Family Law, Divorce, & Child Custody
Attorney John R. Foley, in practice since 1981, formed his own firm in 1994 to focus exclusively on two practice areas: Family Law, and Labor & Employment Litigation. To this day, Family Law remains one of our foremost practice areas.
Family Law practice falls into essentially two categories: divorce, and child custody. While every case is different and requires specialized attention and treatment, certain features are common to all.
- Issues of custody, parenting time, and child support are the same in either a divorce case with minor children or a custody case.
- All divorce cases, with or without children, must address the issues of spousal support and division of property.
- All family law cases, whether divorce or custody, may present the issue of attorney fees.
Issues Common to Custody Cases and Divorces with Minor Children: Custody, Parenting Time, and Child Support
Child custody. Custody is actually a two-part issue: legal custody, and physical custody.
- Legal custody determines who will have the right to make major life decisions for minor children, such as major medical decisions, educational decisions, and religious decisions.
- Physical custody determines who will be responsible for providing the day to day physical care for the children.
Either legal or physical custody can be joint or sole custody. Joint custody means the parents both share the rights and responsibilities of that form of custody; sole custody means only one parent has the right or responsibility. The consequences of either award can be drastic, and our attorneys can explain to you both the realistic possibilities of obtaining each type of custody, and the consequences, rights, and duties attendant to each award.
Parenting time. Parenting time used to be called “visitation,” and the words are still used interchangeably. The modern term “parenting time,” however, reflects what such time is properly intended to be: time to parent one’s children. Parenting time schedules can vary enormously and be tailored to the specific needs of the parties and the best interests of the children. There are standardized plans, mathematical repeating schedules, and very fluid schedules based on the individual factors of one or both of the parties’ daily lives, such as work schedules, travel schedules, family life, etc, as well as the distance between the parties.
Even in cases where the parties get along, the best thing a family law attorney can do for his or her client is to negotiate and settle in writing a thorough, comprehensive, and detailed parenting time schedule. Such a schedule helps the parties avoid unnecessary confusion and conflict. In some cases, where the parties live close together and demonstrate that they are, and intend to remain, highly cooperative, parenting time can be left as open as “by agreement of the parties.” In high-conflict cases, however, or where there is a danger of alienation, a parenting time agreement is one of the most crucial components of the judgment of divorce.
Child support. Michigan mandates a state-designed child support formula. The formula is based on the custody and parenting time arrangement of the parties, along with the parties’ respective incomes, and other expenses that either party incurs on behalf of the children (for example, a mother paying for daycare, or a father paying for health insurance). The formula determines which party should pay support, and how much it should be.
On the one hand, this calculator reduces inequities caused by the historic process of simply awarding a fixed amount of support payable by the noncustodial parent. On the other hand, the formula is certainly not perfect. For example, the parties’ custodial arrangement is input into the formula using the number of overnights awarded in parenting time. Often times, however, the number of overnights that a child spends with any given parent does not truly reflect the actual amount of time that that particular party devotes to the care of their children. And sadly, some parents use overnights as a bargaining chip to gain more child support or to pay less.
Even where custody and parenting time are clear-cut, the calculation of each party’s income can become a stumbling block. The calculation is straightforward where both parents have W-2 income from an arm’s-length employer. It turns more complicated where either or both parents have fluctuating income, that is in their own control. Calculation of income for individuals who own their own business, or who are members of LLCs or hold shares in closely-held businesses, presents further challenges.
Our attorneys have experience in using the discovery process to delve deep, understand the true earnings and earning potential of both parties, and formulating arguments for imputing—or not imputing—additional income to a party. We are also experienced in understanding when a deviation from the state guidelines for child support are appropriate or necessary in the best interests of the children, and how to present deviations to the court for approval.
