Family Law/Divorce FAQs - Serafini, Michalowski, Derkacz & Associates, P.C.

Post-Divorce Checklist

Serafini, Michalowski, Derkacz & Associates — Wed, 28 Feb 2018 05:00:00 GMT

Once your divorce is final with the Court, there are several things you should do to wrap up any lose ends. Below is a checklist of some post-divorce issues you may encounter:

1.) Look after your credit. Cancel joint credit cards, and ensure that you are aware of all of your old and new obligations.

2.) Update your estate plan. Ensure that you have removed your ex-spouse from your Will, Trust, and Powers of Attorney – both as a fiduciary and as a beneficiary.

3.) Change beneficiary designations. Update insurance policies, retirement accounts, bank accounts, etc. to reflect a new beneficiary of your choice.

4.) Split retirement plans according to the terms of your divorce settlement agreement. Most of the specifics should be handled through a QDRO, but ensure that you do this as soon as possible.

5.) Ensure that you know how to receive your spousal and child support/or that your employer has the required orders to fulfill your support obligations.

6.) Sell or refinance the marital home.

7.) If you no longer have health insurance, look into health insurance options and ensure that you are covered.

8.) Create a budget as a single individual. Your household income and expenses will likely be completely different than they were when you were married; thus, you will need to make a new budget to ensure that you can fulfill all of your monthly obligations.

Hopefully, after your divorce, you will be able to move on and adjust to your new life rather seamlessly. However, if your ex-spouse is not fulfilling their obligations under the judgment, contact the attorneys at SMDA, P.C. to discuss enforcing your judgment.

Does Moving Out of the Marital Home Mean You Are Abandoning the Home?

Serafini, Michalowski, Derkacz & Associates — Fri, 22 Dec 2017 05:00:00 GMT

In short, the answer to this often answered question is no. When a relationship gets to the point of divorce, there are many reasons one of the parties considers moving out of the marital home. Certainly, if you decide to file for divorce or your spouse files for divorce (and serves you), you have every right to live in the marital home throughout the divorce process (2 month minimum without children and 6 month minimum with children-topic for another blog). However, if the living situation is simply unbearable, you may consider moving out since you’re going to be living separately anyway in a matter of months. Of course, if you plan to try and keep the marital home following the divorce, it doesn’t make sense for you to move out.

Examples of unbearable situations may include abuse (physical, verbal, etc.), substance abuse or other obnoxious or harmful behavior. There are many factors to consider before you move out (i.e. cost, ensure your personal belongings do not disappear, etc.) but if for your own mental well-being, you believe moving out is necessary, you will not be punished in the divorce process for leaving (or abandoning as many people incorrectly put it) the marital home. The marital home will still be an asset/liability to be equitably divided during the divorce process whether you’ve moved out or not.

Keep in mind, if you move out of the marital home, the parties must still maintain the status quo. That is, all of the household bills must continue to be paid in the manner that they always have been paid. So, by moving out, you now have an additional set of expenses so you should not take this decision lightly inasmuch as your right to remain in the marital home can provide you some necessary transition time to plan for your new financial situation. In addition, if you have children and you move out of the marital home during the divorce (or in anticipation of divorce), there will need to be an interim (or temporary) custody, parenting time and child support order to ensure that each parent maintains a healthy relationship with the children.

I do highly recommend you consult with a lawyer before you make the decision to move out of the marital home either prior to or during the divorce process. Please contact me for a free consultation to discuss this and any other important issue you need to consider.

Grounds for Annulment

Serafini, Michalowski, Derkacz & Associates — Fri, 22 Dec 2017 05:00:00 GMT

The grounds for annulment in Michigan are as follows:

1.) Prior spouse of a party: a marriage is void if it is performed while one of the parties is currently married to someone else.
2.) Relationships of consanguinity and affinity: marriages between parties related within certain degrees of consanguinity or affinity are prohibited (i.e. mother and son, brother and sister, etc.)
3.) Lack of consent: marriage is a civil contract between and man and a woman only. Like any contract, consent to the contract is essential.
4.) Nonage: A person must be at least 18 years old to be legally capable of entering into a marriage. A 16-year-old can be married with the written consent of his/her parents.
5.) Mental Incompetence: a marriage is void, if a party was not capable of contracting at the time of the solemnization.
6.) Fraud and Duress: a party must consent freely. If the party was threatened, or forced to enter into a marriage, the marriage is void.
7.) Sterility or Impotency: a marriage in which one of the parties has a physical incapacity to have children is valid until the wronged party seeks a judicial decree to annul it (not to exceed two years from the date of the marriage).
8.) Other grounds in which the court deems just.

