What are the requirements for a valid marriage?
Need: (1) license, (2) solemnization, & (3) subsequent filing.
(1) License (72 hours but time can be waived for good & sufficient cause; county clerk)
(2) Solemnization (judicial officer or clery, 2 witnesses)
(3) Subsequent Filing (county clerk who issued)
Is common law marriage still recognized in Michigan?
Generally, Michigan does not recognize common law marriage.
Exceptions: (1) common law marriages entered into before Jan. 1, 1957 or (2) common law marriages legally consummated in another state
Defined: (1) consent of the parties (i.e., capacity), (2) cohabitation, and (3) holding out to the public that living together as married.
What is annulment?
Def: declaration that the marriage is invalid due to an impediment that prevented the marriage from occurring
Grounds for annulment: void marriage or voidable marriage.
- *Void Marriage **
- bigamy/polygamy
- consanguinity
- affinity
- insanity
- nonage (under 16)
- fraud
- duress
- *Voidable Marriage**
- influence of druges or alcohol
- nonage (16 to 18)
What are the defenses to annulment?
Void Marriage: no defect existed Voidable Marriage: ratification
How does one handle a division of property in divorce proceedings?
- *Address…**
- *(1) Whether to grant a divorce.**
- Is there jurisdiction?
- Mention marriage is “irretrievably broken.” / No-Fault Divorce.
- *(2) How to divide property.**
- premarital property
- Generally to party who owned prior
- Exception: value increased by active nonowner spouse
- Exception: support is otherwise insufficient for nonowner spouse
-marital property (“a fair and equitable division”)
- Duration
- Contribution
- Age
- Health
- Life Status
- Necessities and circumstances
- Earning ability
- *Past relations and conduct of the parties*
- General principles of equity
- Other considerations:
- pensions
- workers’ comp
- professional degrees (value of srvcs. provided, ~value of degree)
- inheritance
(3) Mention that after divorce decree, division is not modifiable absent fraud.
What is the amount of child support a noncustodial parent must pay determined?
Michigan has statutory child support guidelines.
- Creates a presumption that a recommended amount is appropriate.
- Court can deviate from Guidelines where applying the formula is unjust or inappropriate, but must state reason on record.
- Modification: sole ground is change in circumstances.
- Factors:
- Parental income
- Family size
- Age of children to whom support is for
- Childcare costs
- Healthcare costs
*Note: This is an independent consideration of visitation/parenting time.
Illustrate the defense of impossibility in a criminal proceeding against defendant for failing to pay child support.
Elements
- ∆ acted in good faith,
- ∆ made all reasonable efforts to comply with the support order, and
- ∆ was unable to comply through no fault of his own.
∆ is only established by showing: ∆ explored & eliminated all reasonably possible avenues of obtaining the money required to comply
Must present prima facie evidence from which the factfinder could conclude genuine impossibility.
Factors include:
- Whether ∆ diligently sought employment.
- Whether ∆ can secure additional employment, such as a second job.
- Whether ∆ has investments that can be liquidated, a home that can be refinanced, or property that can be sold or used as collateral to obtain money.
- Whether ∆ has received substantial gifts or an inheritance.
- Whether ∆ prioritized the payment of child support over the purchase of nonessential items.
- Whether ∆ has taken reasonable precautions to guard against financial misfortune and has arranged his financial affairs with future contingencies in mind.
If threshold showing is made, a jury instruction must be given on the ∆ of impossibility.
Standard: PPE
When can a court exercise jurisdiction over a child custody dispute.
General Rule– A court can exercise jurisdiction if the state is the (1) child’s home state or (2) was the child’s home state within the past 6 months, the child is now absent therefrom, but a parent contines to live there.
- Home State, defined–state in which the child lived with a paretn for at least six consecutive months immediately before the proceeding
If no other state has or accepts home state jurisdiction, a state can exercise jurisdiction if:
- Child and at least 1 parent have a significant connection with the state, and
- Substantial evidence concerning the child is available in the state.
*Note–Emergency Jurisdiction: A state can exercise jurisdiction if (1) the child is physically present and (2) has been abandoned, neglected, or subjected to or threatened with abuse. (temporary!)
What is the best interests of the child standard as to addressing child custody orders?
Say:“Best interests of the child governs.”
Then: Address only those factors, infra, that are implicated by the facts.
- Love, affection, and other emotional ties existing between parties involved and child.
- Capacity of the parties involved to give the child love, affection, and guidance, and to continue the education and raising the child in his or her religion or creed, if any.
- Capacity and disposition of the parties involved to provide the child with food, clothing, and medical care.
- Length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- Permanence, as a family unit, of the existing or proposed custodial home
- Moral fitness of the parties involved
- Mental & physical health of the parties involved
- Home, school, and community record of the child
- Reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- 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.
- Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- Any other factor considered by the court to be relevant to a particular custody dispute.
What are the grounds and requisite burdens for modifying a child custody order?
1. Introduction
Modification is always in the best interests of the child.
Goal is stability; so must be an egregious change.
2. Grounds for Modification
Movant has burden to show (1) either proper cause or (2) change of circumstances exists by a PPE.
Burden of proof depends on whether there is an established custodial environment (either PPE or CCE).
- *3. Established Custodial Environment**
- *Defined**–Custodial environment is established if, over an appreciable time, the child naturally looks to the guardian in that environment for guidance, discipline, the necessities of life and parental comfort
Factors to be Considered
- Age of child
- Physical environment (permanencey of presence i.e., traveling a lot?)
- Inclination of the custodian and the child as to the permanency of the relationship
Application
- If no established custodial environment exists, Movant has PPE burden to show the change in custody is in the best interest of the child using best interest criteria.
- If established custodial environment does exist, Movant has CCE burden to show that the change in custody is in the best interest of the child.
What is the analysis for spousal support?
Purpose: Ensure adequate income stream for economically dependent party.
Types
- Permanent
- Lump Sum
- Rehabilitative (i.e., particular purpose like going to school)
Factors to Determine Amount
- What is just and reasonable under the circumstances of the case?
- Past relations & conduct
- Length of marriage
- Ability of parties to work
- Source of and amount of property awarded to the parties
- Age
- Ability of the parties to pay spouse support
- Present situation
- Needs
- Health
- Prior standard of living of & whether either is responsible for the support of others
- General principles of equity
Modification of Spousal Support
Generally, modifiable upon showing a change in circumstances.
*Note: Judgment can provide that it’s not modifiable (usually absent fraud)
Termination of Spousal Support
- Date
- # of Years
- Age
- Event
