Your Judgment of Divorce has been entered with the court. But the entry of the Judgment of Divorce has not stopped the issues with your ex-spouse that led to the divorce first place. Now, you are being denied parenting time or being left in the dark on decisions about medical care, schooling, or childcare. How far back in time can you go to help the court understand the issues you have been having?

The courts are limited in what they can do by what the statutes and case law have said about modifying previous orders. For child custody and parenting time, there are statutes and case law that controls the actions and the sequence of those actions that a court can implement.

First, the courts are instructed by statute that a previously entered order cannot be modified unless proper cause or a change of circumstances has been shown. MCL 722.27(1)(c). The party seeking the modification only needs to show one or the other and not both.

Proper cause has been defined as an appropriate reason for the court to change custody currently exists. This would be something that is serious enough to have a significant impact on the child’s well-being. It would also be relevant to at least one of the best interests of the child factors. The moving party will likely to have to prove their case by a preponderance of the evidence (51% certainty or more likely than not).

Change of circumstances requires proving that since the date of the last custody order, the conditions surrounding the child, which have or could have a significant effect on the child’s well-being, have materially changed. Any problems that existed prior to the last order that was entered are not relevant. In addition, the change must be not one that can be seen as a normal life change in a child’s life, such as changing schools, participating in extracurricular events, or the other parent remarrying. Evidence must be presented that the change of circumstances has had or most certainly will have an effect on the child. An effect to one parent or the other will not be enough as the court looks at the best interests of the child. The court will determine each case on its fact and how those facts relate to the best interests of the child.

Change of circumstances is the requirement that clients struggle to understand fully. Some common substantial change of circumstances may include the following: a loss or gain of employment, a sudden change in either party’s finances, a relocation of the parties or children, or a death. The key phrase we emphasize to client is that the conditions that could have a significant effect on the child’s well-being have materially changed. This means the change is not temporary or agreed to by the parties.

Understanding the two grounds for seeking a modification of an existing order leads us to the answer. Generally, the courts will only consider events that have happened since the entry of the last order to determine if the court will be able to decide on requested modification can be heard. This is the first step in seeking a modification in a current custody or parenting time order.

Child Support. It is one issue that can slow down a divorce case. But there are five things that you should know about child support before you bring your divorce to a standstill over the amount of child support being proposed or ordered.

Child Support is controlled by statute.

In Michigan, child support is codified in law. It is known as the Support and Parenting Time Enforcement Act, MCL 552.601 et seq. It was enacted in 1982. It has been modified six times since being enacted with the last amendment happening in 2001.

Child Support is not modifiable retroactively.

Once a child support has been entered by the court, it cannot be retroactively modified except for limited circumstances. MCL 552.603(2). This means once child support is due, which is the first of a month after an order has entered, it cannot be modified after that due date. However, there are some exceptions to this rule. The first exception is when child support is ordered under a temporary order. MCL 552.603(3). Another exception is when the parties agree to a retroactive modification and that agreement is approved by the court. MCL 552.603(5). Another exception is when the individual required by the Friend of the Court knowingly and intentionally fails to report, refuses to report, or knowingly misrepresents his or her income. In this situation, the court may retroactively correct the amount of support after notice and an opportunity to be heard. MCL 552.603b.

Filing a motion and providing notice to the other party can create a date for retroactive modification.

When you have a need to modify your child support order and the other party refuses, you can file a motion to modify child support and provide notice to the other party. This date becomes the first date that child support can be modified. This means that the court can retroactively modify the child support order back to the date the motion was filed, and notice was provided to the other party. Therefore, whenever there is a change in your circumstances that warrants a child support modification, you need to file a motion as soon as possible to preserve the date for retroactive modification.

Child support runs into the future.

A child support order runs into the future, but it is set on current factors. When determining a child support order amount, your current situation will be used. Your current income; ability to work or work more hours, if unemployed or underemployed; any childcare expenses; any medical insurance premiums paid, filing status on tax returns, and number of overnights exercised are all taken into consideration. However, life is never static, and neither should your child support order remain static. If there is a change in your circumstances, such as the number of overnights or if your employment changes, it is time to consult with an attorney to determine if you need to seek a modification. If childcare ends or medical insurance is no longer paid, then those amounts should be dropped from the child support calculations and the order revised.

