Changing Physical Custody: Custody Modification

Child custody is never set in stone.  A party can switch custody of a minor child to the other parent if “proper cause is shown” or because of a “change of circumstances” and if the change is in the child’s best interests.

There are basically 3 issues a court will look at when deciding a change of custody of a minor child:
1. Has the petitioner met his or her initial burden of proof establishing either a proper cause shown or a change of circumstances?;
2. Does an established custodial environment already exist?; and
3. Is the change of custody in the child’s best interests?

The petitioner must show by the preponderance of the evidence that, as a threshold matter, proper cause or a change of circumstances exists for the court to even consider a change of custody.  Here, the evidence must demonstrate something more than a normal life event or life change and there must be evidence that a material change has or will have an effect on the child.

If petitioner can satisfy this initial burden, the court will then determine if an established custodial environment exits.  If yes, the petitioner must then prove by clear and convincing evidence that a change or modification of custody is warranted.

When deciding a change of custody, the court is required to consider the “best interest” factors:
— The love, affection and other emotional ties existing between the parties involved and the child.
— The capacity and disposition of the parties involved to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
— 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.
— The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
— The permanence, as a family unit, of the existing or proposed custodial home or homes.
— The moral fitness of the parties involved.
— The mental and physical health of the parties involved.
— The home, school and community record of the child.
— The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
— The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
— Any other factor considered by the court to be relevant to a particular child custody dispute.

Changing or modifying physical custody can be accomplished.  Contact Eric Tomal if you have custody questions.

Divorce or Legal Separation?

Divorce means you will end your marriage, divide marital assets and debts, determine alimony, if any and possibly determine child custody, parenting time and child support.  Legal Separation (Separate Maintenance Action) means you will accomplish the same goals as a divorce, but the end result is that the parties will still married.

Why would a couple want a Legal Separation instead of a Divorce?  The following are a few examples of why a couple will seek a Judgment of Separate Maintenance:
a. The couple has a religious objection to divorce;
b. Not considering COBRA, in order for one spouse to have continued health insurance coverage on the other spouse’s insurance plan, the spouses stay married, but legally divide everything else;
c. The parties are not for sure that they want a divorce or to end the marriage, so they protect themselves from the actions of the other spouse.  Such actions may be increasing credit card debt, liquidating bank accounts, obtaining liens on collateral, etc.; and
d. A husband or wife may want to protect his or her assets from the other spouse.  If a spouse expects the net equity of a house to increase substantially or he or she may acquire a new asset in the future or expects to receive an inheritance in the near future, a Legal Separation may be the answer.

An action for a Legal Separation is not common in Michigan.  Most couples file for divorce because usually at that point the relationship has deteriorated too much.  Likewise, if you obtain a Judgment of Separate Maintenance and want to be divorced later, you will have to start the divorce process all over again if you want to be divorced from your  spouse.                 

Annulment: Can I Annul My Marriage?

An annulment means a judge will rule that a marriage was not valid because of a defect that existed when the parties were married.  A divorce means a judge will terminate a marriage for reasons that occurred after the marriage took place.

Common reasons for an annulment are: bigamy, fraud, duress, sterility or impotency and other grounds:

1. Bigamy.  A marriage is illegal if it is performed while a prior spouse, from whom no divorce was ever granted, is still living.  If husband is married to a living spouse (spouse #1) and then husband marries a new spouse (spouse #2) without first getting divorced from spouse #1, the marriage to spouse #2 is deemed to have never taken place.

2. Fraud and Duress.  In order to get married, both parties have to freely and voluntarily enter into the marriage — the contractual relationship.  If a spouse would not have entered into a marriage except for fraud or duress, the voluntary consent necessary for a valid marriage (a valid contract) does not exist.  If a future spouse makes false and material representations to another future spouse, an annulment is possible.  

3. Sterility or Impotency.  An annulment is possible if one spouse is incapable of having children, this incapacity existed at the time of the marriage, the physical incapacity is incurable and the other spouse does not know about the incapacity on or before the  marriage ceremony.  

4. Other grounds.  There can be other grounds to justify an annulment — it just depends on your particular situation.  Some examples are:
a. One spouse has a venereal disease and does not tell his or her spouse;
b. One spouse will not have sex with his or her spouse;
c. A spouse is deemed to have been mentally incompetent at the time of the marriage ceremony;
d. A spouse is under age;
e. A marriage between parties who are related within certain degrees of consanguinity or affinity.  Consanguinity refers to a blood relationship and affinity refers to the relationship between one spouse and a blood relative of the other spouse; and
f. A marriage between persons of the same sex.

