Category Archives: Divorce

Steps in preparing for a divorce

So the time has come. You (or your spouse) have decided that it is time for a divorce.  Kids may or may not be involved, debt is probably involved, there is property and “stuff” involved.

What are the first steps? you may ask. Thankfully, the first steps are relatively simple.

FIRST, locate and secure all of your private documents, birth certificates, taxes, bank Paperstatements, computer passwords etc.  These documents will be vital to show the accurate figures and the paper-trail of how certain funds were used.  It is NOT our position that you get rid of these documents… Just that you make sure you have copies or the originals, and that they are safe.

SECOND, secure your accounts. Verify that you have enough money to hire a lawyer, rent an apartment, or care for your children.  If you expect to continue to live in the marital home, make sure you have access to the funds necessary to do so. It is possible to ask the Court for an order granting exclusive use of the marital home, but this is not guaranteed.

Any pre-filing financial preparation should be done with the knowledge that these funds are probably marital funds. Therefore it is not appropriate to lock the other spouse out of marital accounts, or to unilaterally stop paying on marital bills.  This conversation should take place with a lawyer immediately.

THIRD, make sure that the kids are safe and taken care of in a stable environment.  The Courts do not want to impact the children’s lives simply because their parents are choosing to get a divorce.  In fact, the Courts will generally defer to parents who agree on a custody / parenting time schedule.  That means that if the parents can come up with a working schedule on their own; the Courts will follow it.

FINALLY, take the high road and consult a lawyer.  Many parties decide early on that they want to fight fight fight.  The Courts don’t particularly like this attitude when it comes to bad-mouthing the other parent in front of the kids, hiding of assets, squandering of assets, violence or threats to the other party, and unilateral decision-making by one party. There is a time and a place not to back down on an issue. But rudeness, cruelty, and trickiness will generally hurt your case far more than it will help.

Once you have taken care of these things, you are ready to go talk to a lawyer.  Bring your financial paperwork with you for your initial consultation and know exactly what it is that you want from the divorce.  Your lawyer will be able to tell you whether your wishes can be achieved.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For more information on Michigan divorces, click here.
For information on the differences between marital property and separate property, click here.

How to obtain a Personal Protection Order or PPO in Michigan

How to obtain a Personal Protection Order or PPO in Michigan

A PPO is an order that is signed by a judge that enjoins or prevents the respondent or the person that receive the PPO against them from domestic abuse or stalking. There are two types of Personal Protection Orders in Michigan. Before you request a PPO, you need to first figure out if you need a domestic relationship PPO or a nondomestic / stalking PPO. While you can obtain and contest a PPO without an attorney it is highly recommended that you retain an attorney to help you through this complicated process. Feel free to contact our office today to set up a free consultation on any of our practice areas.

First you must determine what type of PPO you need

The first kind, the Domestic Relationship PPO is available to protect a petitioner who is in a domestic relationship from domestic abuse (do not be confused as this type can also include stalking!) A Domestic relationship in Michigan is defined by MCL 600.2950(1):

A domestic relationship PPO is available to restrain the following

  • Petitioner’s spouse or former spouse.
  • A person with whom the petitioner has a child in common.
  • A person who resides or has resided in the same household as petitioner.
  • A person with whom the petitioner has or has had a “dating relationship.”

Dating relationship is defined as a “frequent, intimate associations primarily characterized by the expectation of affection. MCL 600.2950(30)(a). If the parties are or were in a domestic relationship as defined above then a domestic relationship PPO should be used, even if the domestic abuse constitutes stalking.

The second type of PPO is the nondomestic relationship PPO and this type of PPO is available to restrain anyone who is engaging in stalking, aggravated stalking, or even cyber bullying; or has been convicted of sexually assaulting the petitioner or of furnishing obscene material to the petitioner; or has threatened the petitioner with, or subjected him or her to, a sexual assault. MCL 600.2950a. You do not need any particular relationship to receive a nondomestic stalking PPO against someone. It could even be a stranger.

Please note that that there are special procedures when minors are involved on either side of the PPO. It is highly recommended that you consult with an attorney.

Obtain the appropriate petition and order forms for the type of PPO you need to file

  • For a domestic relationship PPO, you will need a Petition for Personal Protection Order (Domestic Relationship) (CC 375), and the accompanying Order (CC 376).
  • For a domestic relationship PPO against a minor, you will need a Petition for Personal Protection Order Against a Minor (Domestic Relationship) (CC 375M) and the accompanying Order (CC 376M).
  • For a nondomestic stalking PPO, you will need a Petition for Personal Protection Order Against Stalking (Non Domestic) (CC 377) and the accompanying Order (CC 380).
  • For a nondomestic stalking PPO against a minor, you will need a Petition for Personal Protection Order Against Stalking by a Minor (Non Domestic) (CC 377M) and the accompanying Order (CC 380M).

