Common Questions

How do I find the right attorney?
A court proceeding can be one of the most difficult and trying times in your life, it is important that you find an attorney you can trust.  Different attorneys have different styles.  A good attorney will help you understand your litigation in an approachable manner.  An attorney who tells you that a divorce is a quick and easy process, may be overlooking the emotional element of a divorce.  Also, be wary of any attorney who promises a specific property settlement or spousal support award, because these things are not always predictable.  An attorney must evaluate your individual facts.  An Attorney that takes a global approach to all divorce cases may not be attentive to the details of your case.

What are the benefits of a small firm?
A small firm, like the Law Office of Jorin G. Rubin, is committed to providing personalized attention and service.  Jorin will handle your case and fight hard to make sure that you receive everything you deserve.  Your contacts are with Jorin and not an associate.

Is there an advantage to filing first?
Filing first may be an advantage to secure the family’s financial status quo in the beginning of the action and to control the flow of the evidence if your case goes to a trial.  Further, by filing first you are able to prepare yourself, financially, physically and emotionally, for the divorce process.  However, if your spouse files for divorce before you do, you are not necessarily at a disadvantage.  Through litigation, you will be able to control the elements of the action.

Where do I file?
Divorce actions are filed in the county in which the parties live. One party must live in the State of Michigan for 180 days and the county in which they are filing for the 10 days prior to filing the complaint for divorce.  If the matter involves a child only and is not divorce, such as paternity, custody or support, the case will be filed in the county and state of the child’s permanent residence.  Once that court has jurisdiction over the case, it will hear all issues related to the case and all disputes after the judgment is entered unless a party moves to a non-adjacent county.

What action should you take if you are served with divorce papers?
If you are served with any type of legal documents from your spouse, you must file an answer or response to the complaint within a specific timeframe after being served.  If you are served with a complaint for divorce, you need to answer in 21 days, if personally served, or 28 days, if served by mail.  Motions must be served seven days before the hearing date.  If you do not answer or respond to a complaint or motion within the specified times, a default judgment may be entered against you.

What does “no fault” mean?
Michigan is a “no-fault” state, which means you do not need to allege a specific basis for your divorce.  In some states, you need “grounds” for a divorce action, such as adultery, irreconcilable differences, domestic violence or substance abuse.  In fault states, one must prove that the grounds actually exist.  In Michigan, as long as one person wants the divorce it will be completed, however, “fault” can play a role in a custody dispute or in the division of marital property.  If a Michigan court determines that one party is at fault for the breakdown of the marriage, then the “innocent” party may be awarded a larger share in the property settlement (up to 10% more) or have an advantage in any custody and parenting time dispute.

How long does it take to get a divorce?
By law in Michigan, a divorce action without minor children born of the marriage requires the parties to wait 60 days.  If the divorce action involves minor children, then there is a six-month waiting period. However, many judges will waive the six-month period after four months if the parties are able to resolve all issues. Virtually no divorce action will continue longer than one year from the date of its filing.

How are my assets and liabilities divided in a divorce?
Generally, all assets and liabilities accumulated during the marriage (regardless of the owner of the asset or liability) will be considered part of the marital estate and be divided.  This includes, bank accounts, real property, personal property, retirement accounts, etc.   Property received as a gift or as an inheritance, as long as kept in an individual’s name, will not be made a part of the marital estate.  Prior to going to an attorney, it is helpful to compile a list of assets and liabilities you and your spouse own, individually and jointly.  It is also important to familiarize yourself with the family’s monthly budget to understand how much money the family uses each month.

What does child custody mean?
There are two types of custody, legal and physical.  Most parents agree to share legal custody, which means they will share in major decisions for their children regarding schooling, medical treatment and religion.  Physical custody is usually the issue in dispute in courts.  If the parents can’t come to an agreement on custody, the court will determine what is in the best interest of the children for custody.

What factors are considered for custody disputes?
Courts determine custody by analyzing what is in the best interest of the child.  There are 12 factors that every judge must examine to decide custody and parenting time.  The 12 Best Interest of the Child Factors are:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i)  The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j)  The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

What does the Friend of the Court do?
If there are children involved in your case, you will very quickly become familiar with the Friend of the Court.  The referees and family counselors conduct investigations and make recommendations regarding custody, parenting time and child support to the Judge.  The Friend of the Court is the first rung in the court system to determine family disputes.  The Friend of the Court also administers child and spousal support.

How is child support calculated?
Child support is determined by the Michigan Child Support Formula. The income of the parties and number of overnights each parent has with the child(ren) are the factors used in determining the amount of child support. Child support includes a base support number, childcare, and ordinary medical expenses.

How is spousal support or alimony determined?
Courts consider 11 factors in determining whether alimony or spousal support should be awarded.  The 11 factors are:

  1. – The past relations and conduct of the parties
  2. – The length of the marriage
  3. – The ability of the parties to work
  4. – The source of and amount of property awarded to the parties
  5. – The age of the parties
  6. – The ability of the parties to pay alimony
  7. – The present situation of the parties
  8. – The needs of the parties
  9. – The health of the parties
  10. – The prior standard of living of the parties and whether either is responsible for the support of others
  11. – General principals of equity.

The longer the marriage, the older the recipient, the less able the recipient is to support him or herself due to lack of education, work experience, or job skills—the more likely spousal support will be awarded.  Spousal support, like child support, is generally modifiable due to a change in circumstances.  However, unlike child support, the parties can agree to make the spousal support nonmodifiable.

What post-judgment issues can arise?
After the divorce has been entered, either party can petition the court to change spousal support, custody or child support by showing a change in circumstances.  The most common changes in circumstances related to support are: either parent obtaining a new job, losing a job or getting a promotion.  These changes can also affect custody and parenting time as well as remarriage of one parent or relocation of a parent.  Once a change is shown, the court then looks to see if the modification is in the best interest of the child.

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