Divorce Law

For divorce cases in Michigan, common issues which must be litigated are: (1) property division, (2) spousal support (a/k/a alimony), (3) legal custody / parenting time / parenting time conditions, (4) child support, and (5) attorney's fees.

PROPERTY DIVISION OVERVIEW

The “first consideration when dividing property in divorce proceedings is the determination of marital and separate assets.”  Reed v Reed, 265 Mich App 131; 693 NW2d 825 (2005); Reeves v Reeves, 226 Mich App 490, 493–494; 575 NW2d 1 (1997) (citing Byington v Byington, 224 Mich App 103, 114 n4; 568 NW2d 141 (1997)).

In Leverich v Leverich, 340 Mich 133, 137; 64 NW2d 567 (1954), the court described the property most readily subject to division on divorce as that “accumulated through the joint efforts of the parties during their marriage.”  In Reeves, the court emphasized that its statutory duty was to divide property “that came ‘to either party by reason of the marriage.’”  Reeves, 226 Mich App at 493 (emphasis in original; quoting MCL 552.19).

Courts frequently treat the marital home, or at least increases in value in the marital home, as marital property. In Korth v Korth, 256 Mich App 286, 292–293; 662 NW2d 111 (2003), the court said:  “[T]he sharing and maintenance of a marital home gives both spouses an interest in any increase in value during the course of the marriage.  This increase in value is part of the marital estate.”  In Reeves v Reeves, 226 Mich App 490; 575 NW2d 1 (1997), the court divided the appreciation in the marital home because of the parties’ “sharing and maintenance” of the home. In both these cases, the court awarded the husband his premarital equity in the property.

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Where a spouse treats separate property as if it belonged to the marriage, some courts hold that it becomes marital and divide it as marital property. This situation arises when separate funds are commingled with marital funds, are routinely used for marital purposes, or are placed in joint names.  In Pickering v Pickering, 268 Mich App 1; 706 NW2d 835 (2005), the court found that the parties’ use of personal injury settlement proceeds for joint household purposes could convert arguably separate funds to marital property.  In McNamara v Horner, 255 Mich App 667; 662 NW2d 436 (2003), the court of appeals found that the husband’s entire defined contribution retirement account was marital when his marital contributions and appreciation could not be separated from the premarital portion

This is how Michigan courts deal with the commingling of funds:

Michigan, like virtually every other state, holds that property derived from the earnings or efforts of spouses during the marriage is marital property divisible on divorce.  Cunningham v Cunningham, 289 Mich App 195, 795 NW2d 826 (2010); Darwish v Darwish, 100 Mich App 758, 300 NW2d 399 (1980).  In Darwish, the Court of Appeals rejected the argument that just because an asset came out of one spouse’s paycheck it was necessarily her separate property.

The term separate property is also undefined in the statutes.  Courts have generally understood separate property to mean property that is not divisible on divorce absent special circumstances.  Most often, it includes property owned by one party before the marriage (premarital property); property acquired during the marriage by one spouse through gift, inheritance, or a uniquely personal damage award such as pain and suffering; or passive appreciation of a separate asset. 

In the past, Michigan followed two lines of cases dealing with separate property. One line of cases has been overruled and the prevailing law is now well established by Reeves v Reeves, 226 Mich App 490, 575 NW2d 1 (1997).  Reeves held that a court is required to “weed out” the separate assets of the parties and may only award one party’s separate property to the other if the claimant meets one of two statutory tests: (1) that the claimant contributed to the “acquisition, improvement, or accumulation of the property,” MCL 552.401 (sometimes referred to as the contribution test), or (2) that the award to the claimant out of marital assets is “insufficient for the suitable support and maintenance” of the claimant and any children in his or her care, MCL 552.23 (the insufficiency test, sometimes referred to as a need test).

Property a party owned before the marriage is separate property.  Korth v Korth, 256 Mich App 286, 662 NW2d 111 (2003); Reeves v Reeves, 226 Mich App 490, 575 NW2d 1 (1997).  Courts sometimes find that premarital property has been transformed into marital property because it was intentionally committed to the marital estate by commingling or transfers of title.  See Cunningham (funds deposited in joint account and used to purchase jointly titled marital home); Pickering v Pickering, 268 Mich App 1, 3, 10–11, 706 NW2d 835 (2005) (proceeds of personal injury settlement used for marital purposes); McNamara v Horner, 255 Mich App 667, 662 NW2d 436 (2003) (retirement benefits commingled); Polate v Polate, 331 Mich 652, 50 NW2d 190 (1951).  Compare Hodge v Parks, 303 Mich App 552, 844 NW2d 189 (2014) (no commingling in retirement account).