Child support is for the support of your children.

Remember, child support is paid to help support your children. Refusing to pay your child support impacts the lives of your children. If you are having difficulty in paying your child support, be upfront with the other parent. Open communication with the other parent may make requesting a modification in support easier.

If you need to modify your child support order, call us today to learn about the different packages available to assist you.

With the Governor issuing her Stay Home, Stay Safe Executive Order on March 23, 2020 many are worried about how the order will impact their parenting time. As parents we know that seeing each parent is important for children. With the current crisis, maintaining contact with both parents will be even more important. Here is what you can do to help minimize the anxiety may be feeling.

The Executive Order does not mean the children will not see the other parent as scheduled.

Parents are still allowed to transport children to and from parenting time with the other parent. The Executive Order is not a reason to deny parenting time with the other parent. However, if your children are sick, communicate with the other parent and find out if the other parent still wants to take the children or if the two of you can work a make-up schedule to minimize the number of people exposed to any cold, illness or virus. Remember a cough, sneeze, or fever does not mean that someone is infected with the coronavirus. The symptoms are similar to the common cold, the flu and other illnesses we have been exposed to before this virus.

Follow your holiday parenting schedules.

Even though it may not be possible to travel to Florida or other Spring Break destinations right now, continue to follow the holiday parenting order in your parenting time order. The children have been looking forward to this time with the other parent. The Covid-19 crisis is not a reason to deny this parenting time. If it is your holiday this Spring Break and Easter, find alternate activities that you can do during the Stay Home, Stay Safe Order. Perhaps, you can pitch a tent in the backyard, go on a hike in a local park with social distancing maintained and photograph spring happenings, or rent a movie to watch and create your movie theater.

Allow the children to have more contact with the other parent.

The children may be worried about the other parent or family members, particularly grandparents, from the other parent’s side of the family. Allow and encourage your children to FaceTime or video conference with those family members. This is not a time to be limiting contact with other family members and it can be done virtually. You can sign for a free Zoom account and schedule designated times for these calls. The children can also record video messages to be sent to family members.

Limit your disagreements in earshot of children.

The normal routine for children has been disrupted. Now is not the time to engage in disagreements in front of children. They will pick upon your anxiety and anger. If you need to have a heated discussion, go outside or try sending it through email or texts. Remember that children may access your devices and read these conversations. If you need to save the conversation, consider saving it to a password-protected file

If you are having difficulty with the other parent in following the parenting time order, do not wait to contact an attorney on what to do. Here, at Melissa Pearce & Associates, we are still working during this time, even though we are doing so remotely. We can answer your questions, brainstorm possible solutions outside of the court, and offer other suggestions to assist you. If you speak with one of our attorneys, call (248) 956-6933 for assistance today.

Discussions, memes, news reports and social media are inundated with information about Covid-19. What is not being covered what are divorced parents and single parents with custody orders are doing in regard to parenting time amidst the restrictions that we are seeing. Here are some things that you can do to maintain normalcy during this time of health concerns and crisis.

Follow your parenting time orders.

These are the orders that you agreed to or the court ordered prior to the Covid-19 crisis. What is written in the order is what the courts will enforce. Some individuals are questioning the ability of the court to enforce the orders when courts are limiting the hearings that they are handling right now. Oakland County Circuit Court has issued an emergency order that the court handling essential matters, which includes divorce, custody and parenting time matters alleging an immediate threat of harm to the children. In addition, all motion hearings are adjourned through March 31st. However, the court may hear an emergency motions by telephone.

If the other parent is denying you parenting time now, find out the reasons for the denial. Is your child sick and needs to be quarantined until the illness is confirmed by medical personnel or your child recovers? Does your child have a medical issue that makes them immunocompromised and the other parent is concerned about the child being outside?

Holiday parenting time, particularly Spring Break.

This has been a big topic recently in attorney forums and message boards. Clients across the state are wondering what to do about Spring Break and the school closure. First, have a conversation with the other parent. Ask what he or she thinks should happen. Share your thoughts with them. This is good starting point. Are you both in agreement to follow the school calendar posted last fall and follow the designated days for Spring Break on that calendar? If so, follow the parenting time order that you currently have.

