Dower Abolished in Michigan

At long last, the ancient legal concept of dower has been abolished in Michigan.

As a direct result, Michigan real estate transfers just became less complicated thanks to the efforts of Senator Rick Jones, the sponsor of Senate Bills 0558, 0559, and 0560. This bill package, just signed into law by Governor Snyder yesterday, eliminates dower rights in Michigan, bringing us into the modern era of property division and ending the legal debate about dower in the post-Obergefell era.

Dower is defined in Black’s Law Dictionary as:

A species of life-estate which a woman is, by law, entitled to claim on the death of her husband, in the lands and tenements of which he was seised in fee during the marriage, and which her issue, if any, might by possibility have inherited.

Clear as mud, right?

Most people encounter the archaic property right of dower when they are seeking to buy or sell real estate. If a man owns a parcel of property before his marriage, but marries while he owns that property, he has created a dower right to the property for his new wife. In order to transfer the property, he must obtain his wife’s signature giving-up her dower right to the property, even if the wife has no equitable interest in the property. This is why in Michigan, divorce judgments have always extinguished this property interest.

Dower rights are a right of a wife to her husband’s real estate. The male equivalent, known as curtesy, was eliminated in 1903, but it likewise provided husband with a right to his wife’s real estate. In a world where same-sex marriage is legal, the status of dower and curtesy rights becomes uncertain relative to gender.

Dower rights have changed throughout history, as have gender roles, but the general concept has been to provide support for a wife after the death of her husband. In the Middle-Ages, this was accomplished by giving the wife a sum of money on her wedding day that belonged to her as an individual, not her husband. By the time the Magna Carta was drafted in 1215, dower had been reduced to its modern form: a life estate in one-third of the lands owned by the husband.

Prior to this new law, Michigan’s dower rights provided a woman with a life estate in one-third of any real property owned by her husband during their marriage. A life estate is the right to a piece of real property until your death, including the right to any income generated from the property. Dower rights have not been a contested issue for some time, as the rights of a surviving spouse under the Estates and Protected Individuals Code far exceed the value of the dower right.

The same is true of divorce. Michigan is an equitable distribution state for marital property. Rather than simply being entitled to a life estate interest in a portion of the husband’s real property, a spouse is entitled to an equitable distribution of all marital property, including real estate, bank accounts, personal property, and retirement assets. There are limited times in which a dower right would be more valuable than an equitable distribution.

Specifically, in a case where a husband owns a great deal of real estate prior to the marriage, and acquires relatively few assets during the marriage. Under the laws of equitable distribution, that real estate is likely out of reach in divorce proceedings, although there are exceptions to the rule. Under the dower regime, a life estate in one-third of the real property would be more valuable than merely an equitable share of the few assets acquired during the marriage.

The elimination of dower rights eliminates a long-standing gender bias in Michigan law and finalizes the transition to the equitable distribution that characterizes modern divorce. It’s no longer a paternalistic system where the state provides for the protection of women, but instead a system that equitably divides the marital assets for the benefit of both spouses.

Oakland County Lawyers

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Will my case settle or will we have to go to trial?

The overwhelming majority of divorces settle prior to trial. In fact, the courtroom is often the least appropriate forum in which to publicly air the sensitive personal issues that are involved in any divorce. In rare cases, however, a judge is called upon to determine the issues that cannot be resolved through negotiation between the parties and their attorneys. In Michigan, divorce trials are conducted without a jury. A Family Court judge will decide the issues in your case if it goes to a trial.

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What role will the Friend of the Court have in my divorce?

The Friend of the Court (FOC) is usually only involved in divorces involving minor children or in paternity cases. Sometimes, however, even a divorce that does not involve children will proceed through the FOC. Family Court judges have the authority under the Michigan Court Rules to refer any matter to a Referee.

Each divorce or paternity case is assigned to a judge. In turn, each judge’s docket is divided among that judge’s referees. A referee is a lawyer appointed by the judge to consider the common issues of custody, support and parenting-time in each case and to make recommendations to the court for resolution of these issues. Following this initial determination, the parties can accept the referee’s recommendation or can reject them and have a hearing before the judge assigned to the case for a final determination.

In addition, each referee has a staff of family law professionals usually consisting of a family counselor and a child support specialist. Some county court budgets do not allow for full staffing of these positions and the referee will play a larger role.

You will meet your referee at the Early Intervention Conference. This is where the referee will discuss with you and your spouse what you believe the issues are in your case. Attorneys play a limited role at this conference and the goal is to communicate with the referee so that problem issues can be identified and addressed, at least temporarily.

