DOMESTIC RELATIONS (MI only)

MARRIAGE
General Def: Civil contract between man and woman Heart Balm Action: breach of promise to marry is NOT actionable in Michigan Two types of marriage: o Ceremonial (or statutory) o Common law marriage Ceremonial Four requirements: o (1) Consent o (2) Capacity If you lack capacity, license won't be granted. License will not be issued when: One of the parties is already legally married to someone else Parties are too closely related as defined by statute Fraud or sham marriage Parties are incapable of understanding the nature of the act Same sex parties Intoxication o (3) License 18 years old (or 16-17 w/ parental consent) 3 day waiting period btwn the date of the application and the date of the issuance of the marriage license Court may waive with good cause License is void unless marriage is solemnized under the license within 33 days after the application No premarital medical testing (parties must receive written materials on venereal diseases and HIV) o (4) Solemnization/Ceremony (clergy, civil officers empowered to administer oaths) MI requires that the parties solemnly declare that they Common Law Marriage Marriage established by custom Three C requirements: o (1) Consent Parties agree they are related o (2) Capacity The threshold to determine mental capacity is the same used to determine eligibility to obtain a license in a ceremonial marriage o (3) Conduct/Cohabitation Cohabit as husband and wife Cohabitation can be shown by: Tax returns (joint or single) Children Title to assets Joint debt Community perception Michigan ABOLISHED on January 1, 1957

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But under Full Faith and Credit Clause of the US Const, MI will recognize common-law marriages legally entered in other states o A common law marriage is not valid if either party was married to someone else at the time the common law marriage was entered into

ENDING A MARRIAGE
A valid marriage can only be terminated in three ways: o (1) Annulment o (2) Divorce o (3) Death

Annulment An annulment voids a marriage and declares it as having never been valid. An annulment action involves two types of relationships: void and voidable Void o Void ad initio (void form the start) o Treated as if the marriage never existed o Does not need to be judicially dissolved and will not be legally recognized for any purpose o Anyone can challenge o Types of void marriages: Bigamy (prior existing marriage) Incest (first cousins in MI cant get married) Lack mental capacity A marriage contract entered into during a lucid moment is valid as long as the person understood the nature of the contract at the moment the contract was executed VoidableTerminates when attacked o Only parties to the marriage can challenge o Must have a court adjudication o Valid until a court-entered decree o Types of voidable marriage: Those involving a minor A party who is under the age of consent to marry and who did not seek consent of his parents or the court may apply to have the marriage annulled The underage persons parent, guardian, or next friend may bring the action If one of the parties then reaches the age of majority, and the parties continue to reside and cohabit together as a married couple, then the annulment is prohibited Impotence (misrepresentation about matters of sex or procreation) If one party is naturally and incurably impotent the marriage is voidable unless the other person knew about the condition before the marriage 2 year statute of limitations Intoxication One of the parties was under the influence of drugs or alcohol at the time of the marriage and it caused the party to not understand the nature of the transaction Fraud, Misrepresentation, Coercion, Undue Influence Must go to the essentials of the marriage Pregnancy and religion may be grounds for annulment based on fraud; money is not Page 2 of 13

Lack of Intent Entered into the marriage as a joke Equitable Distribution of Property in an Annulment o Any property acquired during the marriage will subject to equitable division o Parties can seek spousal, child support, attorney's fees, and custody

Divorce and Separation (Michigan is No-Fault) No-Fault Divorce o Parties must show that the marriage is irretrievably broken and there is no prospect of reconciliation o Fault will still be considered for property division and spousal support Jurisdiction o A spouse must reside in MI for at least 180 days and 10 days in the county before filing for divorce in MI o Waived if D is not a US citizen and there are minor children at risk of being deported Limited Divorce (Divorce from Bed and Board) o Often utilized for religious or medical reasons o Parties remain legally married o Permitted to live apart o Court decides property division, support, custody Separate Maintenance o Parties seek support for spouse and children o Parties CANT live apart and cant marry another

