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Glossary of Common
Terms
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ALIMONY (see
SPOUSAL SUPPORT)
ANSWER
the defendant's first pleading in response to plaintiff's complaint.
The answer can contain a denial, an admission, or state a lack of
knowledge concerning plaintiff's allegations in the complaint.
ARBITRATION
submission of a dispute to a person chosen by the parties'
agreement. Arbitration determinations are generally binding
upon the parties.
ANNULMENT a
proceeding for dissolving a marriage that is void. Annulment,
unlike divorce, invalidates all family ties between the parties as
though they never existed. Grounds for annulment include
marriages obtained via fraud or duress, bigamous marriages,
marriages within prohibited degrees of consanguinity or affinity,
marriages to people of insufficient age, marriages to the mentally
incompetent, marriages to people who are sterile, or impotent, or
have a venereal disease.
BEST INTERESTS OF
THE CHILD Michigan law requires judges to consider only "the
best interests of the child" in deciding contested custody cases.
MCL 722.23
defines "the best interests of the child" as the following 12
factors:
(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.
(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.
CHILD SUPPORT is
money to be paid by a parent for the care, custody, and maintenance
of a child. Child support calculations must be based on the
Michigan Child Support Formula.
COMPLAINT the
plaintiff's first pleading describing the claim for relief and the
facts upon which the claim for relief is based.
CUSTODY the care
and control of a minor child awarded by the court to a parent (or
both parents for joint custody) in a case for divorce, separate
maintenance, annulment, or paternity. Legal custody gives a
parent the right of access to a child's medical and educational
information, along with the right to make medical and educational
decision regarding the child. Physical custody refers to who a
child lives with. In Michigan, custody determinations must be
based on the best interests of the child.
MCL 722.23.
DEFAULT a
notation on the court file allowing a party (generally the
plaintiff) to proceed to judgment without the other party's
(generally the defendant's) participation in the case. A
party's default is entered when that party fails to make a required
procedural action (such as filing an answer to a complaint).
Divorce a legal proceeding to end a valid marriage. The
only ground for divorce in Michigan is the no-fault ground, i.e.,
"there has been a breakdown of the marriage relationship to the
extent that the objects of matrimony have been destroyed and there
remains no reasonable likelihood that the marriage can be preserved"
MCL 552.6(1).
Although proof of fault is not necessary to obtain a divorce, fault
can be relevant in deciding custody, parenting time, property and
debt division, and spousal support. One party can obtain a
divorce even if his or her spouse objects.
DOMICILE the place where a person has a permanent
home, to where, whenever absent the individual has the intention of
returning.
Early Intervention
Conference After a Complaint for Divorce is filed in Oakland
County, the parties and their counsel are required to appear at an
Early Intervention Conference (EIC). EICs are held at the
Friend of the Court (FOC) office before the assigned FOC referee.
The referee conducts a review of the case status, provides the
parties information about the divorce process and FOC services, and
schedules a coparenting class known as SMILE.
ESTABLISHED
CUSTODIAL ENVIRONMENT may not be disrupted absent clear
and convincing evidence that it is in the child's best interests.
A custodial environment is established if "over an appreciable time
the child naturally looks to the custodian in that environment for
guidance, discipline, the 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.
MCL
722.27(1)(c).
Ex Parte a judicial proceeding brought by one party without
notice to the opposing party. Michigan law allows a party to a
divorce (generally the plaintiff) to obtain ex parte relief in
certain circumstances.
Friend of the Court is a branch of each the circuit court
with Michigan. It's duties include enforcing custody, support,
and parenting time orders, and conducting investigations and making
recommendations to the court in custody, parenting time, and child
support cases.
Judgment a court order that contains the court's final
determination of the parties' rights and responsibilities.
Jurisdiction the power of a court to hear a case. For a
divorce or separate maintenance case, the plaintiff or the
defendant must reside in Michigan for at least 180 days before
filing, and in the county of filing for at least 10 days before
filing. MCL
552.9(1).
Injunction a court order that prevents a party from engaging
in certain conduct, or requires a party to engage in certain
conduct, or both.