If you are considering an annulment, contact the family law attorneys at Serafini, Michalowski, Derkacz & Associates, to discuss whether or not you should seek an annulment or divorce.

You’ve decided to file for divorce – now what?

Serafini, Michalowski, Derkacz & Associates — Fri, 22 Dec 2017 05:00:00 GMT

Divorce creates profound stress and emotion, and often precipitates other changes in your life. The outcome of your case can affect you and your family for many years to come. For these reasons, it is essential to find attorneys that adequately represent your interests and make the divorce process as smooth as possible. Unlike other firms that generate frivolous charges, and drag out the court process for their own financial benefit, Serafini, Michalowski, Derkacz & Associates focuses on the most cost-effective approach, so that this difficult time does not cause unnecessary financial stress.

We offer a free consultation to provide you with straightforward information, so that you have peace of mind during this difficult time. We make sure you are knowledgeable about the entire divorce process, as well as all of your potential options. Moreover, we continually keep you updated throughout your case.

To initiate the divorce proceedings, we will file a Complaint for Divorce in the county in which you reside.

If you and your spouse agree on the terms of your divorce (i.e. who is to receive which items, child custody and support, and spousal support), we will draft a Consent Judgment of Divorce. For cases without children, a case can be finalized after sixty (60) days. For cases with children, there is a statutory waiting period of six (6) months. After sixty (60) days, this waiting period can be waived on motion of the court, if there is a compelling reason to waive the waiting period.

If you and your spouse do not agree on the terms of your divorce, the case will proceed to an initial court hearing. At that time, the Judge will set dates to exchange information, and a date to meet with a mediator. Furthermore, if children are involved, the Judge will send the case to Friend of the Court, to determine custody, child support, and parenting time.

If the parties do not settle after exchanging information or attending mediation, the case will proceed to Trial. If the case proceeds to Trial, the Judge will determine the terms of the Judgment of Divorce, and your divorce will be finalized.

To a large extent, the amount of time it takes to finalize your case, and the associated expense involved, depends on the cooperation between you and your spouse.

Annulment versus Divorce

Serafini, Michalowski, Derkacz & Associates — Tue, 31 Oct 2017 04:00:00 GMT

An annulment proceeding is instituted to obtain a ruling that a valid marriage never took place, because of a defect existing when the parties were married. A divorce proceeding is used to terminate a valid marriage, for reasons that occurred after the marriage took place. In Michigan, the statutory grounds for divorce is that there has been a breakdown in the marital relationship, to the extent that the objects of matrimony have been destroyed and there is no reasonable likelihood that the marriage can be preserved.

What questions to ask during your divorce consultation?

Serafini, Michalowski, Derkacz & Associates — Wed, 18 Oct 2017 04:00:00 GMT

When your relationship has reached the point where divorce is imminent, you may realize that you need a divorce consultation, but may not realize which questions to ask or where to begin. Below is a list of questions that may help you more fully understand the divorce process and what your rights are:

1.) What is the time frame that the case would be resolved? (this will depend on how disputed your case is)

2.) What is the process?

3.) What am I entitled to? (be prepared to discuss how long you have been married, your respective incomes, and your assets)

4.) What should I do before I file?

5.) How can I protect myself and my assets?

6.) Would spousal support be a factor in my case?

To schedule a free consultation, contact our office at (586) 264-3756.

Can you afford the marital home?

Serafini, Michalowski, Derkacz & Associates — Fri, 29 Sep 2017 04:00:00 GMT

When divorcing your spouse, you need to understand the total amount of assets, including real estate, investment accounts, retirement accounts, etc. You also need to understand whether you are likely to receive spousal support. All of these factors will help you determine how your are going to support yourself after all of the assets are divided, and you are living on your own.

