Articles Posted in Family Law/Divorce FAQs

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.

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?

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.

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.

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.

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.

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.

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.

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.

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?