Issues Common to All Divorce Cases: Spousal Support and Property Division
Spousal support. Spousal support, or alimony, stems from the idea of making sure that a party who may have forgone their own education or career advancement has the ability to support themselves after the divorce. The courts recognize that couples may agree that one or the other of them is going to stay home, forgo a career, and take care of the children, while the other earns for the family. When that couple divorces, the law deems it inequitable to allow the “earning” party to keep all the money and all the earning potential, while the party who stayed home or helped develop business has no money and no way to earn a good salary. In addition, the law favors allowing both spouses to maintain a similar standard of living after a divorce than they had during the marriage, to the extent that is possible.
Historically, the party who needed spousal support was almost always the wife. As times have changed, either spouse—or neither spouse—may need support after the marriage.
The law conditions spousal support on a variety of factors, with the main premise being to find an equitable solution. Some of the factors that are taken into account when determining a fair award of spousal support include the length of the marriage, whether a party was at fault for the break-down of the marriage, the earning potential, and health of each party, the parties’ needs and ability to pay, and whether either party is cohabitating with a new partner. In cases where the parties have few assets, spousal support might not be appropriate. Conversely, in cases where the parties are high net worth individuals, spousal support may be eliminated by a strategic division of assets in a way that is fair to both parties.
Spousal support contains two main levers: the amount that is paid, and the length of time it is paid. For many years the rule of thumb was that spousal support should be paid for one-third of the length of the marriage, in an amount equal to one-third of the disparity of the parties’ income. Recently, the Michigan Court of Appeals made clear that the courts may not rely on this formula without making additional findings justifying an award of spousal support. But the rule of thumb still provides an informal guideline still used by many judges.
For more information about the wide range of outcomes that one might expect in a divorce, speak to one of our attorneys.
Property division. Almost all couples own property together (that is, marital property) that must be divided. Whether the couple owns multiple homes, helicopters, and horses, or merely some furnishings and a television in their apartment, they still must resolve who gets what property—and what debts—and that decision is often a difficult one.
As a general rule, the law says that each party keeps the property that he or she owned prior to the marriage. Inheritances received during the marriage are also separate property. But once separate property gets co-mingled into a marital property it can be construed as marital property and divided with the rest of the marital estate. For example, comingling might occur when an inheritance is deposited in a joint bank account and used for household expenses, or the value of inherited property is maintained or augmented through the use of marital income, or marital time and effort.
One of the most common assets that need to be divided is the marital home. Determining the home’s value, and which party (if either) should keep the home, often presents a serious issue in a divorce. Fortunately, our attorneys work with a trusted set of appraisers and real estate agents to ensure that we have good evidence of the home’s value that both parties can accept. If necessary, however, we use our knowledge and experience in real estate to make strong arguments at trial over the value of the property. It is exactly that type of preparation that allows us to settle the majority of our cases, on terms fair to our clients.
In the high income, high net worth cases that we handle, property division is often one of the most contentious and litigated portions of a divorce. While we strongly recommend that clients do their best to be cooperative and divide marital property fairly, in a situation where either party chooses not to agree upon a reasonable settlement of the property, our attorneys are skilled in obtaining a fair and just property award to our client.
Issues Common to All Family Law Cases: Attorney Fees
Attorney’s fees. Outside of the context of divorce, the general rule is that parties to litigation are each responsible for their own attorney’s fees regardless of the outcome of the case or the value of any judgment.
But attorney fees for divorce are different in Michigan if one party has more resources than the other. The Michigan Court rules contain a specific provision stating that in a family law case, where one party lacks the ability to pay, and the other party has the ability to pay, the court can apportion attorney’s fees to the party with the ability to pay. In other words, if you earn significantly less money than your spouse, the court has the authority to order your spouse to pay your attorney’s fees so that you can have fair representation in the divorce or custody process.
This provision of the law never guarantees an award of attorney fees, but our attorneys understand how to ask for this award from the court, early on in the case, to make sure that our clients know whether or not the court will order fees to be paid by their higher earnings spouse or, in a custody case, parent. Where appropriate, our attorneys also know how to argue that an award of attorney fees is inappropriate because the other party has ample resources to pay.