Many individuals that have been relying on their spouse, want to keep the marital property, despite the fact that their income is minimal. In order to determine whether or not you can remain in the marital home, you need to first consider the above, and second, speak with a loan officer, and determine if you would be eligible to refinance the home.

Although you may be very attached to the Property, you need to ensure that you have the financial ability to remain in the home. If not, it is likely your best option to sell the home, split the equity with your spouse, and find a new property where you can start fresh.

For more information regarding real property and divorce, contact our office at (586) 264-3756, to schedule your free consultation.

Updating your estate plan after a divorce

Serafini, Michalowski, Derkacz & Associates — Fri, 15 Sep 2017 04:00:00 GMT

After you’ve negotiated the terms of your divorce judgment, and you are officially divorced, you will still have a lot of loose ends to tie up. One often overlooked issue that needs to be addressed, is updating your estate plan.

Generally, an estate plan will include a trust or will, a durable power of attorney, a medical power of attorney, and a deed that avoids probate. The documents that consist of your estate plan, will vary based upon your needs. However, if you have minor children, most times your estate plan will include a trust. A trust allows for more in depth planning, and staggered distributions, so that your child does not receive a windfall at the age of eighteen (18). A trust also avoids the hassles of Probate.

Most likely, if you already had an estate plan while you were married, your spouse is in the first fiduciary position for each document. It is important to change the documents, to replace your spouse with another individual.

While updating your estate plan, you will also want to update your beneficiary designations on all of your accounts to remove your spouse.

For more information on creating an estate plan, contact our office at (586) 264-3756 or email kristenb@smdalaw.com.

What is the difference between a legal separation and a divorce?

Serafini, Michalowski, Derkacz & Associates — Thu, 31 Aug 2017 04:00:00 GMT

A legal separation and a divorce are two distinct court cases and two distinct marital statuses. Legal separation does result in a final division of marital assets but the parties are still married and therefore cannot re-marry. If you have gone through a legal separation, but you later decide you want to divorce, you can petition the court to convert your judgment of separate maintenance to a divorce judgment.

The majority of couples that decide to file for a legal separation, versus a divorce, do so for religious or medical reasons. One advantage of a legal separation is that a spouse may be able to maintain health insurance through the other spouse’s employer. Be sure to check with the employer, human resources, or the health care company directly to ensure benefits will not be suspended in the event of legal separation. One of the other advantages of a separation is that you are not considered divorced for religious purposes.

However, some disadvantages of a legal separation are the costs. It is rare for people who are legally separated to reconcile though it does happen. So, if you’re in the majority, you may want to consider saving yourself some money (and aggravation) and simply file for divorce rather than separation because the likelihood of divorce is so substantial. Another disadvantage of a separation, is that you cannot re-marry, as you are still considered legally married. Additionally, when an action for separate maintenance is filed, the defendant has the option of counter-claiming for divorce. If the defendant counterclaims for divorce, the case will be converted to a divorce case. Thus, if you and your spouse do not feel the same way about a legal separation, you are better off filing for a divorce.

Although the decision to separate versus divorce is a very personal one, our attorneys would be happy to assist you with any questions that you may have. You may contact our office at (586) 264-3756.

How to prepare for a divorce.

Serafini, Michalowski, Derkacz & Associates — Mon, 14 Aug 2017 04:00:00 GMT

Many people contact our office and ask, “how do I prepare for a divorce?” If you are contemplating filing for divorce, there are a few things you can do to put yourself in the most favorable position.

1.) Prepare a financial statement. You should know the extent of the marital assets. Not only should you create a list of your individual assets, but also your spouses’s individual assets, and all joint assets. You should also know the approximate balances in each account. Start keeping track of the account statements, so that you know if your spouse has made any significant transfers. In addition, you should know all of the debt in your name, your spouses’s name, and in both of your names. If any assets have a lien, know the amount of the lien and who the lienholder is.

2.) Create a budget. You should know the current incomes and expenses of your household. You will want to figure out if you would be able to keep your home, or the amount of other comparable homes in the area, if you plan on moving out of the marital home. If you have concerns about your ability to keep your home, check out our spousal support blog, to see if you would be entitled to support.