Whenever possible, it is usually best to attempt to work things out with your spouse during a divorce. Obviously this is easier said than done; after all, you are involved in a divorce. Sometimes the prospect of a clean break coupled with a new start motivates parties to cooperate. The effect of cooperation between the parties during divorce is to minimize the involvement and interference of the FOC.

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Custody and Frequency of Parenting Time

My spouse is a real jerk and I want custody of our children. How can I be sure that I am awarded custody? And can I limit the frequency of my spouse’s parenting time?

Custody is determined on a case-by-case basis in Michigan. The court will award custody according to the “best interests” of the children and must take eleven statutory factors into account.

They are:

  • Love, affection and emotional ties of each parent to the children
  • Capacity of each parent to provide love affection and guidance to the children
  • Capacity of each parent to provide the children with food, clothing and medical care
  • Length of time the children have lived in a stable, satisfactory environment
  • Permanence, as a family unit, of the existing or proposed custodial home
  • The relative moral fitness of the respective parents
  • The relative physical and mental health of the parents
  • The home, school, and community record of the children
  • The reasonable preference of the children (the older the child, the more weight this factor will have with the court)
  • The willingness or ability of one parent to foster and encourage a close and continuing relationship between the children and the other parent
  • Domestic violence, whether directed against or witnessed by the children

In high-conflict divorces, custody is often disputed. A referral to a series of professional evaluators is often the procedure used to make this determination. Frequently, courts will order that psychological evaluations be conducted on all family members (and sometimes even significant others). These evaluations are often performed by private professionals at additional cost to the parties, or are sometimes performed by court-employed clinicians. If it is truly in the best interests of your children that your spouse not be awarded custody (or, likewise it is in the children’s best interests to minimize parenting time with your spouse), you will want to hire competent legal counsel in order to realize this objective.

Even if you are awarded custody, your spouse probably will be able to obtain reasonable parenting-time. In nearly every case, and with rare exception, the courts and their staff will encourage some modicum of parenting-time for the non-custodial parent. In Michigan, there is a statutory presumption that parenting time with both natural parents is in the best interests of the child. Court ordered parenting-time can be informal, where the parties themselves schedule and execute parenting-time transfers, or can be scheduled for each day up to the minute and can provide for supervised transfers, often at a police station. This depends on the actions and desires of the parents during the divorce.

If there are issues of domestic violence, abuse, neglect, or substance abuse, then supervised parenting-time may be necessary. This is usually designed to be a temporary measure where the non-custodial parent exercises parenting-time in the presence of an agreed upon or court-ordered third party. When the non-custodial parent demonstrates adequate parenting skills during the period of supervision, unsupervised parenting-time eventually will be ordered by the court.

Like the custody determination, a parenting-time determination is made by the court with consideration of a series of statutory factors. These factors are a similar abbreviated version of the child custody factors set forth above.

The court retains jurisdiction over your divorce case during the entire time your children are minors. Therefore, custody and parenting-time arrangements are frequently modified by the court when a significant change in circumstance occurs. Since the county-level family courts are literally swamped with post-divorce custody and parenting-time issues, it is advisable to hire a competent attorney to ensure that your matter receives prompt and complete attention from the court.

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Separate Legal Counsel?

My spouse and I have a simple marital estate and have agreed on the terms of our divorce. Do we really need to hire separate legal counsel?

It is always best to have independent legal counsel when preparing to file for divorce or at least prior to agreeing to the entry of a consent judgment of divorce. Once a property settlement is entered with the court, for example, it cannot be appealed and is rarely, if ever, modified by the court.

In some cases, however, where the terms of the divorce are agreed upon, one attorney is able to draft the judgment of divorce and have it entered with the court. Even in these cases, the attorney will represent only one of the two divorcing parties and the other person is essentially unrepresented. This most often occurs in divorces without children. If such an arrangement is consented to by both parties, there is an unquestionable significant savings in legal fees.

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Dating During Divorce

May I date during the divorce process? Also, what about the money I chose to spend on dating and/or a lover?

In modern times, it seems that the courts in Michigan are less concerned with your private life than they once were. There are, however, some warnings you must heed in the area of dating and sexual relations during your divorce. First, by openly dating, you are risking the infliction of emotional pain on your spouse and this may significantly impede the chances of settling your case.

If you have children, there are additional concerns. Most family counselors and/or therapists will advise that exposing your minor children to a “significant other” during the divorce will add needless confusion and anxiety to their already mounting concerns. Some judges, referees or Friend of the Court counselors will recommend that your new significant other not be present during overnight parenting time during the divorce. It is always best to complete your divorce and allow your children to adjust prior to openly dating.