As a practical matter, the longer a marriage and the more financially interdependent the spouses, the less willing the courts will be to trace and return premarital assets to one spouse. Even if an asset is separate property, income that it earns or appreciation of its value during the marriage may still be divisible.  In Bone v Bone, 148 Mich App 834, 837, 385 NW2d 706 (1986), the court’s division of any “increase in net worth” treated all appreciation in the parties’ separate assets as marital property, arguing that to do otherwise would ignore the existence of the marriage.

Caselaw has recognized two categories of appreciation: active and passive.  Dart v Dart, 460 Mich 573, 597 NW2d 82, reh’g denied, 461 Mich 1205, 602 NW2d 576 (1999), cert denied, 529 US 1018 (2000); Korth v Korth, 256 Mich App 286, 662 NW2d 111 (2003); McNamara v Horner, 255 Mich App 667, 662 NW2d 436 (2003); Reeves v Reeves, 226 Mich App 490, 575 NW2d 1 (1997); see also Hanaway v Hanaway, 208 Mich App 278, 527 NW2d 792 (1995). Active appreciation is appreciation that results from the efforts or contributions of a spouse during the marriage.  In contrast, passive appreciation is an increase in value such as the accumulation of interest or the effect of inflation that occurs independent of any effort or involvement by either spouse.  Active appreciation in separate property is marital property, although passive appreciation remains separate property. Dart; Reeves.

When parties’ direct or indirect efforts give rise to the income or increase in value (active appreciation), a court may view the increased value as the fruit of the parties’ labor, which is clearly divisible marital property, see Byington v Byington, 224 Mich App 103, 568 NW2d 141 (1997); Vollmer v Vollmer, 187 Mich App 688, 468 NW2d 236 (1990), or a court may reach the same result by considering it as separate property but dividing it on the basis of the claimant spouse’s contribution to the marriage as a whole, McDougal v McDougal, 451 Mich 80, 545 NW2d 357 (1996). 

A spouse may be awarded a share of the other’s separate property when he or she contributed to its “acquisition, improvement, or accumulation.”  MCL 552.401; McDougal v McDougal, 451 Mich 80, 545 NW2d 357 (1996); Korth v Korth, 256 Mich App 286, 662 NW2d 111 (2003); Reeves v Reeves, 226 Mich App 490, 575 NW2d 1 (1997); Hanaway v Hanaway, 208 Mich App 278, 527 NW2d 792 (1995); see also Allard v Allard, 308 Mich App 536, 867 NW2d 866 (2014), vacated in part on other grounds, 318 Mich App 583, 899 NW2d 420 (2017).

The contribution may be direct, as it was in Korth where the wife helped to build the marital home and contributed funds to the project, or it may be indirect, as in Hanaway where the wife received value in the husband’s business because of her contribution as a homemaker to the marriage as a whole.

The burden of proving that property is separate appears to be on the party claiming it is separate.  Korth.

A spouse is not liable for debts in the other spouse’s sole name unless he or she expressly contracts to be liable.  In North Ottawa Cmty Hosp v Kieft, 457 Mich 394; 578 NW2d 267 (1998), the Michigan Supreme Court abolished the common-law doctrine of necessities, which had previously provided that one spouse may be held liable for debts incurred by the other spouse for necessities of life, such as medical bills, even if the liable spouse never participated in the contract.

Courts have broad discretion in dividing the marital estate.  Kendall v Kendall, 106 Mich App 240; 307 NW2d 457 (1981); Schilleman v Schilleman, 61 Mich App 446; 232 NW2d 737 (1975).  There is no set formula or rigid mathematical rule for property division.  Rather, the court’s duty is to make a decision that is fair and equitable under all of the circumstances.  Sparks v Sparks, 440 Mich 141, 485 NW2d 893 (1992); Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976); Christofferson v Christofferson, 363 Mich 421, 109 NW2d 848 (1961); Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956); Cartwright v Cartwright, 341 Mich 68; 67 NW2d 183 (1954); Hallett v Hallett, 279 Mich 246; 271 NW 748 (1937); Byington v Byington, 224 Mich App 103; 568 NW2d 141 (1997).

