David J. Dart, PC Attorney At Law Located at
9437 N Haggerty Rd, Plymouth, MI.
Phone: (734) 404-5800 http://www.davidjdart.com
 
 
 

Divorce and Family Law

8.jpgDivorce often brings out the worst in people. Stress, anger, jealousy, grief, fear and uncertainty affect the judgment of individuals who are making important, permanent decisions about the future of their family. In times like this, it is important to have solid advice and counsel so that assets are protected and relationships are preserved. David Dart has experience in a wide range of divorce related matters including: child custody, parenting time, child support, alimony, property division and business valuation. By stepping back from the emotions of the moment, David Dart is able to ask important questions so that issues are spotted, likely outcomes are identified and a clear, goal-oriented strategy is developed. Detailed, in-office consultation is a valuable tool in maximizing the best possible outcome and finding a comfort level with an attorney.
 
Did you know that fault is relevant to your divorce?
 
It is a common misperception that no fault divorce means all marital misconduct is irrelevant. This is not true. No fault divorce simply means that it only takes one party to dissolve a marriage. Fault is relevant to the terms of a divorce judgment on specific issues including custody, support and property division. Fault can include abuse or infidelity by your spouse.
 
Did you know that there is an advantage to filing for divorce first?
 
It is a sound strategy to file for divorce before your spouse does in order to protect your rights. The party filing for divorce first is able to ask the court for relief in the form on ex-parte orders which can prevent an angry spouse from liquidating bank accounts, running up debt and removing children from the home.
 
Did you know that the parenting time and custody arrangements contained in your initial divorce or custody judgment are likely to stay in place and may be difficult to change in the future?
 
Child custody law is based around an important idea known as the “established custodial environment.” An established environment is a physical environment where the child lives. An established environment also has emotional components pertaining to how much the child looks to each parent for guidance and discipline. Simply put, if you allow a child to spend most of his or her time living with your opponent, a court is probably going to stick with this arrangement in the future. Once this environment is established, the courts cannot change custody or parenting time in a manner that interferes with this environment unless there is a compelling urgent need to do so. As such, parenting time and custody are much harder to make in the future. Your best chance is to obtain favorable custody and parenting time provisions at the outset, which will be hard for your opponent to take away from you later on.
 
A common error asserted by parents in divorce and custody situations is the mistaken assumption that they can settle “temporarily” and revisit custody and parenting time later on. For example, a parent will often believe he or she can settle a divorce now with limited parenting time, and successfully ask a court to grant equal parenting time when the child is older. Unfortunately, this approach is wrong because it fails to account for the establishment of an environment wherein the other parent spends more time caring for the child’s needs over a period for years. A court is not likely to change this arrangement several years down the road unless a compelling emergency situation arises, which is not usually the case.
 
For these reasons, it is advised that you seek a favorable parenting time and custody schedule in the initial divorce and custody judgment before your opponent establishes an environment in your absence. Do not make the flawed assumption that your parenting time will be easily adjusted in the future. Prior to entering into a judgment that provides you with unfavorable parenting time or custody provisions, contact David Dart. He will explain your rights to you in a concise and clear manner.
 
2.jpgDid you know that child support amounts are based on the annual amount of overnights you spend with your child, and that Michigan courts are awarding fathers equal or expanded parenting time on an increasing basis?
 
Based on recent changes to the Michigan Child Support Guidelines, child support in Michigan is determined by a complex formula which is based largely on the number of overnights that each party receives with the child on an annual basis. This new formulation recognizes that parties providing substantial care for a child deserve lower child support obligations. However, this formulation also encourages less involved parents to insist on additional overnights in order to gain a reduction in support amounts.
 
For years many involved fathers have been relegated to secondary parenting status simply because of their gender. This was not right. Joint custody with equal overnights is being commonly awarded to fathers in Michigan. In many cases, this is an appropriate parenting time schedule. In other cases, equal parenting time is a one-size fits all approach that is over-utilized by uninvolved parents to minimize child support obligations. David Dart has fought for and obtained equal parenting time for deserving fathers throughout the State of Michigan. If you are an involved parent deserving equal or expanded parenting time, call David Dart to discuss your situation.
 