DIVISION OF PROPERTY
Property Division Two methods in the US: o Community Property (not recognized in MI) o Equitable distribution Objective is to order a fair distribution of all marital property, taking into consideration all of the circumstances btwn the parties Marital Property All property acquired during marriage o Definition is broadly applied and includes retirement benefits and under some circumstances, equity in non-marital property Exceptions to marital property: o Property acquired before marriage o Property excluded by the parties valid agreement entered into before, during, or after the marriage o Property acquired by gift or inheritance (except when it is btwn spouses) o Property sold, conveyed, transferred in good faith and for value before final separation o Property mortgaged or encumbered in good faith before the date of the final separation o Increase in value of separate property during marriage (i.e. husbands antique car is $100,000 before marriage; during marriage it raises to $200,000; marital property is $100,000) o Award, monies, property from a cause of action that accrued before marriage, even if the payment was received during the marriage Factors for Equitable Distribution: Courts look at the totality of the circumstances (AVOID 50-50 split on the essay) Page 3 of 13

Courts o o o o o o o o o o o

consider: Length of marriage Prior marriages Age, health, medical needs Earning potential, debt owed Contributions toward education Needs for future acquisitions Retirement considerations Actions that caused a decline in value in the marital property Standard of living Custody of minors Fault, including: Adultery Abandonment Extreme cruelty

Problematic Assets Considered marital property: o Professional Degrees: are considered marital property in Michigan o Pension o Personal injury proceeds if cause of action after marriage MI views the nature of the award to determine whether it is separate or marital property and allocate the award btwn non-marital and marital property o Post-separation property In MI, the separation date is the date of the final divorce decree Considered separate property: o Personal injury proceeds if cause of action before marriage o Future interests in property o Social security benefits MI has jurisdiction over non-marital property if marital property is insufficient to meet needs of parties or if the other spouse contributed to the acquisition or improvement of the property Tax Consequences of Equitable Distribution o Transfers between spouses during divorce are NOT taxable Divorce Jurisdiction Divisible Divorce Doctrine (ex parte divorce) o Michigan only needs personal jurisdiction over 1 spouse to grant a divorce Only changes parties status from married to single o Cannot determine property division, alimony, or child support issues without personal jurisdiction over the other spouse. When a court makes such a determination, D can challenge the courts orders due to the courts lack of in personam jurisdiction over D Collateral Attack on Jurisdiction o The only way for the non-resident D to attack the issue of an ex parte divorce is to demonstrate that: P was not domiciled in MI at the time the judgment was granted; OR Left right after judgment of divorce o Fit eh court had both personal and SMJ over the parties and the attacking party litigated or had the opportunity to litigate, that person will be precluded from collaterally attacking the judgment in any jurisdiction o D may challenge the court's jurisdiction Indigent Parties Page 4 of 13

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Court must waive filing and service fees Court has discretion to award attys fees and costs if the party is unable to afford the services of legal counsel

MARITAL AGREEMENTS
Types of Marital Agreements Pre-marital Agreements (tested often!) o MI follows the Uniform Premarital Agreement Act (UPAA) o Also known as prenuptial or antenuptial agreement o Made in contemplation of marriage o Must have consideration (a valid marriage is sufficient consideration) o Clauses relating to child custody and child support are unenforceable o Engagement rings: Conditional gifts; if marriage doesn't occur, gift reverts back to the donor Separation Agreements o Contract between the parties that determines post-marriage rights and liabilities o Postnuptial agmts btwn parties who intend to live together as man and wife are unenforceable in the event of divorce o Separation agmts signed in contemplation of separation or divorce are enforceable Will be merged into the divorce settlement as long as they are based on full and fair disclosure Property Settlement Agreements o Agreement to decide how to divide property, can include custody and support o Entered into by the parties before a divorce decree is issue Validity of Marital Agreements Three requirements: o (1) Full disclosure of assets and liabilities btwn parties o (2) The agmt must be fair and reasonable Whats considered fair and reasonable can be based on the relative strengths of the parties including: Financial status Business sophistication Education level o (3) The parties need to have executed the agmt voluntarily Must be free of fraud, duress, or misrepresentation A partys insistence on the agmt as a condition to marriage is not considered duress Court looks at factors including: Time-pressure Prior business experience of the parties Whether the other party was advised to seek independent legal counsel o ***Be sure to discuss whether procedural fairness exists if one party was not independently represented. Address the question of voluntariness by discussing whether the individual was both informed of her right to counsel and given the opportunity to consult counsel*** The burden is on the challenging party to establish by clear and convincing evidence that one of these requirements doesnt exist Even if a valid agmt has been voluntarily executed and meets the requirements, the agmt may be set aside if its result winds up leaving one spouse woefully impoverished to the extent he becomes dependent on the state (i.e., welfare)

