Is there an advantage to filing for divorce first? While no lawyer can definitively determine when a marriage is over, if you suspect that your spouse is contemplating divorce or that it's an inevitable course of action, there are strategic benefits to being the first to file. Filing as the Plaintiff, or the party initiating the divorce, provides you with the opportunity to seek "ex-parte" orders from the Judge without notifying the Defendant, your spouse. These "ex-parte" orders, if granted by the Judge, become effective when the case begins and can influence key aspects such as the use of the marital home, child custody arrangements, access to financial assets, and other crucial matters.

The strategic use of an "ex-parte" order can help prevent a potentially adversarial spouse from draining financial accounts, accumulating debt, or relocating children from their established residence. By taking the proactive step of filing with the court first, you can ensure that these orders are in place to safeguard your interests. This proactive approach also reduces the risk of being served with unexpected and binding orders at the outset of your divorce proceedings.

Ultimately, while every divorce case is unique, filing for divorce first can be a prudent move to protect your rights and interests during this challenging process. It allows you to take control of the initial legal proceedings and establish a framework that aligns with your objectives, especially when there are concerns about the other party's intentions and actions.

No fault divorce means that it only takes one party to dissolve a marriage. There is no way to oppose or object to a divorce or preserve a marriage if you or your spouse wants a divorce. It will eventually happen. However, fault is relevant to the terms of a divorce judgment on important issues such as child custody, property division, and alimony. Fault typically includes such behavior as spousal abuse or infidelity. It is a common misperception that no-fault divorce makes all misconduct irrelevant. This is NOT TRUE!

Quite often, one or both spouses want to separate immediately upon the filing of a divorce. The law does not provide an automatic right to move out or kick your spouse out of the marital residence. Moving out of the marital residence may make you vulnerable to potential situations that need to be considered beforehand. However, domestic violence, threats, harassment, and abuse can be reasons to move out or to have your spouse removed from the marital home.

Usually, the court requires the parties to pay all marital expenses associated with the home in proportion to their respective income.

Therefore, if you move out and lease another residence, your budget may not accommodate the expenses of both households. The courts are prone to keep the children at the marital residence, especially if they are enrolled in school. Leaving the residence can harm your chances at temporary or permanent custody, and require you to make child support payments. These concerns would not arise if you stayed in the marital residence.

Legal custody is the ability to make important life decisions regarding health care, education and the general welfare of the child. Joint legal custody gives both parents the right to make these decisions while sole legal custody gives one parent the decision-making responsibility. Physical custody refers to who the child lives with. The court may grant joint physical custody where the child lives with each parent some of the time, or sole physical custody where the child lives with only one parent.

Moving a child out of State or more than one hundred miles from their residence requires entry of a domicile order.  Under the law, numerous different factors must be evaluated by the court when deciding a motion to change domicile.  If your child has been removed from the State of Michigan without a domicile order, it is important that you file objections immediately because the Michigan Child Custody Jurisdiction Act states that Michigan loses jurisdiction after six months. If the child spends equal or expanded time with both parents the proof level to remove the child is higher. If moving the child out of State will destroy an established environment, the court will require compelling proof as to why this move is in the child’s best interest. You do not have to agree to your opponent’s request to remove your child from the State. You have the right to a hearing. Call David Dart to discuss your domicile rights.

Sometimes it is in the child’s best interest to relocate with a parent outside of the current custodial location. If you need to relocate outside of Michigan do not delay. Life often moves quickly and changes can occur in relationships and employment which require immediate action. You should hire an attorney as soon as possible.

A domicile change requires very specific criteria that takes into account the specific facts and circumstances of your situation. David Dart is familiar with these criteria, and he can evaluate your case to point out the best way these factors apply to your scenario. If you need to move out of state, or if your opponent is planning to move out of state against the child’s best interests, call David Dart immediately

Based on recent changes to the Michigan Child Support Guidelines, child support in Michigan is determined by a complex formula based in large part on the number of overnights that each party receives on an annual basis. A parent receiving generous, non-overnight parenting time will pay more support than a parent receiving numerous overnights on an annual basis. Parties with equal income levels and equal annual overnights usually pay no child support. Even if one parent earns an income greater than the other, equal annual overnights often results in substantially lower child support payment requirements.  This new formulation finally recognizes that parents who provide substantial care for their children deserve a lower child support obligation. However, this formulation also encourages less involved parents to insist on additional overnights in order to gain a reduction or elimination of support obligations regardless of the child’s best interest.

Michigan law on marital property is confusing with many categorizations, exceptions and specific criteria. Property distribution in a divorce judgment is non-modifiable. This means that unlike child support or permanent alimony, a property settlement cannot be changed if your financial situation improves or deteriorates after entry of a judgment. You get one chance, and one chance only to enter into a property settlement that is in your best interest. Some assets are considered marital and subject to division in a divorce. Some assets are considered separate property and not subject to division in a divorce. It is very important to have clear goals and objectives in constructing a property settlement. For example, you may wish to maintain real estate such as the family home. On the other hand you might need to receive fair compensation for your interest in this real estate in order to purchase another residence after judgment enters. Maybe you would like to obtain your interest in a business started or maintained during your marriage. Conversely, your spouse might wish to exclude you from such a business after the judgment is entered. In either scenario, it is important to have full evaluations and appraisals so that your interest is protected.

Alimony is often a dirty word in many divorce conversations. In the right case it can be a useful tool in resolving a divorce on terms that are favorable to all sides. Alimony awards take into account many factors including the length of the marriage and the earnings of the respective parties. Generally speaking, a primary breadwinner in a long-term marriage has exposure to more alimony liability than an equal earner in a shorter marriage.

Unless the parties expressly agree, alimony is always modifiable in the future. Parties can agree to a non-modifiable award which may be sometimes paid out in a lump-sum. A payer of non-modifiable alimony has to make the same payments even if their income increases or decreases. A recipient of non-modifiable alimony does not have to worry about decreases in the payer’s income, but they will not receive any increases if the payer’s income rises. A recipient of modifiable alimony can ask for increases if their situation deteriorates, such as unforeseen health problems or loss of income. These options are not available to recipients of non-modifiable alimony.

For alimony payments required under a judgment that is executed after December 31, 2018, the new tax law eliminates the tax deduction for alimony payments and recipients no longer have to include alimony in their taxable income. For parties who must pay alimony, this change can be costly because the tax savings from being able to deduct alimony payments could have been substantial.