An equitable division is one that is “roughly congruent.”  Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994).  It need not be mathematically equal, but it must be fair under all of the circumstances.  McDougal v McDougal, 451 Mich 80; 545 NW2d 357 (1996); Sparks; Nalevayko v Nalevayko, 198 Mich App 163; 497 NW2d 533 (1993); McLain v McLain, 108 Mich App 166; 310 NW2d 316 (1981).

Caselaw has evolved a list of the factors that a court must consider in deciding what is equitable.  The most commonly cited lists are from Johnson and Sparks.  Johnson listed these factors: 

  • The source of property;
  • contribution towards its acquisition;
  • the years of married life;
  • the needs of the parties;
  • their earning ability; and
  • the cause for the divorce.

Johnson, 346 Mich at 431.

Sparks sets forth these factors:

  • The duration of the marriage;
  • contributions of the parties to the marital estate;
  • the age of the parties;
  • the health of the parties;
  • life status of the parties;
  • necessities and circumstances of the parties;
  • earning abilities of the parties;
  • past relations and conduct of the parties; and
  • general principles of equity.

Sparks, 440 Mich at 159–160 (citing Perrin v Perrin, 169 Mich App 18, 22; 425 NW2d 494 (1988)).

SPOUSAL SUPPORT OVERVIEW

Fourteen factors are considered in determining whether spousal support should be awarded.  They are not codified in statute but are derived from caselaw:

  • The past relations and conduct of the parties;
  • the length of the marriage;
  • the abilities of the parties to work;
  • the source and amount of property awarded to the parties;
  • the parties’ ages;
  • the abilities of the parties to pay alimony;
  • the present situation of the parties;
  • the needs of the parties;
  • the parties’ health;
  • the prior standard of living of the parties and whether either is responsible for the support of others;
  • contributions of the parties to the joint estate;
  • a party’s fault in causing the divorce;
  • the effect of cohabitation on a party’s financial status; and
  • general principles of equity.

Loutts v Loutts, 298 Mich App 21, 31, 826 NW2d 152 (2012) (quoting Myland v Myland, 290 Mich App 691, 695, 804 NW2d 124 (2010), quoting Olson v Olson, 256 Mich App 619, 631, 671 NW2d 64 (2003)).  See also Boyer v Boyer, 30 Mich App 623; 186 NW2d 842 (1971) (ability to pay is relevant to determination whether spousal support should be increased or decreased, but it is not the sole criterion); Ross v Ross, 24 Mich App 19; 179 NW2d 703 (1970) (husband directed to pay spousal support even though he would have to sell assets or go to work because he had substantial personal assets).

Spousal support, like child support, is generally modifiable due to a change in circumstances arising since the last order was entered.  See MCL 552.28; Hall v Hall, 157 Mich App 239; 403 NW2d 530 (1987); Crouse v Crouse, 140 Mich App 234; 363 NW2d 461 (1985).  The moving party has the burden of proof by a preponderance of the evidence.  Crouse.

There is no statutory formula to calculate spousal support.  However, if a case warrants spousal support being awarded, judges oftentimes will award modifiable spousal support to occur for one-fourth to one-third the duration of the marriage, and the payor pays one-fourth to one-third the disparity between the net income of the payor and net income of the payee.  For example, if a marriage was fifteen years long, the plaintiff earns $100,000 per year, and the defendant earns $25,000 per year, spousal support would be paid by the plaintiff to the defendant for 3.75 years to 5 years and in the amount of $18,750 to $25,000 per year, which would be $1,562.50 to $2,083.33 per month.  ($100,000 - $25,000 = $75,000.  1/4 to 1/3 of $75,000 = $18,750 to $25,000 per year.)

Spousal support is modifiable unless the parties come to a settlement agreement and agree otherwise.  If the parties agree that spousal support is not modifiable, then the payee—or payor—cannot file a post-judgment motion to modify the same.

ATTORNEY'S FEES OVERVIEW

Michigan follows the “American Rule” when it comes to the issue of attorney’s fees, which provides that attorney’s fees can only be awarded when authorized by a statute or court rule.  See, e.g., Rafferty v Markovitz, 461 Mich 265, 270, n5; 602 NW2d 367 (1999) (observing that “attorney fees generally are not recoverable in this jurisdiction in the absence of a statute or a court rule that expressly authorizes such an award,” although attorney fees “may be awarded where provided by contract of the parties, or under a limited number of common-law exceptions to the ‘American rule’ recognized in Michigan”).