What is a Prenupt Agreement?

A Prenupt Agreement is basically a contract between a future husband and wife.  The contract (the Prenupt Agreement) has to be in writing (it cannot be verbal) and signed by the future husband and wife.  The signing of the document has to take place prior to the marriage ceremony.  There is no requirement that the signing be witnessed or notarized.  However, the likelihood that the Agreement will be enforced later will increase if the same is signed in front of two witnesses and notarized by a notary.  There is also no requirement that either side obtain an attorney.  However, the likelihood that the Agreement will be enforced later will increase if both sides have an attorney and have ample time to consult with an attorney regarding the Agreement.

Generally speaking, there are two main purposes for entering into a Prenupt Agreement — to preserve assets accumulated before and/or during the marriage and to avoid being liable for your spouse’s debt accumulated during the marriage.  The Agreement is designed to allow either spouse to retain or keep separate from the other spouse, all assets and income accumulated either before and/or during a marriage.  The Agreement is also designed to keep separate, all debts accumulated by either spouse during the marriage.  Basically, you enter into a Prenupt Agreement to retain 100% ownership of all assets and income accumulated during the marriage.  Likewise, you enter into a Prenupt Agreement to avoid being made liable in Divorce Court for the debts of your spouse.

Generally speaking, if you do not have a Prenupt Agreement, you will have to give your spouse 50% of all assets that you accumulated during the marriage.  Likewise, if you don’t have a Prenupt Agreement, you will be 50% responsible for all credit card debt, doctor bills, etc. that your spouse accumulates during the marriage — regardless of whose name is on the debt.

There are no set time limits placed on a Prenupt Agreement.  That is, a Prenupt Agreement can last for 5 years, 10 years or forever.

Prenuptial Agreement — Prenupt

Prenuptial Agreements are valid under Michigan law.  MCLA 557.28.  To determine the validity of a Prenuptial Agreement, the court will generally consider the following questions:

1. Whether the agreement was obtained through fraud, duress, mistake or misrepresentation or nondisclosure of a material fact?
2. Whether the agreement was unconscionable when signed?
3. Whether the facts and circumstances have changed since the agreement was signed so as to make its enforcement unfair and unreasonable?

A key component to entering into a Prenuptial Agreement is the timing of the execution of the agreement in relation to the marriage ceremony.  That is, don’t wait until the last minute to discuss or sign a Prenuptial Agreement.  The longer each spouse has prior to the marriage to review, negotiate, make changes, obtain an attorney and sign the Prenuptial Agreement, the more likely the agreement will be valid and enforced in a court of law.

Eric X. Tomal: Divorce Attorney, Criminal Defense and Bankruptcy Lawyer

When you’re looking for quality and affordable legal services in Lansing,  Michigan, call the Law Office of Eric X. Tomal.  517-323-9340.  All major credit cards are accepted.  With 20 years of legal experience, Attorney Tomal’s  commitment to excellence has earned him the reputation as the best lawyer in the area.  Attorney Tomal is aggressive, experienced and he gets results.  Attorney Tomal’s staff of Attorneys have a combined legal experience 60 years. 

Attorney Tomal, along with his staff of Michigan Attorneys, regularly practices law in various District and Circuit Courts throughout the State of Michigan: Lansing; East Lansing; St. Johns; Mason; Charlotte; Corunna; Howell;  and Jackson. 

Our Attorneys and Lansing Law Firm serve the greater Lansing area and Michigan, including Lansing, East Lansing, Holt, Grand Ledge,  Haslett,  Okemos,  Dewitt, St. Johns, Charlotte, Portland, Owosso, Corunna,  Jackson,  Williamston,  Laingsburg, Mason, Eaton Rapids, Howell, Perry, Ionia, Olivet and Battle Creek.  

Attorney Tomal, along with his staff of Michigan Attorneys, specializes in Criminal Defense, Drunk Driving, OWI, Divorce, Custody, Family and  Bankruptcy law.  Attorney Tomal, and his staff of Michigan Attorneys, has the experience and legal knowledge to get you the results you deserve.

Attorney Tomal is aggressive, affordable, experienced and he gets results.  Contact Attorney Eric X. Tomal today, at 517-323-9340, for a free telephone consultation. Attorney Tomal will gladly answer all of your questions for free.

Attorney Eric X. Tomal
Tomal & Dudley, P.C.
4112 W. Saint Joe Hwy.
Lansing, MI 48917
We accept all major credit cards.