3.) If you have children, you will want to start thinking about a custody and parenting time arrangement, that is practical in the circumstances. Look at our blog regarding best interest factors, and see what your potential strengths and weaknesses may be in a custody battle.

For more information on how to prepare for a divorce, contact our office for a free consultation at (586) 264-3756.

How are retirement accounts divided in divorce?

Serafini, Michalowski, Derkacz & Associates — Mon, 19 Dec 2016 05:00:00 GMT

For many couples, the bulk of their assets are located in retirement accounts. The division of these assets, and the tax consequences associated with such, is a significant concern. Generally, you are entitled to half of the marital portion of your spouse’s retirement accounts and vice versa.

The actual division of the accounts depends on the type of account. For example, qualified plans require a QDRO (Qualified Domestic Relations Order) to properly split the account and avoid tax consequences. Additionally, an IRA division needs to be treated as a transfer “incident to divorce” and should be completed within one year of the divorce agreement, in order to avoid the early withdrawal penalty.

Another important, and often overlooked, change that needs to be made, is on your beneficiary designations. You will want to make sure that your former spouse is no longer listed as a beneficiary on any of your retirement accounts, or any other asset that designates a beneficiary. Regardless of your divorce judgment or Will, a company will generally follow the beneficiary designation. Although many individuals assume this is accomplished through the Judgment of Divorce, it is not.

For more information regarding the division of retirement assets, contact the attorneys at Serafini, Michalowski, Derkacz, & Associates, P.C. (586) 264-3756.

Are Prenuptial Agreements Enforceable?

Serafini, Michalowski, Derkacz & Associates — Mon, 19 Sep 2016 04:00:00 GMT

n Rinvelt v. Rinvelt, 190 Mich App 372, 380; 475 NW2d 478, 482 (1991), the Court of Appeals held that prenuptial agreements governing the division of property in the event of divorce are enforceable if the following criteria is met:

1.) Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?

2.) Was the agreement unconscionable when executed?

3.) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

For more information regarding prenuptial agreements, contact the attorneys at SMDA, P.C. for a free consultation

Filing for Divorce FAQ’s

Serafini, Michalowski, Derkacz & Associates — Mon, 27 Jun 2016 04:00:00 GMT

Answers to frequently asked questions regarding filing for divorce:

1.) Do I need an attorney to file for divorce?

Answer: No. However, it is in your best interest to consult with an attorney when filing for divorce. Often times we hear from clients who have initiated the process themselves, and their case ends up getting dismissed. If you want to ensure that all of the documents are properly filed with the court, and that your divorce is wrapped up as quickly and seamlessly as possible, it is best to hire an attorney.

2.) What are the legal grounds to file for divorce?
Answer: Michigan is a no-fault state, which means that you can file for divorce regardless of the fault of either party. The statutory grounds for divorce in Michigan is that there is no chance of reconciliation. In order for a Judge to grant you a divorce, he or she will have you testify that if the divorce was not granted, there is no reasonable likelihood that you and your spouse would reconcile. Other factors that pertain to your reason for filing for divorce (such as infidelity, abuse, etc.) will be relevant for spousal support and property distribution.

3.) How much does it cost to file for divorce?

Answer: The court charges a filing fee when filing a case for divorce. The filing fees differ by county; however, Oakland County and Wayne County charge $175.00 for a divorce case without minor children, and $255.00 for a divorce case with minor children. Macomb County charges $175.00 for all divorce cases, regardless of whether or not there are minor children.

Filing for Divorce in Oakland County?

Serafini, Michalowski, Derkacz & Associates — Fri, 29 Jan 2016 05:00:00 GMT

If you are a party to a divorce case in Oakland County, and you have minor children, you will receive notice of your Early Intervention Conference (EIC).

The EIC is the first hearing held on divorce cases involving minor children. The EIC is held at the Friend of the Court 56 days after the filing of the Complaint. The case is heard by the Referee assigned to the case. Both parties and attorneys must attend.

The EIC provides the Court with a summary of the case and status. If needed, your Referee may refer the matter of child support, custody, and/or parenting time for investigation and recommendation.