Furthermore, for well over one hundred years, Michigan has rejected the idea that attorney’s fees can be awarded via “general principles of equity.”  See Kittermaster v Brossard, 105 Mich 219, 221; 63 NW 75 (1895) (rejecting argument that “a court of equity may impose a reasonable solicitor’s fee”); State Farm Mut Auto Ins Co v Allen, 50 Mich App 71, 76; 212 NW2d 821 (1973) (“[The plaintiffs] contend that the chancellor in equity proceedings has broad discretionary powers regarding remedies and, therefore, may grant relief which includes an award of attorney fees as damages.  Michigan case law does not support this contention.”).

For purposes of divorce cases, there are two means by which attorney’s fees can be pursued if warranted by the applicable facts:  MCR 3.206(D) and MCR 1.09(E).

MCR 3.206(D) states:

(D) Attorney Fees and Expenses.

(1)   A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.


(2)  A party who requests attorney fees and expenses must allege facts sufficient to show that


(a)  the party is unable to bear the expense of the action, and that the other party is able to pay, or

 

(b)  the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCR 1.109(E) provides in pertinent part:

(5) Effect of Signature.  The signature of a person filing a document [with a court], whether or not represented by an attorney, constitutes a certification by the signer that:

(a) he or she has read the document;

(b) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and

 

 (c) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.


(6) Sanctions for Violation.  If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.  The court may not assess punitive damages.

(7) Sanctions for Frivolous Claims and Defenses.  In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2).  The court may not assess punitive damages.

Where the law speaks—and the law speaks loud and clear through MCR 3.206(D)(2) and MCR 1.09(E)—, equity cannot be awarded.  See generally Dumas v Helm, 15 Mich App 148, 152; 166 NW2d 306 (1968) (the court’s broad discretionary powers regarding equity are not to be used to enlarge a party’s statutory rights); see also Paschke v Retool Industries, 445 Mich 502, 510; 519 NW2d 441 (1994) (Brickley, J., concurring) (“It is well established that ‘equity follows the law,’ and that where legislation provides an adequate legal remedy, the judiciary may not create additional relief by invoking equitable doctrines.”)

Notwithstanding MCR 1.109(E), MCR 3.206(D)(2) only contains two situations in which attorney’s fees can be awarded by a trial court for a divorce action, and via the statutory interpretation rule of expressio unius est exclusio alterius ("The express mention of one thing excludes all others"), a trial court is legally unable to award attorney’s fees which is not explicitly permitted by Michigan Court Rule.  See generally Feld v Robert & Charles Beauty Salon, 453 Mich 352, 362; 459 NW2d 279 (1990):

While it is true that the maxim [(expressio unius est exclusio alterius)] is a rule of construction as opposed to a rule of law, “[i]t is a product of 'logic and common sense.'  It expresses the learning of common experience that when people say one thing they do not mean something else.” 2A Sands, Sutherland Statutory Construction (4th ed.), Sec. 47.24, p. 203.  Furthermore, the principle of expressio est unius exclusio alterius is well recognized throughout Michigan jurisprudence.  See Alan v. Wayne Co., 388 Mich. 210, 253, 200 N.W.2d 628 (1972); Stowers v. Wolodzko, 386 Mich. 119, 133, 191 N.W.2d 355 (1971); Taylor v. Public Utilities Comm., 217 Mich. 400, 402-403, 186 N.W. 485 (1922).

In Taylor, supra at 402-403, 186 N.W. 485, this Court recognized that “[e]xpressio unius est exclusio alterius has been a long time legal maxim and a safe guide in the construction of statutes marking powers not in accordance with the common law.”

“When what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted.  Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provisions that mode must be followed and none other, and such parties only may act.” Id. at 403, 186 N.W. 485.

LEGAL CUSTODY, PARENTING TIME, AND PARENTING TIME CONDITIONS

Legal custody refers to which parent gets to make the important decisions concerning the minor children—including but not limited to healthcare-related matters and education-related matters.  Legal custody is either awarded to both parents—which is referred to as joint legal custody—and the parents must agree upon important decisions concerning the minor children or else file a motion to have the court decide, or legal custody is awarded to only one of the parents—which is referred to as sole legal custody.