Likewise, if you are a primary caregiver being faced with an opportunistic demand for equal parenting time by a less involved parent who is motivated by a desire to reduce his or her child support, call David Dart. Parenting time schedules are not a one-size fits all device to be applied in the same manner to each case. To the contrary, the law requires a plan individually tailored to the best interests of each child. Call David Dart immediately to discuss an individualized parenting time plan that meets your child’s needs.
 
Did you know that you do not have to move out of the marital residence unless ordered by the court?
 
Quite often, one or both spouses want to separate immediately upon the filing of a divorce. You may want to leave, or conversely you may want to your spouse to leave immediately. The law does not provide an automatic right to move out or kick your spouse out of the marital residence upon filing. Individual courts handle this situation differently. Moving out of the marital residence makes you vulnerable to many potential situations that need to be considered beforehand.
 
 
Courts will usually make the parties pay all marital expenses in proportion to their respective income. Therefore, if you move out and lease another residence, your budget may not accommodate the expenses of both households that the court may impose on you. This concern would not arise if you stayed in the marital residence.
 
The court will usually keep the children at the marital residence, especially if they are enrolled in school. Leaving the residence can harm your chances at temporary or permanent custody, and require child support payments. These concerns would not arise if you stayed in the marital residence.
 
Nonetheless, most courts will not remove one spouse unless there is a compelling reason to do so. Domestic violence, threats, harassment and abuse are commonly accepted reasons for spouse removal. If you are the victim of this type of misconduct it is important to thoroughly document each instance in order to have the best chance of the judge ordering your spouse out of the marital residence.
 
If you are considering moving out of the marital residence immediately after filing for divorce do not do so until after you have spoken to David Dart. If you would like to have your spouse removed from the house, speak to David Dart as well so that you are property advised and represented in your motion for exclusive use of the marital residence.
 
5.jpgDid you know that your children cannot be moved more than 100 miles from their address or out of State without a signed court order?
 
Moving children out of state or more than one hundred miles from the residence at the time of divorce requires entry of a court order. Specifically this is called a domicile order and can be granted or denied by a judge after a trial. A party has the right to oppose/contest this request. Under the law, numerous different factors must be evaluated by a court in deciding a motion to change domicile. If your children have been removed from the State of Michigan without a domicile order you should call David Dart immediately. It is important that you file objections immediately because the Michigan Child Custody Jurisdiction Act states that Michigan loses jurisdiction after six months. If the child spends equal or expanded time with both parents the proof level to remove the child is higher. If moving the child out of state will destroy an established environment, the court will require compelling proof as to why this move is in the child’s best interest. You do not have to agree to your opponent’s request to remove your child. You have the right to a hearing. Call David Dart to discuss your domicile rights immediately.
 
Sometimes it is in the child’s best interest to relocate with a parent outside of the current custodial location. If you need to relocate outside of Michigan do not delay. Life often moves quickly and changes can occur in relationships and employment which require immediate action. You should hire an attorney as soon as possible.
 
It is a common mistake of litigants to call my office under the following scenario: “Mr. Dart, I have purchased a residence in Florida and accepted employment next week. I require an order of the court immediately so I may move my child out of state and enroll him in school.” It would have been smarter to consult a lawyer prior to purchasing real estate or accepting out of state employment. Your opponent is now in a position to exploit your situation because you need to leave immediately. You have needlessly made yourself vulnerable. Do not make this mistake. Do not put yourself in this position.
 
A domicile change requires very specific criteria that takes into account the specific facts and circumstances of your situation. David Dart is familiar with these criteria, and he can evaluate your case to point out the best way these factors apply to your scenario. If you need to move out of state, or if your opponent is planning to move out of state against the child’s best interests, call David Dart immediately.
 
Did you know that alimony is tax deductible and can be increased or decreased after your judgment is entered?
 
