MI Domestic Relations Flashcards
Ceremonial Marriage Requirements
License and Solemnization
Marriage License Requirements
- Capacity (18 or 16/17 with parental written consent)
- 3-day waiting period; must be solemnized within 33 days of application
- Written materials on venereal diseases/HIV exchanged (but medical testing not required)
When Marriage Licenses Won’t be Issued
- Married to someone else
- Too closely related
- Sham
- Parties incapable of understanding the nature of the act
- One or both under influence of drugs/alcohol
- Lack of consent due to duress or fraud
Solemnization Requirements
2 or more witnesses + officiant
Judge, magistrate, mayor, county clerk, cleric, minister, rabbi can solemnize
Common Law Marriage
Parties agree they’re married, cohabit as spouses, and hold themselves out to the public as married (present intent “we are married”); same capacity requirements as for ceremonial marriage
Abolished in MI unless contracted before 1957
MI will recognize valid common law marriages from other states
Heart Balm Action
Civil suit for damages to a jilted party’s reputation
Abolished in MI
Annulment
Voids a marriage as if it never happened
Void Marriage: prior existing marriage; incest; mental incapacity
Voidable Marriage: age; impotence; intoxication; fraud; duress; coercion; force; lack of intent
Grounds for Divorce
No-Fault:
Irretrievably broken with no prospect of reconciliation
One party must have resided in MI for 180 days immediately before filing
Fault:
May be considered when awarding maintenance
Adultery, cruelty, desertion, bigamy, imprisonment, indignity, mental disorder
Limited Divorce
Rarely used in MI; often for religious or medical reasons
Parties permitted to live apart and be legally married
Separate Maintenance
Decree of support for a party but doesn’t permit living apart; still considered married
Marital Property
All property acquired during or by reason of the marriage
Separate assets when comingled with marital assets and treated as marital property
Appreciation in interest of an actively managed account
Appreciation of marital home (title immaterial)
Non-Marital Property
Property acquired before the marriage
Property excluded by parties’ valid agreement
Property acquired by gift or inheritance (except gifts between spouses)
Property sold/conveyed/disposed of in good faith and for value before final separation date
Property that has been mortgaged/encumbered in good faith before final separation date
Any award/settlement received for cause of action accrued before marriage, regardless of when payment is received
Specific Types of Marital Property
Professional licenses: subject to equitable distribution
Retirement/Pension benefits: marital property if acquired during marriage
Personal Injury claim proceeds:
- Marital: lost wages, earning capacity, medical expenses
usually split based on timing (before v. after split)
- Non-Marital: pain, suffering, disability, and loss damages (injured spouse); loss of consortium (non-injured spouse)
Future interest - not distributable
Social Security benefits - not subject to equitable distribution
Post-separation property: can be marital property
Equitable Distribution Tax Consequences
Transfer of property between divorcing spouses is tax free
The transferee’s tax basis is the same as the transferor’s tax basis upon sale
Jurisdiction
Generally must have both subject matter and personal jurisdiction
MI: a party must reside in state at least 180 days and live in county where filing for 10
Can have sufficient jurisdiction to grant a divorce but not for other related matters (alimony, child support, etc.)