Legal custody is to be ordered based upon that which is in the best interests of the minor children.  See MCL 722.23; MCL 722.26a(1)(a).  Furthermore, joint legal custody can only be awarded if the parents are “able to cooperate and generally agree concerning important decisions affecting the welfare of the child.”  MCL 722.26a(1)(b).

In Fisher v Fisher, 118 Mich App 227, 232-233; 324 NW2d 582 (1982), the Michigan Court of Appeals pertinently noted:

Defendant asks the Court to order joint custody of the parties' children.  In order for joint custody to work, parents must be able to agree with each other on basic issues in child rearing--including health care, religion, education, day to day decision making and discipline--and they must be willing to cooperate with each other in joint decision making.  Rolde v. Rolde, 425 N.E.2d 388 (Mass.App.1981).

* * *

If two equally capable parents whose marriage relationship has irreconcilably broken down [324 N.W.2d 585] are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.  M.C.L. Sec. 722.26a; M.S.A. Sec. 25.312(6a).  The establishment of the right to custody in one parent does not constitute a determination of the unfitness of the noncustodial parent but is rather the result of the court's considered evaluation of several diverse factors relevant to the best interests of the children.  M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3).

It should be noted that in McCain v McCain, 229 Mich App 123; 580 NW2d 485 (1998), the Michigan Court of Appeals held that it was proper for the trial court to award sole legal custody to the father because the statutory child custody best interests factors weighed in favor of him even though the father’s vindictiveness would probably act to destroy the parent-child relationship with the mother.

Parenting time refers to the schedule that parents exercise with the minor children, and a parent can demand that a parenting time schedule be ordered at any time.  See MCL 722.27a(8) (“Parenting time shall be granted in specific terms if requested by either party at any time.”); see also Pickering v Pickering, 268 Mich App 1, 4; 706 NW2d 835 (2005) (error for trial court to award “reasonable and liberal parenting time” to defendant and refuse to consider awarding specific parenting time on defendant’s oral motion for parenting time, made during hearing to resolve objections to proposed judgment).

Parenting time is to be ordered based upon that which is in the best interests of the minor children.  See MCL 722.23; MCL 722.25(1).  Says MCL 722.23:

As used in this act, "best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court:

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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.

 

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.

MCL 722.27a(7) further states:

The court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted:

a. The existence of any special circumstances or needs of the child.

 

b. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.

 

c. The reasonable likelihood of abuse or neglect of the child during parenting time.

 

d. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.

 

e. The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.

 

f. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.

 

g. Whether a parent has frequently failed to exercise reasonable parenting time.

 

h. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent's temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent's intent to retain or conceal the child from the other parent.

i. Any other relevant factors.

The Child Custody Act is intended to govern questions of visitation rights as well as child custody disputes.  MCL 722.21, et seq.; Hoffman v Hoffman, 119 Mich App 79; 326 NW2d 136 (1982).  The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if the modification is in the child’s best interests.  MCL 722.27(1)(c).  However, parenting time modifications “are not necessarily changes in custody.”  Rains v Rains, 301 Mich App 313, 340; 836 NW2d 709 (2013).  The standards used to determine the existence of proper cause or change of circumstances for custody determinations under Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003), do not apply to parenting time determinations “absent a conclusion that a change in parenting time will result in a change in an established custodial environment.”  Shade v Wright, 291 Mich App 17, 26-27; 805 NW2d 1 (2010).  If a request to modify parenting time does not affect the established custodial environment then the lesser and more flexible standard of proper cause or change of circumstances articulated in Shade applies.

Before ruling on a request to modify a previous judgment or order—or to issue a new order—regarding parenting time, the trial court must first determine whether an established custodial environment exists.  MCL 722.27(1)(c).  Says said subsection in pertinent part, “The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”

If an established custodial environment exists, a change may be made only on clear and convincing evidence that it is in the child’s best interests; otherwise, a preponderance of the evidence standard is sufficient to change custody. Whether an established custodial environment exists is a question of fact for the trial court.  Ireland v Smith, 451 Mich 457; 547 NW2d 686 (1996).  The trial court is not concerned with the reasons behind the existence of such an environment but only that it exists.  Treutle v Treutle, 197 Mich App 690; 495 NW2d 836 (1992).