Adultery is of greater concern. First, it remains a crime in Michigan (a felony), although prosecutors have long-refrained from prosecuting sex-related cases between consenting adults. However, an adulterous affair may have an impact on custody of your minor children, spousal support and the property settlement of your case. The moral fitness of the parties is one among many factors the court will take into account when determining custody and support. Again, while the courts in general are less concerned about your private life in modern times, if your adulterous sexual relations affects your minor children in any way, it may become an issue in your divorce. It is best to wait until your divorce is completed before resuming sexual relations.

Also, any money you spend on dating or on your lover may be deducted against you in the property settlement of your divorce decree.

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Counseling and Confidentiality

If I go to counseling, are my conversations with the counselor confidential?

Generally, your communications with a physician or therapist are protected by the doctor – patient privilege. In some cases, however, a party waives this privilege by consenting to disclosure of medical records or by placing his or her treatment into issue in the divorce case, making the records discoverable. Some difficult issues in this area arise when a client waives a doctor-patient privilege as to one treating physician but not as to others and the opponent attempts to seek disclosure of all treating professionals. Parties to a divorce will need legal counsel to determine the best approach to navigate in this area.

It is also common to have court-ordered psychiatric examinations of an entire family. These are usually in high-conflict situations and the evaluator’s report and recommendation are reviewed by the attorneys and the court.

There are also statutory exceptions to the confidential nature of your medical records. For example, a health care professional has a statutory obligation to disclose evidence of physical abuse to the proper authorities and this duty supersedes any confidentiality.

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Custody and Support

If I am awarded custody of my children, how much will my spouse have to pay in child support and when can I expect to begin receiving this support?

Child support is awarded on a temporary basis when the parties have separated and one of the parties has primary physical custody of the children. Support is usually not awarded when the parties are living in the same home.

Child support is determined by a statutory formula drafted by the Michigan Supreme Court. This formula takes the relative income of the parties into account to set the level of child support. A good attorney will always seek to verify the parties’ income when determining the amount of child support. Sometimes one of the legal questions presented in a divorce is the determination of income for a spouse that may be attempting to hide his or her income.

Our law firm can provide you with a preliminary child support estimate at your initial consultation. We have specialized software approved by the Family Law Section of the State Bar of Michigan that easily generates a child support report. This will be used to obtain a temporary order of support when your case is filed. It usually takes a few weeks for support payments to be processed through the Friend of the Court. Sometimes, the non-custodial party agrees to make temporary payments voluntarily and such payments can be instantaneous.

When child support is paid through the Friend of the Court, an income withholding order is entered by the court directing the non-custodial parent’s employer to automatically deduct a specified amount from each paycheck. This automatic deduction is then deposited into an account with the Friend of the Court and made available to the custodial parent.

Like custody and parenting-time issues, child support can be modified to reflect changes in the parties’ circumstances such as an increase or reduction in income or loss of a job.

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How much will my divorce cost?

It is impossible to predict the total cost of your divorce because it depends on several factors. The most important of these is the reasonableness of the parties and the respective attorneys. In a true “pro-confesso” divorce (meaning there are no disputed issues and the parties agree on every aspect of the divorce in the form of a consent judgment for divorce), our firm charges $850. Many cases that start-out as an uncontested divorce, however, turn into a disputed proceeding involving several trips to court and extensive negotiation between the attorneys to achieve full resolution. This is obviously more costly. At your initial interview, we will attempt to determine what issues are present in your case and assess their significance. From this assessment, we will be able to provide you with a projected range of attorney fees.

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How long will my divorce take?

A divorce is not official until a judgment of divorce is entered in the Court by the Judge. In Michigan, there are two statutory waiting-periods that must expire prior to the entry of a judgment for divorce. These time periods depend on whether the divorce involves minor children. If there are no minor children during the divorce and the wife is not pregnant, the parties can enter a judgment in 90-days after the complaint is filed. If minor children are involved, the judgment cannot be entered until 180-days. The legislative purpose of these wait periods is to provide an opportunity for the parties to reconcile. On occasion, a Judge may waive the 180-day wait period if there is a compelling reason to do so (usually involving the safety of the minor children). The 90-day period in cases without minor children cannot be waived.

Many divorce cases are not completed upon expiration of the statutory wait periods, even though the parties want to be divorced. This is due to the complexity of the case or because there are unresolved issues that need resolution by the Judge or through an alternative dispute resolution process such as mediation or arbitration. Depending on the issues, the attorneys and the parties, some divorces take more than a year to complete. Even when the divorce is “final”, there are often post-judgment issues, particularly in cases with young minor children, that require additional attorney representation and subsequent trips to court.

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