Immediately following the EIC, the parties are required to attend the SMILE (Start Making It Livable for Everyone) program. The program assists parents to better understand how conflict existing between them affects their children, how to communicate on a positive level, and how to be flexible and compromise as co-parents in making decisions about their children.

If you have any questions regarding your EIC, contact the family law attorneys at SMDA.
(586) 264-3756.

Marriage Equality in Michigan

Serafini, Michalowski, Derkacz & Associates — Fri, 01 Jan 2016 05:00:00 GMT

On June 26, 2015, the United States Supreme Court held that same sex couples have a fundamental right to marry as guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Obergefell v. Hodges, 135 S. Ct. 2584; 192 L. Ed. 2d 609 (2015).

So, what does this mean for same-sex couples, who would like to divorce? Due to the fact that same-sex marriage has only been an option since June 2015, same sex divorces will differ from heterosexual divorces. One of the factors that is considered in terms of spousal support and property division, is the length of the marriage. Thus, a same-sex couple that has had a civil union or has been a couple for many years, will still have a fairly short length of marriage, which in turn, results in less support.

Because the issue of same-sex divorces is just beginning, the court may be persuaded to take a closer look at these issues, and consider arguments regarding the length of the relationship, rather than the length of the marriage. If you are considering your options for same-sex divorce, please contact the attorneys of Serafini, Michalowski, Derkacz & Associates, P.C. at (586) 264-3756.

When will a court award attorney’s fees?

Serafini, Michalowski, Derkacz & Associates — Fri, 04 Dec 2015 05:00:00 GMT

Pursuant to MCR 3.206(C)(2), there are two independent bases for awarding attorney fees and expenses.
1.) The first is based upon a party’s need to prosecute or defend a claim and the other party has the ability to pay or contribute, and 2.) The second is based on a party’s behavior without reference to need or the ability to pay.

The court will consider the income of both parties, as well as, the overall distribution of property, and whether the property settlement adequately provides for the spouse in need.

If you have questions regarding the award of attorney’s fees, please contact the attorneys at Serafini, Michalowski, Derkacz & Associates at (586) 264-3756.

Things to Consider Before Filing For Divorce

Serafini, Michalowski, Derkacz & Associates — Fri, 23 Jan 2015 05:00:00 GMT

1.) Are you sure? Make sure you have carefully thought it out and that divorce is the right path for you.
2.) Do your research. Ask your attorney about the laws, time requirements, and costs associated with a divorce. The more you understand the process and the costs associated with a divorce, the better you will feel throughout the process.
3.) Set your goals. Have an idea of what you are looking to accomplish both personally and financially. The process is a give and take, so be realistic about your expectations.

4.) Keeping the home? Make a budget and list all of your expenses. Does it make sense to keep the house? Consider hiring a real estate agent and get your home appraised.
5.) Consider custody. What is your ideal custody scenario? Make sure you put your kids first; rather than thinking of yourself or punishing your spouse.
6.) Get organized. Have a clear understanding of what assets you own, and what the value of your assets are. Are these joint assets, or individual assets? Also, make sure you know all of your creditors, and how much you owe on each of your accounts.
7.) How’s your credit? Obtain a credit report and determine how to improve your credit score, or how the divorce will impact your score.
8.) Hire the right team. In addition to an attorney that will make sure you understand the divorce process, have realistic expectations, and fight for a fair settlement, also consider speaking with a therapist and financial advisor.
9.) Take time for you. This is one of the most stressful times in your life. Make sure you have a good support system and remove stress from your daily life as much as possible.

Advantages and Disadvantages of Annulment

Serafini, Michalowski, Derkacz & Associates — Fri, 16 Jan 2015 05:00:00 GMT

If you are contemplating whether an annulment is in your best interest, please carefully review the following advantages and disadvantages :
The following are advantages of an annulment proceeding:
• Starting a new marriage as if it were a first marriage may have a positive psychological impact.
• Any stigma of being divorced is avoided.
• Spousal support payments from a prior marriage that were terminated on remarriage may be reinstated if the second marriage is annulled.
• Pension, Social Security, or insurance benefits due from a prior marriage but discontinued at the time of this marriage may be reinstated.
• An annulment vitiates all interfamily ties as though they never existed.
• There are no lengthy residency requirements.
• There is no 60-day mandatory waiting period before a hearing.