Can challenge ex parte divorces by proving plaintiff wasn’t domiciled in the state at judgment or left immediately after
Types of Marital Agreements
Premarital Agreement: typically terms relating to division of property or spousal support in case of divorce or death
Valid marriage is sufficient consideration
MI adopted the Uniform Premarital Agreement Act
Separation Agreement: enforceable if signed in contemplation of separation/divorce; generally merged into final judgment for divorce (if full and fair disclosure)
Can define property division, spousal support, child support, custody, and visitation
Property Settlement Agreement: settle economic issues of marital estate; entered before a divorce decree is issued
Premarital Agreements are enforceable if: (generally)
- There has been full disclosure of financial status of each party at execution
- Agreement is fair and reasonable
- Agreement is voluntary
Must be in writing and signed by party to be charged
Modification of Marital Agreements
Property Rights may be prevented from modification
Child Support is always modifiable
Spousal Maintenance Factors
Duration of marriage
Contributions to the marital estate
Age
Health and special medical needs
Source and amount of property awarded in divorce
Necessities and circumstances (standard of living)
Ability to pay
Earning capacity
Time required for a party to reintegrate into the work force
Past relations/conduct
Fault can be considered but cannot be the determinative factor
Types of Spousal Support
Lump Sum
Permanent Support
Rehabilitative Support
Reimbursement Support
Lump Sum
Fixed, non-modifiable, doesn’t terminate upon remarriage, chargeable against the estate if obligor spouse dies
Permanent Support
For long term marriages (usually 15+ years)
Generally also applies to people who are older and less likely to remarry or reintegrate into the workforce
Rehabilitative support
Limited in time, typically for the time needed by rehabilitating spouse to enhance/improve their earning capacity and reenter the workforce
Reimbursement Support
Situations where one spouse has contributed to the enhanced earning capacity or education of the other
Palimony
Support between unmarried cohabitants
Not allowed in MI
Modifying Support
Significant change in circumstances in needs of dependent spouse or financial abilities of obligor
No reduction for willful/voluntary reduction in income
Death of spouse terminates support
Remarriage may terminate
Cohabitation may allow for modification if recipient’s needs decrease as a result of cohabitation (not automatic)
Retirement - depends on jurisdiction
Child Support
Entitled until at least 18
Can be extended to 19.5 if still a full-time high school student
Can’t be eliminated by parents
Visitation rights can’t be denied for nonpayment
Revocation of Paternity Act
Allows a child’s mother, acknowledged father, or potential biological father to challenge legal paternity within 3 years of birth or 1 year of acknowledgement of paternity
Calculating Child Support
Income Shared Model
Child should receive same support as if parents were married; rebuttable presumption that amount in guidelines is correct
If court deviates, must set forth:
- Amount that would have been awarded under guidelines
- How the order deviates
- Value of any property/other support ordered in lieu of child support; and
- Reasons why using the formula is unjust/inappropriate
Not tax deductible or included as income
Modifying Child Support
Substantial change in circumstances regarding child’s needs or parents’ financial situation
Again, voluntary reduction in pay not a reason
Terminating Child Support
- Reaches age of majority
- Child marries
- Parental rights terminated
- Child/parent dies
- Can terminate if emancipated
Extensions: 19.5 high schooler, in college, disabled
Child Custody
Legal: right to make major decisions
Physical: right to have child reside with parent and obligation for routine daily care/control
Joint: must both be willing/able to cooperate
Uniform Child Custody Jurisdiction and Enforcement Act
Home State Jurisdiction:
- Child’s home state for 6 months or since birth if too young; or
- Was child’s home state in past 6 months and child now gone but parent continues to live there
Can enter/modify order if:
1. No other state accepts home-state jurisdiction;
2. Child and at least 1 parent have significant connection with state; and
Substantial evidence in the state about child’s care, protection, training, relationships
Default: when no home-state or substantial connection state, default is court in a state with appropriate connections to child
Temporary: if there’s an emergency when the child is in danger add needs immediate protection
Best Interest Factors
- Emotional ties between parents/child
- Ability to provide love and affection and raise child within religion
- Ability to meet material requirements (food, shelter, clothing, medical needs)
- Ability to provide a stable home
- Permanency of the home
- Health and moral fitness of parents
- Child’s school/community record
- Child’s preference (if mature enough)
- Ability/willingness of parents to continue relationship with each other
- History of domestic violence
Upon parent request, court must privately interview minor children regarding preference - not revealed to parents or attorneys
Grandparent Visitation
Allowed in MI when:
- Parents are separated, divorced, or marriage annulled;
- One parent is dead;
- Parents never married;
- Legal custody granted to non-parent;
- Grandparent provided stable custodial environment in year preceding petition
Equitable Parent Doctrine
Applies when husband is not the biological father; must desire rights of paternity and be willing to submit to obligations
Allows husband to exercise parental rights
Involuntary Termination of Parental Custody
Desertion, incapacity, abuse of a sibling, termination of rights over a sibling, abuse and neglect of the child over time, failure to comply with court-structured plan once child assigned a legal guardian
Surrogate Parenting Contracts
Void and unenforceable as contrary to public policy
Domestic Violence
Must be in a relationship with victim or a household/family member
Generally requires a continuum of behavior but a single episode may qualify
Relief is usually injunction but can also include exclusive possession of residence, child custody, and support