Can we reach an agreement now?

Yes, you are always capable of modifying the parenting time agreement for the best interests of your children. If both parents agree that multiple exchanges are not good for the children and have worked out a compromise that maintains contact between both parents and the children during this time with minimal exchanges with a return normal parenting time after the crisis passes with some make-up parenting time, then reducing that agreement in writing as a Stipulated Order to be signed by the Judge and filed with the court is the best way to document the agreement and prevent conflict later.

Solutions available now

The key to managing and following the parenting time orders is to communicate with each other about what is best for the children. If you are having difficulties communicating with the other parent, contact an attorney today to assist you. Attorneys across the state are offering alternatives means of communicating with their offices outside of actually coming into a physical office. Ask what the attorney’s firm has available for you to have an initial consult with the attorney. Here are Melissa Pearce & Associates, we are rolling out several new services and options to help our clients in handling parenting time disputes quickly and with minimal court involvement. We are creating a page that places all our Covid-19 information in one space for our clients.

If you need help resolving any parenting time issue during this crisis call us at (248) 956-6933.

When it comes to children and divorce, there can be confusion on legal custody, physical custody, parenting time, child support and medical support. Each one of these is a separate issue that must be resolved before the Judgment of Divorce is entered. This blog is introductory on what each one is, and we will explore them in further depth in upcoming blogs.

Legal Custody.

First, legal custody means that a parent has the right make important decisions about your children, such as where they go to school, what religion they are, and major medical decisions. There are two ways this is handled in Michigan. The first way is that the court can award sole legal custody to one parent. This is become the exception more than the rule. The second way is that the court can award joint legal custody to both parents. This is when both parents would have to work together and agree on each of the decisions. If the parents cannot agree, then either one can petition the court for a decision.

Physical Custody.

Physical custody is who the child lives with after the divorce is finalized. If parties can agree, then the physical custody can be one that consider both parents’ work schedules, distances to school, ability to transport back and forth to school for each parent, extracurricular activities of the children, and any unique of the children or parents. The schedule should promote what is best for the child and not necessarily what is the most convenient or desired outcome for either parent.

Parenting Time.

Parenting time is the time the non-custodial parent (the parent who does not have the child living with him or her most of the time) spends with the child. For parents with joint physical custody, this would be the time the child spends in his or her house. Each county has a version of standard parenting time. However, the parties can craft a parenting time schedule that is best for children and considers work schedules, distance to school, ability to transport the child to school, need for childcare, and extracurricular activities. For some parents, parenting time may be supervised for a period of time and would be dependent on the circumstances for those parents and children. Parenting time cannot be denied if child support is not paid.

Child Support.

Child support is money a parent pays to help meet his or her child’s needs when the parent is not living with the child. The court orders the support based on the Michigan Child Support Formula. Support may include payment of the expenses of medical, dental, and other health care, childcare expenses, and school expenses. If either party receives state assistance in any form, then the parties cannot deviate from the child support formula. Child support cannot be denied if parenting time is not occurring.

Medical Support.

Medical support is a form of child support that is often provided through an employer’s health insurance plan. Child support agencies will send a National Medical Support Notice (NMSN) to the employer to order coverage for an employee’s children. The medical support language is contained within the Uniform Child Support Order. It will designate if one or both parents will maintain medical insurance on the children. It will also set a limit of the parent’s income to be used to obtain the medical insurance. If the cost of medical insurance exceeds the limit, the parent can petition to not have the insurance. If both parents are carrying medical insurance on the children, then one parent’s insurance will be primary, and the other’s will be secondary. The order will determine how much each parent will pay toward any uninsured medical expenses not covered by the insurance.

Each one of these areas are considered separately from the others. Although some areas can affect another area. For instance, the number of overnights exercised by a parent for parenting time will impact the amount of child support. However, which parent has legal custody will not change the outcome of child support including medical support.

If you have minor children and are considering divorce, call us to learn more about how a divorce will impact your children and what you can do to minimize that impact.