A custody order, by itself, does not establish a custodial environment.  Bowers v Bowers, 198 Mich App 320; 497 NW2d 602 (1993).  In Bowers, repeated changes in physical custody and uncertainty created by an upcoming custody trial destroyed a previously established custodial environment and precluded the establishment of a new one.  In Jack v Jack, 239 Mich App 668; 610 NW2d 231 (2000), a temporary custody order granted both parents physical and legal custody of their two children, but the judgment of divorce granted sole physical custody to one parent.  The Jack court found that the trial court had failed to determine whether an established custodial environment existed with both parents.  Holding that such an environment existed with both parents, the court remanded the case and ordered the trial court to determine whether there was clear and convincing evidence demonstrating that a change in custody was in the best interests of the children.

Joint custody arrangements have been found to create established custodial environments with both parents. Thus, parents seeking to change the joint custody arrangement or to gain sole custody must show by clear and convincing evidence that a change is warranted.  Duperon v Duperon, 175 Mich App 77; 437 NW2d 318 (1989); Nielsen v Nielsen, 163 Mich App 430; 415 NW2d 6 (1987).  If no established custodial environment exists, custody may be modified by a showing by a preponderance of the evidence that a change would be in the best interests of the child.  Hall v Hall, 156 Mich App 286, 289; 401 NW2d 353 (1986).

“It is presumed to be in the best interests for the child to have a strong relationship with both of his or her parents.  Except as otherwise provided [in MCL 722.27a], parenting time shall be granted to a parent in a frequency, duration, and type reasonable calculated to promote a strong relationship between the child and the parent granted parenting time.”  MCL 722.27a(1).

Although they are not binding, the Macomb County Circuit Court has a general parenting time plan, an infant parenting time plan, a joint custodial parenting time plan, and a long-distance parenting time plan as examples on its website.  Note that for situations in which both parents are fit (i.e., no active criminality, no active mental health concerns, and no active substance abuse concerns), and so long as they reside relatively close together—within a forty-five-minute car ride, most judges tend to be inclined to award a parenting time schedule which is relatively even.  Such a parenting time plan might alternate weekly (i.e., every other Sunday at 8 p.m. to Sunday at 8 p.m.) or be broken up in a 2-2-3 manner (i.e., father has every Monday and Tuesday, mother has every Wednesday and Thursday, and the parents alternate every other week as to which parent has Friday through Sunday).  Note, too, that summer parenting time schedules can differ from parenting time schedules in place during the school year.

Other than legal custody and the parenting time schedule, the court must also decide what parenting time conditions should be ordered. 

Says MCL 722.27a(9):

A parenting time order may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time by a parent, including 1 or more of the following:

a. Division of the responsibility to transport the child.

b. Division of the cost of transporting the child.

c. Restrictions on the presence of third persons during parenting time.

d. Requirements that the child be ready for parenting time at a specific time.

e. Requirements that the parent arrive for parenting time and return the child from parenting time at specific times.

f. Requirements that parenting time occur in the presence of a third person or agency.

g. Requirements that a party post a bond to assure compliance with a parenting time order.

h. Requirements of reasonable notice when parenting time will not occur.

i. Any other reasonable condition determined to be appropriate in the particular case.

The Macomb County Circuit Court also has guidelines about how parents should deal with COVID-related concerns in the context of parenting time.

The State Court Administrative Office published the Michigan Parenting Time Guideline after consulting with an advisory committee of lawyers, family court judges, Friend of the Court personnel, and child psychologists, and it contains a comprehensive explanation about what type of parenting time arrangements should be ordered for typical and atypical situations.

After a judgment of divorce is entered, if the situation warrants it, a post-judgment motion can be filed and litigated to try to modify the legal custody, parenting time, and/or parenting time conditions that were previously ordered by the court.  A comprehensive flowchart which describes this process can be found on the website of the Michigan Judicial Institute.

CHILD SUPPORT OVERVIEW

Child support is normally calculated via the Michigan Child Support Formula, which is online in its entirety and as a supplement.  MCL 552.605(2).  The primary factors which influence are:  (1) the number of minor children, (2) the number of overnight parenting time each parent exercises, and (3) the actual or imputed incomes of the parents.  An informal child support calculator is online.

NAME CHANGE

MCL 552.391 states:

The circuit courts of this state, whenever a decree of divorce is granted, may, at the instance of the woman, whether complainant or defendant, decree to restore to her her birth name, or the surname she legally bore prior to her marriage to the husband in the divorce action, or allow her to adopt another surname if the change is not sought with any fraudulent or evil intent.