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Modification of Marital Agmts Parties cant enter into any agmt that would release or waive child support or custody A court may always modify child support provisions o This right belongs to the child, not the parent Choice of Law In MI, the court will apply the state law of the state that has the most significant relationship to the marriage and to the contract in determining the validity and enforcement of the contract Contracts btwn Unmarried Cohabitants Cohabitation Agmts o Recognized in MI, so long as not supported with consideration of sexual relations o Agmts in which other consideration, such as full-time companionship or cooking, is exchanged for financial support generally will be enforced o Contracts may be express or implied but courts are less likely to enforce an implied contract Property Division o MI doesnt provide for equitable distribution absent an express contract or a contract implied in fact

FINANCIAL SUPPORT OF SPOUSES

Spousal Maintenance Periodic payment of money for maintenance of former spouse Available if necessary to ensure ability of economically weaker party to support him/herself Can be made for a definite or indefinite period of time CANT be discharged in bankruptcy Factors Considered Duration of marriage Contributions to marital estate Age of parties Special medical needs Source and amount of property awarded Necessities and circumstances Ability to pay Earning capacity Reintegration into workforce Past relations of parties Fault (cant be the determinative factor) Types of Support Lump sum o Fixed amount; Non-modifiable o May be in one payment or extended into a series of payments o Doesn't terminate automatically upon remarriage o Chargeable against the estate if obligor dies Permanent support o An award for the remainder of the dependent spouses life, unless certain circumstances occur o Purpose is to compensated the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during marriage

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Primarily used in cases when one spouse remained out of the work force for homemaking or child-rearing purposes o Typically only awarded with long term marriage (i.e., 15 years or more) Limited duration support o Short term marriages with need for some economic support Rehabilitative support o Limited in time, such as until the spouse receives education or employment o Allows spouse time to train and reenter the workforce o Purpose is to enhance and improve the earning capacity of the economically dependent spouse Reimbursement support o Purpose is to compensate a spouse for financial sacrifices made during the marriage which resulted in a reduced std of living in order to secure an enhanced std of living in the future o Often awarded when one spouse has contributed to the enhanced earning capacity or education of the other o Rarely used because it is based on past contributions rather than present or future needs Palimony o Support between unmarried co-habitants o Michigan doesn't award o

Tax Consequences Taxable as income to receiver Deductible by payor Modification of Support Party seeking modification typically has the burden of establishing a significant change in circumstances Voluntary under-employment is NOT a significant change in circumstances and a party who willfully or voluntarily reduces her income will not receive a reduction in support payments o The court will impute to the obligor spouse their earning ability to determine their current status and not what they are actually earning Situations where support can be modified: o Death Death of either spouse will terminate support except lump sum spousal support award o Remarriage Remarriage of the supported spouse will not automatically terminate the obligation Decreases in support are considered on a case-by-case basis Cohabitation without remarriage may also be considered o Retirement Considered on a case by case basis Support During Marriage At common law, a husband owed the wife a duty to provide for the necessities for life Has been abolished in MI as violative of the Equal Protection clause A spouse is only responsible for the debts that he incurs