One of the top reasons that I hear that individuals do not hire an attorney to represent them in a divorce action is that they are afraid of the total fees. Potential clients are worried that attorneys who charge an hourly rate can end up costing tens of thousands of dollars. For some individuals, this is not financially feasible, or the marital estate cannot justify spending tens of thousands of dollars on attorney for a marital estate worth just a few thousand. I agree that when your family is living paycheck to paycheck and barely surviving that the cost of an attorney can be more than the family budget can afford.

However, there are some new trends in legal representation that can provide the assistance of attorney at a reasonable cost. Those trends are flat fees, unbundled services, and limited scope representation.

First, flat fee is an option available to attorneys. However, the hourly fee has been the staple for attorneys representing clients in litigation. Now, there is trend for attorneys to analyze exactly how long a case can take, determine the value of the representation to the client, and calculate a flat fee. Flat fees can offer clients a set price for the attorney’s services in the representation.

Next, attorneys can offer unbundled services. Instead of hiring an attorney for full representation. You may be able to hire the attorney to draft documents, advise you on a particular issue or to review a document. This is a fraction of the cost of full representation. Some attorneys even set flat fees for the unbundled services that they offer.

Finally, the option available is limited scope representation. This is when an attorney can be retained for a portion of the legal case. You could hire the attorney to represent you at a motion hearing or for a parenting time review only.  This requires a special appearance to be filed by the attorney, so the opposing counsel, the opposing party and court know that the attorney is not fully representing you in the litigation.

When you interview an attorney to represent you in you divorce or postjudgment ask them if they offer any of these services.

If you are looking for a law firm that does offer these options in divorce representation, email us at info@melissapearcelaw.com to learn more.

If you are beginning the divorce process, the holiday season can bring up emotional stress.  In the past, your family may have enjoyed holiday traditions as a family.  However, things will change, and the holiday season will be spent without children present or celebrated on alternate days to accommodate parenting time schedules.  Children will adapt if their parents are handling the change with composure. In the weeks leading up to the holiday season, discuss how you plan to celebrate the holidays once the divorce is final.   If your children are old enough, have a family meeting to discuss the change in the holiday family traditions.  Reassure them that celebrating the holidays with each parent separately is fine and that many of their classmates have two holiday celebrations.

The first holiday during a divorce will be fraught with memories of previous holidays and traditions you once shared. Expect to feel sad and remember that your children will be experiencing their own set of feeling.  Have open discussions with your children, if appropriate, about how the change is affecting them. Use this year to make new traditions. If you have always spent Thanksgiving with your spouse’s family, consider visiting yours for a change. Consider volunteering at a local soup kitchen or having a Friendsgiving. When dealing with a divorce, try not to focus on how things were, but how you can redefine or improve your holiday traditions.

One of the most important things to discuss about this holiday season is parenting time. Part of dealing with divorce, especially when you have children, is not letting bitterness color the holiday for you or your children. The other thing to remember is to not speak ill of the other parent to your kids as children can self-identify with the other parent.  Refrain from complaining to your children about having to “share” them for the holidays as children have a right to be a child. If your children are old enough to understand what is happening, chances are they already feel guilty about not being able to see both parents on Thanksgiving.

While a life transition like divorce can consume your thoughts and emotions, remember the holidays are meant to be a time of peace. The very definition of Thanksgiving is “giving thanks.” Take some time to sit down and write out what you are thankful for. Life transitions are never easy, and there may be days where all you want to do is escape the situation. By taking little steps at a time, you and your children will be able to adapt.

If you are struggling with post-judgment parenting time or other issues, the team at Melissa Pearce & Associates is here to help bring back the peace in your holiday season. Call us today at (248)329-0344 to discuss your options.

Lately, I have been receiving questions about whether one spouse can receive any portion of the other spouse’s separate property. The answer is not always clear at first as it requires an investigation into how the property was held throughout the marriage. Clients do not like to wait until after an investigation and analysis to learn whether or not their pre-marital property is protected from the other spouse’s claims. Here are some tips that you can take to maintain the classification of your pre-marital property as separate property not subject to division in a divorce action.