Alimony is a dirty word in too many divorce conversations. In the right case, however, it can be a useful tool capable of resolving a divorce on terms that are favorable to all sides. Alimony awards take into account many factors. Two of the most important factors are the length of the marriage, and the earnings of the respective parties. Generally speaking, a primary breadwinner in a long-term marriage has exposure to more alimony liability than an equal earner in a shorter marriage.
 
Alimony is taxable to the recipient. A person who pays alimony can deduct the payments from their taxable income. A properly drafted alimony agreement as part of an overall property settlement can confer benefits to both parties, particularly when the recipient is a lower tax bracket earner in need of income from a payer who is a higher tax bracket earner in need of deductions. Within the limits of the law, and in conjunction with tax professionals, David Dart has structured hybrid alimony and property settlements awards which secure tax benefits not present in a simple property settlement.
 
Unless the parties expressly agree, alimony is always modifiable in the future. Parties can agree to a non-modifiable award, sometimes paid out in a lump-sum. A non-modifiable alimony settlement has risks and rewards. A modifiable alimony award also has risks and rewards. A payer of non-modifiable alimony has to make the same payments even if his or her income decreases. A payer of modifiable alimony is able to petition to reduce payments if his or her income decreases. However, if the alimony payer has increased income, no increased payment is permissible under a non-modifiable settlement, whereas an increase is possible under a modifiable award.
 
A recipient of non-modifiable alimony does not have to worry about decreases in the payer’s income, but he or she will not receive any increases if the payer’s income rises. A recipient of modifiable alimony can ask for increases if his or her situation deteriorates, such as unforeseen health problems or loss of income. These options are not available to recipient of non-modifiable alimony. Some recipients are offered alimony in exchange for property settlement concessions. This may be a good idea for a long-term payer, but not for a long-term recipient unless the award is non-modifiable. For example, it would be a bad idea to permanently trade away a valuable asset such as a business for a modifiable alimony award that could be reduced after judgment enters.
 
Alimony is a complex issue which becomes even more daunting when issues of modifiability are thrown into the mix. If you are the primary breadwinner in a long-term divorce, call David Dart to discuss options. If you are a secondary breadwinner or a dependent in a long-term marriage, David Dart will be happy to discuss an alimony proposal that meets your long-terms needs.
 
Did you know that property settlements in a divorce judgment can never be changed?
 
Some assets are considered marital assets and are subject to division in a divorce. Other assets are considered separate property and are not subject to division in a divorce. Michigan law on marital property is confusing with many categorizations, exceptions and specific criteria. Property distribution in a divorce judgment is non-modifiable. This means that unlike child support or alimony, a property settlement cannot be changed if your financial situation improves or declines after the entry of a judgment. You only get one chance to enter into a property settlement that is in your best interest.
 
Did you know that you may be entitled to a portion of a business that was started or maintained during a marriage?
 
It is very important to have a business evaluation and appraisal done on a business that is owned by you or your spouse. Hiring an accountant, financial analyst or other expert is critical to obtain an accurate dollar value for a business. The wrong valuation of a business could lead to an unfair division of marital assets.
 
 
Did you know that Michigan law allows you to keep separate property obtained by gift or inheritance without awarding an interest to your spouse?
 
Michigan is an equity state that does not follow community property rules famous in state such as California. Michigan does recognize separate property claims of individual spouses for assets they brought into a marriage, and for items such as gifts or inheritance. A lengthy list of Michigan Appellate decisions make it clear that Michigan law does allow one party to be awarded substantial property without marital division. This provision of the law has favorable aspects such as protecting inheritances and property that the other spouse did not purchase or contribute towards. It also has undesirable aspects such as allowing one spouse to leave a long-term marriage with substantially greater wealth than the other, often later in life after years of dependence.
 
Many detailed exceptions and nuances apply to this complex area of the law. If you have accumulated substantial separate property during your marriage that you would like to protect, call David Dart to discuss the facts of your situation. Likewise, if you are facing a divorce where you are concerned that your spouse will be awarded most of the assets leaving you broke and in poverty, there are provisions of the law designed to protect your interests which David Dart can discuss with you in detail.

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