CHILD SUPPORT
Def: the payment by one parent to the other for the support of a common child Duration varies with each jurisdiction

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Both parents, regardless of marital status, are legally required to support their minor children o In MI, child support generally ends when the child turns 18 but may be continued until the child is 19 yrs 6 mths of age if the child is a full-time high-school student The payment of child support is entirely separate from visitation rights o Visitation rights cannot be denied for non-payment of support

Childs Right to Support Parents CANNOT negotiate or release the right of a child to receive child support Cant do anything that would negatively affect the childs welfare Paternity No time limit to bring action (deemed unconstitutional), but must be brought before the child turns 18 When there is a question as to the father of a child, a court may order blood tests of the child and the possible fathers to determine paternity o If D is indigent, he is entitled to blood testing at the states expense to establish or disprove paternity New putative father lawA biological father to establish paternity of a child born or conceived during a marriage provided certain specific circumstances exist (enacted June 2012!) Marital presumptionThe original paternity law, presumed that a married woman's husband is the father of any child born during a marriage o If the husband was impotent, sterile, or lacked access to the wife during that time, the presumption can be rebutted o Paternity suit only to determine the paternity of a non-marital child Once paternity is established, father has a duty to support his child Personal Jurisdiction Over Out-of-State Parent If the putative or potential father is out of state, the court will establish jurisdiction by: o Uniform Interstate Family Support Act (UIFSA) Adopted by all states and establishes long-arm jurisdiction grounds for out-ofstate defendants The SC has not yet spoken on the constitutionality of the long-arm provisions but several states including MI have upheld the provision as meeting the requisite due process requirements o Personal service o Consent of D o Residency with the child in the state o Past residency in the state o Payment of parental expenses or support of the child o Residency of the child in the state as a result of the actions of D o If the parent had intercourse in the state that resulted in the potential conception fo the child in the state o Parent-D asserted parentage in an imputed father registry in the state o Any other constitutional or statutory basis Amount of Child Support MI has adopted child support guidelines developed by the state Friend of Court Bureau In MI, the child support formula used is the income shares model o Takes a percentage of the income of both parents on the theory that the child should receive the same percentage of income of both parents had the parents remained married

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The court may deviate from this presumptive amount by taking into account a number of factors, such as: Ages of the children Financial resources of the parties; and Expenses related to the child (e.g., child care and educational expenses; health care coverage and expenses)

Modification of Child Support Modifications are permissible when there is a substantial change in circumstances regarding the childs needs or parents financial situation o ***Be aware of fact patterns in which the obligor spouse voluntarily quits her job. The amount of child support may not be reduced simply because she voluntarily reduced her own pay. If this situation arises, discuss the obligors earning capacity, which is the amt she could realistically earn under the circumstances considering her age, mental health, and physical condition*** Overdue payment or past arrears are NOT a good grounds for modification o In MI, retroactive modifications are not expressly prohibited, but are restricted to the time after the petition for modification was filed When there is a change in circumstances that would affect the needs of a party or a child, or the ability of one party to pay support, the trial court may modify a support order even if an appeal is pending Termination of Support Obligation usually ends when the child reaches the age of majority (18 yrs old) o Exception: if the child is mentally or physically handicapped, the support may continue beyond the age of majority Can also terminate in the following circumstances: o Death (of child or parent) o Termination of parental rights o Marriage of child o Emancipation of child ***If there is a question as to whether a minor child has been emancipated, discuss the totality of the circumstances. Emancipation of a minor is fact specific*** Jurisdiction for Modification of Support Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnapping Prevention Act establishes the jurisdiction of a court The court that made the original support order will remain the home state and will have continuing and exclusive jurisdiction to modify the orders until no one resides in that state or other grounds occur The support order can be registered in another jurisdiction, and if so, must be given full faith and credit as if it had originated in the new state Enforcement Same as in spousal support and includes: o Civil contempt o Criminal contempt o Interception of tax refunds o Reporting to credit bureaus o Suspending of professional licenses and driver licenses o Seizing of property and assets o Garnishing wages o Payment of attys fees