  1. DO NOT ADD YOUR SPOUSE’S NAME TO YOUR PRE-MARITAL BANK ACCOUNTS, DEEDS OR TITLES. When you add your spouse’s name to accounts, deeds or titles that you had prior to the date of marriage, you change how the property is owned. Once your spouse’s name is added to the property, it becomes owned jointly between the two of you. If you want your spouse to inherit the property upon your death, designate him or her as the beneficiary or the person to whom title will transfer upon your death.
  2. DO NOT DEPOSIT INHERITED MONIES INTO MARITAL OR JOINT BANK ACCOUNT. If you receive an inheritance, your spouse is not entitled to any portion of those funds unless you commingle the money with funds held jointly or earned during the marriage. If you have a separate bank account and deposit your weekly paycheck into that account, the account is classified as marital as the pay is earned during the marriage. If your bank account was held in your name alone before the marriage, open a new account for your paycheck after the marriage. By preserving the pre-marital bank account’s classification as separate, you are able to deposit the inherited funds directly into this account. However, if you added your spouse’s name or deposited your weekly paycheck into the account, open a new bank account in your name alone to hold these funds.
  3. DOCUMENT HOW THE MONEY FLOW. When pre-marital property is sold during the marriage, it is key to document where the funds were deposited, what they were spent on, and whose name is on the account. This is called “tracing”. If we can trace the funds used to acquire property during the marriage to separate pre-marital funds, then your spouse may have no claim to the new property acquired during the marriage.
  4. KEEP CLEAR AND ACCURATE RECORDS. One of the biggest struggles I have discovered is in tracing how property was acquired. A spouse may claim that the property was purchased with funds realized from the sale of separate property or funds gifted from parents. However, there is no clear trail of where the funds were deposited and where the funds came from to purchase the property in question. If you can prove how the funds flowed through the accounts, you can show how to properly classify the property as either pre-marital and separate or marital. If you contributed toward your spouse’s separate property’s maintenance, repair, or improvement, then create the paper trail that shows what the monies were used for and how much.
  5. SHARE YOUR RECORDS EARLY ON WITH YOUR ATTORNEY. One of my biggest pet peeves is finding out from my client at mediation that the property in question was owned before the marriage. Sometimes, I am learning that my client knew his or her spouse owned the property in question before the marriage. If you know when the property was acquired and it was separate, tell your attorney. If you know the property became commingled with marital property, provide your attorney the documents early on that prove this happened.
  6. CREATE A PRE-NUPTIAL AGREEMENT. If you are truly worried about your property being seized by your soon-to-be spouse, create a pre-nuptial agreement that clearly states what each spouse owns prior to the wedding day. This agreement should state how the property will be treated upon death as well during a divorce proceeding. Note that if you are presented with a pre-nuptial agreement, take it to an independent attorney to review to ensure that the terms are fair and equitable to you.

It is best to begin using these tips from the first day of marriage. However, if you are just learning them, start compiling the records now. If you need help in analyzing your property or want to learn how to protect a specific piece of property, send us a quick email at info@melissapearcelaw.com.

The Dangers of Domestic Violence

“Why doesn’t she leave him?” This was the topic of a Ted Talk that I watched recently. In that talk, Laura Morgan Steiner shared her story of being abused by her first husband. The abuse not only included physical beatings but also having loaded guns held to her head as he threatened to end her life. She stated that she did not initially view herself as a “victim of domestic violence” but as someone who deeply loved a man struggling to overcome his demons from an abusive past. She thought she could help him. She finally left him after a “sadistic beating” one night and then she told everyone who would listen. In the final minutes of her talk, she lists some tips on how to help your family or friends leave.

The first thing to know is that it is incredibly dangerous to leave an abuser. The final step in the domestic violence pattern is “Kill her.” Laura Morgan Steiner stated that over seventy percent (70%) of domestic violence murders happen after the woman ended the relationship. Other outcomes include long-term stalking, denial of financial resources, and manipulation of the family court system to force the children to spend unsupervised parenting time with the man who regularly beats their mother. There are steps you can take to help your family member and friend leave an abusive relationship even in the face of danger or the prospect of unsupervised parenting time for their children.

How Can You Help the Abused?

The first step is to support her confidence in her ability to leave and to leave safely. I have recently spoken to several individuals trying to break free and the reason that they say that they lack confidence to leave is access to financial resources. Abuse is not physical but includes control over finances. If your friend has been restricted from working, understand that this was a way to control her financial freedom. In order to know that she can leave, she must be confident that she can financially support herself and her children without living on the street as he will have repeatedly told her that she could not survive without him. This fear of being worse off without him than with him is what may be preventing her from having the confidence that she can leave.