Is it an emergency? Then request an ex parte PPO

If you (the petitioner) are in immediate danger, you may request what is known as an ex-parte PPO. This PPO will take effect immediately, without a hearing and without advance notice to the other party. To obtain a PPO ex-parte, you must show the judge that “immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice” or “the notice will itself precipitate adverse action before a personal protection order can be issued.” MCL 600.2950(12), .2950a(12). If it is not an emergency or the court declines to grant the PPO ex-parte, a hearing must take place before the PPO will be issued.

Filling out the Forms

The required contents of the petition are set forth in MCR 3.703(B), and (D). The required contents of the order are set forth in MCL 600.2950(11) and .2950a(11). You will always want to use the standardized SCAO forms, as they fully comply with all these statutory requirements.

The following information will be required to accurately and completely fill out the forms, thereby improving the chances of obtaining an ex parte PPO:

  • The complete name, address, and physical description of the respondent.
  • The name, date of birth, Social Security number, and current address of any children in common.
  • Any prior lawsuits between the parties.
  • A detailed description of the factual events giving rise to the need for a PPO. It is strongly recommended that the events be listed in chronological order with the most recent event being put first followed by the next most recent and so on. Exact dates, times, and locations are not necessary but are extremely important.
  • Police reports, emergency room reports, photographs, tape recordings, reports from social service agencies, and witness affidavits. Although such evidence is not necessary or required by statute, if you have it, bring it and make the court aware of its existence.

You should also identify the particular conduct you want to have stopped, for example if you want the respondent to stop coming within a certain physical distance to you or making phone contact or letter writing.

Filing the Paperwork in the Correct Court

There is no fee for filing a PPO petition and no summons is issued

To file the paperwork, you will go to your local circuit court. The Statute requires you file it the family division, however, in most courthouses in Michigan the Circuit Court Family Division Clerk’s Office is the same office as the Circuit Court Clerk’s Office. If you attempt to file your paperwork in the Circuit Court Clerk’s Office, and it is refused, they will be able to tell you where the family division Clerk’s office is located. Please note that if the respondent is an adult, you can file in any county in Michigan, regardless of where the parties reside. MCR 3.703(E)(1). If the respondent is under age 18, venue is proper only in the county where the petitioner resides or in the county where the respondent resides. If the respondent does not live in Michigan, venue is proper in the petitioner’s county only. MCL 712A.2(h); MCR 3.703(E)(2).

Please note that according to Michigan’s One Judge / One Family Doctrine if there are other pending or prior actions affecting the parties, for example a prior divorce action, or prior PPO, or paternity, or prior criminal cases involving the respondent, the PPO should be sought in that county. MCR 3.703(D).

If you are requesting Ex-Parte Order, you will have to take the petition and order to the judge assigned to get their approval

After you have filed the petition, you will take the petition, order, and intermediary’s recommendation, if there is one, to the judge, who will determine if there eminent harm exists and is sufficient to grant an ex parte PPO. The judge has 24 hours from the filing of the petition to make this determination according to MCR 3.705(A)(1). If the judge signs the ex-parte PPO, you will need to go to the court clerk’s office to get your copies and arrange for the PPO to be served upon the respondent.

You cannot serve the respondent yourself, but any other adult can serve the PPO upon the respondent for you as long as they are willing to sign the proof of service in front of a notary. A PPO is effective and enforceable upon a judge’s signature without written or oral notice to the respondent, so that failure to make service does not affect the PPO’s validity or effectiveness. MCR 3.705(A)(4), .706(D). However, if the respondent is not served a copy of the PPO it is unlikely that you will be able to enforce it against them for any violations of the PPO.

Once the respondent is served, you need to go to the court clerk’s office and file a proof of service. The proof of service forms are located on the back sides of the petition and PPO forms. Please note it must be signed by the person that served the PPO in front of a notary.

Having a hearing instead of a Ex Parte

If the judge denies the petition for ex parte relief the judge will tell you in writing why it was denied. Further, the court will advise you that you are entitled to a hearing on the PPO to have it entered by hearing (instead of ex parte). The court will schedule you a hearing if you request one. (You may need to contact the court’s docketing clerk to get a date.) If you fail to request a hearing within 21 days of entry of the court’s order denying the request for an ex parte PPO becomes the court’s order is final and the PPO is then denied. MCR 3.705(A)(5).