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Denial of passport application (allowed by the Personal Responsibility and Work Reconciliation Act of 1996 when the noncustodial parent is more than $5k in arrears on child support obligation) Enforcement in other jurisdictions (when either the payor relocates out of state or child relocates out of state) o Every jurisdiction has adopted the Uniform Interstate Family Support Act (UIFSA) to simplify collection of support payments when the obligor or child resides in a jurisdiction different than the one in which the original order was issued o Once an order is registered in another state, it is enforceable in the same manner and to the same extent as as child support order issued by that state o If there is no personal jurisdiction over the obligor, there is a two-state procedure that can be employed An enforcement order can be obtained in the issuing state by filing an enforcement petition in the initiating state that will be forwarded to the issuing states court ***The modification and enforcement of interstate child support is always governed by UIFSA. If more than one state is involved, always discuss UIFSA, as the failure to follow its requirements doesnt result in its enforcement under the Full Faith and Credit Clause of the US Constitution*** Tax Consequences: NONE o Child support is non-taxable and non-deductible o

CHILD CUSTODY
Types of Custody Having custody of a child can mean having legal custody, physical custody, or both. Either or both of these types of custody can be shred under a joint custody arrangement Legal Custody o Right of the parent to make major decisions regarding the child o Typically areas of health, education, and religion are encompassed Physical Custody o Right to have the child reside with a parent or guardian, and the obligation to provide for routine daily care and control of the child Joint Custody o Parents share decision making responsibilities o MI has a statutory presumption in favor of joint custody o Joint physical custody doesnt necessarily require a 50-50 time sharing requirement Includes any situation where the child maintains a residence at the home of each parent and spends a significant amount of time with each parent o Presumption the child will foster and grow by time with both parents Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Purpose of the act is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation Adjudication under the act requires that the court possess SMJ 4 types of jurisdiction: o (1) Initial Custody Jurisdiction Initial custody determination is made by the home state which: Is the childs home state for at least 6 months; OR Was the childs state within the past 6 mths but the child has moved and one of the parents continues to live in the state o (2) Significant Connection Jurisdiction A court can enter or modify the order if: No other state has or accepts home state jurisdiction

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The child and at least one parent have a significant connection with the state; AND There is substantial evidence in the state concerning the childs care, protection, training and personal relationships o (3) Default Jurisdiction If there is no home state or significant connection jurisdiction, then a court with appropriate connection with the child can establish jurisdiction by default o (4) Temporary Emergency Jurisdiction If there is an emergency need where the child is in danger and requires immediate protection, then a court may step in and temporarily establish jurisdiction Exclusive Continuing Jurisdiction o Courts that make the initial ruling in a custody case have excusive jurisdiction over the matter until the court determines that: The parties no longer reside in the state The child does not have a significant connection with the state; AND Substantial evidence of the childs well-being is n longer available in the state When court can decline jurisdiction o If a court has either initial or exclusive jruiscition, it can decline to exercise jurisdiction if it finds the forum to be invonenent after considering the following factors: The existence of domestic violence The length of time the child has resided out of state The distance btwn the competing jurisdictioins Existence of an agmt btwn the parties on which court would have jurisdiction Nature and location of evidence relating to the child Ability of the court to decide the issues expeditiously and efficiently Familiarity of that court with the facts and issues involved in the matter If a party has engaged in unjustifiable conduct, such as wrongfully removing a child from the state Enforcement o Custody order from one state can be registered in another state (full faith and credit) o The determination of child custody can be expedited After a petition is filed, the respondent must appear at the hearing held on the first judicial day after the service of the order. The petitioner will be awarded immediate physical possession of the child unless: The custody or visitation order was not registered and either: o The issuing court did not have jurisdiction o The order had been stayed or vacted; OR o The respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought The order was registered and confirmed, but the order was stayed, vacated, or modified