The second step is to develop a clear and safe plan for her to leave. This might not happen on your timeframe. She may need to save money, often a dollar here and five dollars there to build up enough funds to leave and not worry about the money. She will need to know how to leave safely, where she can go, what she needs to do to keep him away, and what can she do. All this planning will be scary for her. Offer to help research what is available in her area. Help her set up a secret bank account where she can deposit funds. Research what she needs to do to file a personal protection order. She may have spent years to be told what to do, what to wear, and where she can go. Breaking free and making her own decisions will frighten her. Remember, as she plans, she will need her confidence buoyed up by your loving support and not judgmental statements of contempt for her circumstances or choices.

The third step is developing a commitment to leave. Leaving is frightening. Your friend will remember everything that he said he would do if she left him or how inept she is and cannot make it on her own. She will need you to bolster her commitment to leave. Ask your friend why she wants to leave and when she wavers remind her gently of her words that she said for wanting a better life. She may have told you that if he hits her one more time. Do you know if those words were her commitment to leave or words that she said to pacify you? Unless she has begun planning to leave the relationship, you cannot be certain of her level of commitment to leave. It is not uncommon for the level of commitment to waver as she struggles with the love that she feels for him and her need for safety. This is not a black or white situation for her, your friend is seeing the relationship in shades of grey that are affected by his words and actions as well. The best thing you can do for her is to not bully her into leaving or offer ultimatums to her.

The final step in deciding to leave is the exercise of courage. This will take time for her to muster and exercise. She may test her own courage in small steps, such as developing a plan, confronting her abuser, seeking out professional help, saying something to a friend about what is happening, or saving money in secret. If each one of these steps works out for her without repercussions, then she will move forward toward leaving him. But if she fails in any exercise of courage, it could reinforce what he tells her about how weak or stupid she is. If your friend comes to you and tells you of the abuse that she has been enduring, do not judge or tell her what to do. Ask what you can do to help her. Reaffirm her worth as a person. Offer to be a safe shelter for her, if you can or research where she can go after she leaves. With nearly 20 people every minute experiencing domestic violence by an intimate partner. This equates to about 10 million women and men each year. It is bound to affect someone that you know and love. She may not have the courage to tell anyone, but she needs to know no matter what you are there for her. Since October is domestic violence awareness month, take one action to learn more about domestic violence and what you can do to help a friend in an abusive relationship.

Who owns the child’s clothing, toys, equipment, and personal effects? This is a question that is asked quite often. Arguments are made that the children’s property belong to the parent who purchased the items for the child. This is often followed up with statements that the purchasing parent can prohibit those items from being taken to the other parent’s house. I have heard stories of children wearing a designated outfit on exchange days due to prohibition of taking anything from mommy’s house to daddy’s house and vice versus.

Joint Legal Custody and Children’s Property

In Michigan, when parents have agreed to or are granted joint legal custody, language is typically added to the Judgment of Divorce to define what joint legal custody means. One of the paragraphs defining joint legal custody states as follows:

That the child’s clothing, toys, equipment, and personal effects shall be the property of the child and not the parties. This means that the child’s clothing, toys, equipment, and personal effects may move back and forth with the child between the parties’ respective residences as the child so desires and neither party will impede this process. Furthermore, neither party may enter the residence of the other to retrieve any property belonging to the minor child.

I Bought the Children’s Property. Can I Restrict It’s Movement?

This language attempts to settle the question of who owns the child’s clothing, toys, equipment, and personal effects. There is no restriction on the child on which house property can be moved to. The child decides and neither parent should do or say anything to hinder the child from freely moving property. If you are having disagreements over the children’s property, pull out your Judgment of Divorce or custody order and see what it says. Do you find the above language in your judgment? If so, then the property belongs to the child and she can decide where to take it. If you cannot find the above language or something similar in your judgment, then contact an attorney to find out what you can do to resolve the dispute and minimize the conflicts around the child. If you need help, contact us today for a free 15-minute telephone consultation.