Generally, mediators are selected by agreement of the parties upon the advice of their attorneys.  This usually occurs at the pre-trial conference.  Those who serve as mediators are themselves experienced family law attorneys, who have earned the respect of their peers for their ability to fairly settle disputed cases.  Mediators are neutral and have no authority to force any terms upon the parties; i.e., mediation is not binding unless the parties enter into a settlement agreement in writing or by taped record.  Mediators bring their knowledge of the law and of the assigned judge to the table and assist both sides in finding the common ground that promotes settlement of the disputed issues.  They have no vested interest in the outcome of the case other than achieving a settlement.

Preparation of the case through the various discovery methods: interrogatories (written questions about income, assets and liabilities), requests to admit, subpoenaed information and depositions prior to mediation is important.  By doing your “homework” and having all relevant information at hand, a party will be armed with the facts necessary to adequately make an informed decision regarding settlement of the case.

Once a date for mediation has been established, each party presents their summary of the case to the mediator ahead of time so that the mediator knows in advance what the issues are.  The mediation sessions (there may be more than one) are informal and are not adversarial like a trial.   Anything told by a party to a mediator is confidential and cannot be disclosed at a later trial if the mediation is not successful.  Some mediators “shuttle” between the parties, who are separated, until a settlement is reached or a stalemate occurs.  Others conduct sessions with everyone seated together.  No matter how conducted, the goal is always the same: to settle the case and let everyone get on with their lives.

Attorney fees may be awarded on a temporary basis when it can be shown that the requesting party cannot maintain the divorce or other family law action without the assistance of the other party (financial need which is based on lack of income, insufficient income or a great disparity between the parties’ incomes) and the ability of the other party to pay.   A motion must be filed and there must be a hearing before the judge.

Additional attorney fees may also be awarded under the judgment of divorce on the basis of financial need.  The award is within the court’s discretion.  The underlying rationale for a final award of attorney fees is that a person should not have to consume their assets to pay attorney fees when those same assets are being relied upon to provide for support for that person.

If there are sufficient liquid assets in the marital estate, each party can draw on those funds to pay attorney fees while the case is pending, even if those funds are solely from the employed spouse’s income, because income is a marital asset.

The Michigan court rules provide:

(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.

(2) A party who requests attorney fees and expenses must allege facts sufficient to show that

(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or

(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply. MCR 3.206(C).

The court rule also provides for payment of attorney fees when the other party can be shown to have wilfully violated a court order while having the ability to comply with the order.  An example would be refusal to pay court ordered support or some other obligation.

In other words, reliance on old facts will not support or help a request to change an existing child custody or parenting time agreement. Therefore, if a mother agreed to joint legal and physical custody, she cannot rely on the previously known facts to seek a custody modification if the children have not been harmed and are not in danger of immediate harm. This is because the first threshold to cross in such matters is the existence and proof of “proper cause” or a “change of circumstances.”

An attempt to change or limit parenting time will fail if you have left the child in the father’s care while ignoring the problem on which you now rely. For example, a claim is made that the father should have supervised parenting time because he engages in a certain type of unacceptable behavior. However, the mother has used the father for childcare and has gone along with the parenting time schedule without taking action to limit his access to the child. To now say that father is a danger to the child’s health, safety and welfare would be contradicted by mother’s past behavior. It would therefore have little or no bearing on the court’s discretion as to whether to modify the existing arrangements.

The time to address known parental defects is before agreeing to custodial and parenting time arrangements, not after. The burden of proof is not as high as when change is sought and when there is probably no established custodial environment with either parent.

By immediately taking charge of your situation and meeting with one a family law attorney, you will acquire an understanding of your legal rights in the divorce situation and receive help to determine how to properly respond in the case and be an active participant who determines the outcome, not your spouse or his attorney. Each person’s situation is unique and has to be addressed according to the particular needs that are presented. Inaction will only cause problems.

If you’ve been served with a complaint for divorce, make sure you get the representation you deserve. Our family law and divorce attorneys are here to help you. Call and speak with one of our Michigan divorce attorneys.

Seven Questions to Ask Before Filing for Divorce

1. Has my marriage broken down to the point that it cannot be saved?
2. If I divorce my husband, do I have a realistic plan for myself so that I will be in a position to provide for my needs and those of my children?
3. Will my family and friends support me in this decision?
4. How will my life improve after I am divorced?
5. Is there enough income and property to allow me to maintain a similar or even better lifestyle as one household becomes two?
6. How easily do I adapt to change?
7. Do I have good knowledge of our financial affairs?

These questions should not be asked, however, until you have been educated as to your rights and the remedies available to you in a divorce situation. Then, you can answer these questions understanding what will be available to you by way of support and property settlement. A consultation with one of our divorce attorneys will fill this need.

If you’ve made the decision to file for divorce, start by being an advocate for yourself.  Our family law and divorce attorneys are here to help you.  Attend one of our free educational seminars or call and speak with one of our divorce lawyers.

Many attorneys, who have no concentration in family law, will accept any case that walks in the door because it helps pay the bills. Most of them think that divorces and other family law cases can be easily handled within a short time frame. This type of attitude often leads to disastrous results. Most times, it’s too late to correct the mistakes that led to a poor outcome but the client must suffer the consequences. You can set yourself up for a positive result by being proactive: interview the attorney and find out if you feel comfortable with their background in family law and the way they present to you. A reference from a friend is only a beginning, you have to do the rest.

If you’ve contemplating divorce, start by being an advocate for yourself. Our family law and divorce attorneys are here to help you. Attend one of our free educational seminars or call and speak with one of our divorce lawyers.

Separate Maintenance is appropriate in situations where the parties want to try and live separately while they work on saving their marriage or try to figure out if they even want to reconcile their relationship. Often, this is done where one party will be spending time away from their spouse trying to change or improve their life, such as when they are in inpatient rehabilitation for drug or alcohol problems or incarcerated for a felony conviction. The most common situation for utilizing separate maintenance is with elderly, sick, or unemployed spouses with a pre-existing condition, who cannot afford to lose their health insurance and need to stay on the employed spouses’ health care plan. In certain situations, it may also be beneficial to a party who is contributing most of the financial support for the family, to file taxes jointly, which can be done under a separate maintenance, but not once you are divorced. Often there are religious reasons why people choose separate maintenance as it will bring peace to their lives and an end to the marital turmoil without actually getting divorced.

If you’ve contemplating legal separation or divorce, start by being an advocate for yourself. Our family law and divorce attorneys are here to help you. Attend one of our free educational seminars or call and speak with one of our divorce lawyers.