StandardBest interests and welfare of the child The std for determining child custody is the best interests and welfare of the child ***For any fact pattern about a proceeding involving children, be sure to discuss the best interests and welfare of the child std in determining child custody*** MI courts must consider each of the following factors in making a best interest of the child determination (even when the parties have already agreed to a custody arrangement): o Emotional ties between the parties and child o Ability of the parties to provide love and affection Page 11 of 13

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Ability of parties to meet material requirements Ability of parties to provide a stable home and living environment Permanency of home Health and moral fitness of parties Child's school and community record Child's preference, if old enough Ability and willingness of the parties to continue a relationship with each other History of domestic violence

Parenting Time Parent by and large has a right to visitation o Exception: visitation will threaten the welfare of the child Grand Parenting Time o In MI, courts can allow for and grant grandparent visitation time in the following situations: Child's parents are separated, divorces, or marriage was annulled One parent is deceased Parents were never married and don't reside in the same household AND paternity was established and the father shares in the responsibilities Legal custody granted to another person other than parents Grandparent provided a stable custodial environment in the year proceeding petition Putative Fathers (unwed biological fathers) o Must demonstrate by positive conduct he's committed to parenthood Prenatal care, financial contributions to child Signed acknowledgement of paternity or an intent to claim paternity in MI before birth Third Parties o Strong presumption that custody to the biological parents serves the best interests of the child Exception: rebut the presumption by showing unfitness Factors the court should not take into consideration: o Sexual relationship or cohabitation of one of the parents Unless the cohabitation has an adverse impact on the children o HIV/AIDS Courts cannot deny visitation merely because a parent has HIV/AIDS Enforcement, Modification, and Termination of Custody Order Modification o Std: There must be a substantial change in circumstances o Best interests of the child is served (look for stability and continuity: dont modify too often) If established custodial environment Party seeking must establish its in best interest of children by clear and convincing evidence If no established custodial environment Party seeking change in custody preponderance of the evidence o MI doesnt impose a time barrier on petitioning for a change in child custody 100 Mile Rule o Custodial parent wishing to move more than 100 miles must seek court approval o Court will make determination if the relocation will be in the best interst of the child and will take into account the improvement in quality of life, the purpose for the

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relocation, intent to frustrate the other parent, resistence by the other parties, and realistic visitation in the future Termination of Natural Parents Rights o Can happen: Voluntarily Involuntarily State must establish by clear and convincing evidence that the parental rights should be terminated Factors: o Desertion o Incapacity o Abuse of sibling or neglect of child o Failure to comply with court order parenting plan o If placed outside the home, for 15 of the prior 22 months, unification attempts have failed Parental Autonomy o Parent has fundamental right under Due Process to exercise control and make decisions o Parens patriea: state can override parent's decision not to seek necessary medical care

ADOPTION
Def: statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established o The new relationship is given all the duties, rights, and obligations btwn the parent and child that the law will recognizes Who can adopt? o Single adults, but not 2 unmarried cohabitants as a couple o Married couple o Adult adoption permitted in Michigan Natural parents right must be terminated voluntarily or involuntarily o In writing and notarized o Common law rule of abandonment The consent of the biological parents to the adoption is not required if the child is abandoned MI follows a subjective test to determine the intent to abandon if the child is under 6 Child over 6, objective test and will look at the conduct of th parties Over 14, the child must also consent to the adoption Michigan does NOT permitted surrogate parenting contracts

Children in Need of Supervision Certain conduct by minor children will permit the court to impose supervisory authority over the child. These actions include: o Habitual truancy o Habitual disobedience of the parents; and o Running away from home The child may be placed under probation or ordered to perform community service and in some instances may be ordered to live with a relative or placed in a state agency Domestic Violence ***In bar exam questions, a typical example of the relief obtained by a protective order is that D must not abuse the petitioner and must have no contact***

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