friend said, “The house goes to whoever paid for it.”
This is not true. The house is typically considered “marital property” if it was purchased after marriage or with the intent of making it the martial home.
As such, the equity or value in the marital home is subject to division between the parties, and the spouse who keeps the home usually buys out the other spouse’s interest in some way.
There are many considerations that go into who gets the marital home. In our experience, the primary factor is who can afford to keep it/buy out the other person’s interest. If the parties cannot agree, a court will likely order the house to be sold and the profits divided accordingly.
Our divorce lawyers have experience designing creative solutions at times to help our clients keep their homes.
My friend said, “You don’t get to keep your wedding ring.”
This is not true. A wedding ring is considered a gift in contemplation of marriage. If the marriage happened, that gift is yours to keep. If the marriage didn’t happen (for whatever reason), the gift must be returned.
Couples can get around this rule if they sign a written agreement to the contrary, typically in the form of a prenuptial agreement. Prenuptial agreements are generally a good idea for anyone going into a marriage with a lot of assets.
My friend said, “Your ex will have to pay for your lawyer in a divorce.”
This is not necessarily true, and you should definitely not count on it when hiring an attorney. Every case is different, however, so be sure to ask about it in the initial consultation with your potential attorney.
My friend said, “You don’t need a lawyer if you’re smart enough.”
This is not true. In fact, even lawyers hire other lawyers to represent them in divorce because they know the importance of getting it right. Don’t leave the future of your family up to chance. A good family law attorney makes all the difference!