Finally, there is always the possibility that the grounds you stated fail on their face to allow for a PPO to be issued, ex parte or otherwise. If the court “determines after interviewing the petitioner that the claims are sufficiently without merit that the action should be dismissed without a hearing,” then the court will simply deny your PPO request without a hearing. MCR 3.705(B)(1).

If the court schedules a hearing, you will need to make sure that the respondent is served a copy of not only the petition but also the notice to appear or notice of hearing on the petition for the PPO. You can find a notice of hearing form on the SCAO site as form # CC 381. This notice of hearing must be served personally on the respondent and be done at least one day before the hearing for PPOs that fall under MCL 600.2950 or .2950a(1). MCR 3.705(B)(2). For PPOs under MCL 600.2950a(2), service may be made two days before the hearing. MCR 3.705(B)(2). You may not do the service yourself. Service must be made by a legally competent adult who is not a party to the action. MCR 2.103(A).

Having a hearing to enter the PPO

All PPO hearings are held on the record. If you fail to appear at the hearing the court is likely to dismiss the PPO, however, there is also the possibility that the court could adjourn it to a new date. Do not count on the court adjourning the hearing. Always appear in court when scheduled, in proper attire, and on time.

If the respondent fails to appear, you will need to be able to prove that you gave the respondent notice of the PPO and notice of the hearing date, in the form of a Proof of Service as discussed previously. The court rules in Michigan do allow for a Court to enter a PPO after a hearing when the respondent fails to appear based upon the court determining that you made diligent attempts to serve the respondent, however, most court will require actual service. MCR 3.705(B)(5).

Call 911 if respondent violates the PPO

A PPO is effective and immediately enforceable upon a judge’s signature, without written or oral notice to the respondent, and before entry into the LEIN system. MCL 600.2950(9), (12), (18), .2950a(9), (12), (18). If the respondent violates the terms of the PPO, call 911. Always keep an extra copy of the PPO to show to the police in case the PPO has not been put into the police computers yet or there is some error in their system.

If the respondent is found to have violated any of the terms of the PPO they will be subject to arrest and to the civil and criminal contempt powers of the court, which may include imprisonment up to 93 days and/or a fine up to $500. MCL 600.2950(23), .2950a(23); MCR 3.708(H)(5)(a).

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For information on Michigan divorces, click here.

For information on Michigan Domestic Violence charges, click here.

Using these materials is not a substitute for the attorney’s independent judgment, drafting, and research. Again it is highly recommended you contact Crowley, Cornish, Rockafellow, & Sartz, PLLC for a free consultation on this or any of our other practice areas before proceeding in court as an in pro per.

 

Take the high road and be prepared.

It is often asked of this office “what do I do to prepare for my divorce?” and my answer is ALWAYS “Take the high road and be prepared.”  This means that I do not want you, the client, to empty the marital accounts, I do not want you to hide assets, or to move out in the middle of the night with all the furniture.

What I want, is for you to make sure that you have adequate finances available for a month or so if needed, have access to copies of birth certificates, copies of taxes and bank statements, copies to automobile titles and deeds.

I also want you to keep copies of emails and texts between parties if they are violent or threatening.  I want you to love your children, and to spend as much time as possible with your children, WITHOUT bad-mouthing your partner.

Divorce does NOT have to involve tearing down the other side in 3020752478_7c65dcce3f_morder to bolster YOUR argument for why you should receive something more than them in the divorce. The Court will be watching and your children will be watching too.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

For information on Michigan divorces, click here.
For information on the differences between marital property and separate property, click here.

Marital Property versus Separate Property

I am frequently asked about how to differentiate marital versus separate property in a divorce.  Michigan law tries to be clear-cut on a topic that is rarely so easy.

Separate property is anything that belonged to one party or the other prior to the date of the marriage. Assets and income that is acquired during the marriage is considered “marital,” unless those assets fall into a special category, or have become co-mingled. This is true only to a degree, however. For instance, it is possible for the Court to divide income that was never co-mingled if it exists in a jointly held account.

Income of either party is technically considered “marital” once it hits a joint account. Frequently, a party will try to prevent his paychecks from becoming “co-mingled”  in order to create a better argument that that money is his separate property. BUT, he does not have a “good” argument for this and will likely not prevail at trial.

 

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

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For information on Michigan Divorces, click here.
For information on steps to file a divorce in Michigan, click here.