The following are disadvantages of an annulment:
• Spousal support is hardly ever granted.
• The woman has no dower rights in her husband’s property.
• Annulment can be barred by estoppel, prior knowledge, condonation, or in pari delicto.
• The proof required for annulment might be more difficult to obtain than proof required in a no-fault divorce action.
• A spouse’s right to Social Security retirement and disability benefits is extinguished.

For more information on whether you should pursue an annulment, contact the family law attorneys at Serafini, Michalowski, Derkacz & Associates for a free consultation.

How to tell your children you are getting divorced.

Serafini, Michalowski, Derkacz & Associates — Thu, 02 Oct 2014 04:00:00 GMT

Getting divorced is a very upsetting time for you and your spouse. However, when you have children, the experience is even more emotional.

You should keep the children out of any arguments, and make the process as easy on them as possible. As frustrated as you are with your spouse, you should focus on the needs and concerns of your child; rather than the disputes between you and your spouse.

There are several things you can do to make the process easier on your children.

1. Consult a child or family therapist. Many children benefit from being able to share their feelings and concerns, without feeling like they are hurting either parent.

2. Before discussing the divorce with the children, make a game plan with your spouse, so that you appear to be on the same page. Also, anticipate questions that the child might have, and prepare a unified response.

3. Work together and discuss the children’s concerns with them as a family. Do not make accusations against your spouse, or have the conversation focus on the two of you. Make sure the conversation focuses on the children and their needs and concerns.

4. Focus on the positives – that the children have two people who love them so much that they both want special time with them.

5. Focus on how things at home are going to stay as similar as possible.

6. Tell the child that it is not their fault – that mommy and daddy are just their best selves in two different houses.

7. Do not place blame. Make it appear as a joint decision that is best for the family as a whole.

8.Anticipate that your child will have additional questions throughout the divorce process.

You may also find it helpful to obtain books from your local library or bookstore that explain the divorce process to children. Depending on the age of your child, you can either read the book with them, or let them pick out books to read on their own.

Throughout the entire process, you want to remind the children how loved they are, and do anything you can to reduce any anxiety they may have about the significant change taking place in their lives. Try to keep their lives as normal as possible, and be patient with them as they adapt to a new normal.

Spousal Support: should it be awarded in your case?

Serafini, Michalowski, Derkacz & Associates — Fri, 26 Sep 2014 04:00:00 GMT

Spousal support is generally a highly contested issue. There are some cases where spousal support is necessary and appropriate, and some cases where spousal support is not recommended.

Eleven factors are generally considered in determining whether spousal support should be awarded. We urge you to review the factors listed below, to determine the strengths and weaknesses of your case.

The factors are as follows:
1.) The Parties’ Past Relations and Conduct.
Considerations: Has either party been unfaithful? Is there a history of domestic violence?
2.) Length of Marriage Considerations: The longer the length of the marriage, the more likely that spousal support will be awarded.
3.) The Ability of the Parties to Work Considerations: Is either party unable to work?
4.) The Source and Amount of Property Awarded to the Parties Considerations: Can spousal support be offset by other items, such as, real property or valuable personal property assets?
5.) The Age of the Parties Considerations: If a party asking for spousal support is very young, if so, the judge may find that the party can obtain employment, and reduce the duration of spousal support.
6.) The Ability of the Parties to Pay Spousal Support Considerations: Is either party able to pay spousal support, or are they in a situation where they cannot afford their own expenses?
7.) The Present Situation of the Parties Considerations: Where are the parties living? Where are the parties working? What expenses are the parties responsible for?
8.) The Needs of the Parties Considerations: Does the party asking for spousal support need the support, or are they able to provide for their own expenses?
9.) The Health of the Parties Considerations: Does either party have health issues that would prevent current or future employment?
10.) The Prior Standard of Living of the Parties
Consideration: Are both parties used to a high standard of living, which should be maintained?
11.) General Principles of Equity Consideration: Based upon all of the circumstances, does it seem to be in the best interest of justice to award spousal support?