Legal Custody (see CUSTODY)
"Legal Separation" is not recognized in Michigan
but the law does recognize an action for separate maintenance.
Mediation can be facilitative, or evaluative, or both.
In facilitative mediation, a mediator encourages the parties settle
issues such as property and debt division, spousal support, custody,
parenting time, and child support. In evaluative mediation,
the mediator provides a recommendation for use resolving unsettled
issues. Although a court can order the parties to participate
in mediation, mediation settlement occurs only with the parties'
mutual agreement.
MOTION a
petition requesting that the court grant certain specific relief.
Parenting Time the right of a parent of court-ordered access
to minor a minor child. Courts are required to order a
parenting time schedule that promotes a strong relationship between
the child and the non-custodial parent.
MCL
722.27a(1). the Child Custody Act,
MCL 722.27a(9) gives a parent
exercising parenting time the right and duty to decide all routine
matters concerning the child.
Paternity ACTION a suit to determine or establish fatherhood
of a child born out of wedlock and to provide for custody, parenting
time, and child support once paternity is established. A
father may file a notice of intent to claim paternity even before
the child is born.
MCL 710.33.
Physical Custody (see CUSTODY)
PRENUPTIAL AGREEMENT a prenuptial or antenuptial
agreement is a contract entered into before marriage that limits
property rights that would normally be acquired through marriage.
Properly drafted prenuptial agreements are valid and enforceable in
Michigan. Such agreements can limit or waive a spouse's rights
to spousal support, to the estate of the other spouse, to remain in
the marital home, or to dower, or to a homestead allowance, or to
elect against a deceased spouse's will, etc. Rinvelt v.
Rinvelt, 190 Mich App 372, 475 NW2d478 (1991) establishes three
tests for determining whether a prenuptial agreement can be
enforced:
1. The agreement
was not obtained through fraud, duress, mistake, misrepresentation,
or nondisclosure of material fact;
2. The agreement
was not unconscionable when executed; and
3. The facts and
circumstances have not changed since the agreement was executed in
such a way that makes its enforcement unfair and unreasonable.
Separate Maintenance is filed in the same way and for the
same grounds as divorce. In both separate maintenance and
divorce, the court will divide property and debts, award custody of
children, and set child and spousal support. At the conclusion
of a separate maintenance case, a judgment is entered but the
parties are still married. Although separate maintenance is
rare, it is an option for those who have religious objections to
divorce, or for a spouse's health insurance continuation.
Shared Economic
Responsibility Formula (SERF) when children spend substantial
amounts of time with both parents, the
Michigan Child Support Formula considers the child support
recipient's expense savings. SERF may only be used if both
parents annually care for the child a minimum of 128 overnights
pursuant to the terms of a custody/parenting time order.
Spousal Support (formerly alimony) is money to be paid in a
divorce, separate maintenance, or annulment case by one spouse to
the other for the support of the recipient spouse. Under
Michigan case law, the court must consider eleven factors in
determining whether (and in what amount) spousal support is to be
awarded:
1. Past
relations and conduct of the parties (fault).
2. Length of
the marriage.
3.
Ability
of the parties to work and their respective incomes.
4. Source
and amount of property awarded to the parties.
5.
Age
of the parties.
6.
Ability
of the parties to pay spousal support.
7.
Present
situation of the parties.
8. Needs of
the parties.
9.
Health
of the parties.
10.
Prior
standard of living of the parties and whether either is responsible
for the support of others.
11. General
principles of equity.
SMILE (Start
Making It Livable For Everyone) is the
Oakland County Friend of the
Court's 2-hour educational program for divorcing parents with
minor children. The program assists parents to better understand the
effects of divorce, the needs of their children, and how to promote
a conflict free zone. SMILE is a nationally recognized program
that is sponsored by the Oakland County Circuit Court. The
program is held in the evening twice a month. Parents who have
a pending divorce in Oakland County are required to attend one
session.
Summons a document notifying a defendant that he or she is
being sued. The summons is issued by the court when the
complaint is filed and it notifies defendant that an answer is
required to avoid a default. |
