Divorce FAQ | Frequently Asked Questions

Howell Divorce Attorney

Divorce and child custody issues can be scary, frustrating and leave you with many questions. In order to alleviate some of your stress and provide you with as much information as possible, we have answered several commonly asked questions below. If you have any further questions, please contact us here or call one of our convenient locations at 517.349.8259 in Lansing or 517.548.6767 in Howell.

  1. Should I leave the house? Or should I stay?
  2. If I leave my house, do I give up rights to the home and my children?
  3. What is a PPO?
  4. When is a PPO warranted?
  5. If served with a PPO, what should I do?
  6. I'm going to inherit 50k from my parents soon, is it marital property?
  7. Am I going to be able to keep my pension?
  8. How does property get divided?
  9. Do I get to keep personal property that relatives gave me before the marriage?
  10. Should I take all the money out of joint accounts prior to filing?
  11. I've had an affair and my spouse found out. Will I lose the right to parent or see my children? Will I lose my share of the property?
  12. What does 'no fault divorce' mean?
  13. Is there an advantage to filing for divorce before my spouse does?
  14. Once I'm separated or have filed for divorce, can I date?
  15. Am I responsible for debts my spouse has caused? How about my spouse's debts incurred after we separate?

1. Should I leave the house? Or should I stay?

In general, if you or your children are in fear of your safety- or the atmosphere in the home has become such that neither party can tolerate the other's presence, and or the children are being negatively affected because of your behavior towards one another, it's best to leave. However, if the parties can conduct themselves with a reasonable degree of decorum, either for each other's sake or for the children's, there are benefits to remaining in the marital home and preserving the marital assets as much as possible. If you're living apart, there will be costs of living for two residences. Try to avoid these costs if possible.

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2. If I leave my house, do I give up rights to the home and my children?

The short answer is no. However, if you leave, it might be more difficult for you to later be awarded the home in any eventual property settlement. You would still be entitled to a share of the value of the home, but possibly not the home itself. Also, if you leave the home and the children remain, it could affect your rights later on in any dispute over custody.

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3. What is a PPO?

A PPO is a Personal Protection Order which, when served on an offending party, orders such person to cease contact with the protected party in a variety of ways and circumstances.

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4. When is a PPO warranted?

If the person seeking protection by the order has been assaulted or battered, has a reasonable belief that the offending party will try to harm them or has harmed them in the past and is likely to do so again. Also a PPO is warranted if the offending party has physically or mentally harmed the children, harasses you at your work, or stalks or follows you with the intent to harass or harm you.

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5. If served with a PPO, what should I do?

After you receive the document, review each and every line and paragraph that describes behavior that is prohibited, and obey the Order to the letter. Review the allegations contained Plaintiffs affidavit. The allegations may be false, misleading, self serving or inaccurate. If so, and the allegations do not support the issuance of a PPO, you have 14 days after receiving the PPO to file a written objection to the order and request a hearing.

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6. I'm going to inherit 50k from my parents soon, is it marital property?

Generally no, but under certain circumstances, inheritances can be considered marital property. If the money from an inheritance is commingled with marital assets such as real property, joint ownership in vehicles etc., and depending on how much time has passed since the inheritance, the inheritance to the extent of commingling may become a joint asset. Inheritances that are not commingled are more easily identified and qualified as separate property.

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7. Am I going to be able to keep my pension?

The short answer is that pensions earned during the marriage are considered marital property, but there are exceptions.

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8. How does property get divided?

In general, all property parties have accumulated or purchased during the marriage are marital assets, whether it be in the form of businesses, real property or personal property. The Court will attempt to divide the property equitably, (note that this is different from "equally") with the purpose of giving each party an equitable share of the property or its value.

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9. Do I get to keep personal property that relatives gave me before the marriage?

Generally, yes.

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10. Should I take all the money out of joint accounts prior to filing?

Our office advises that the client is entitled to 50% of the cash and or savings accounts. If the parties are clearly at odds and the divorce is not going to be amicable, or the other party has controlled the other client by the check book, we might advise removing 50% of the funds and opening a separate account. However, such advice is given with extreme caution and only after we have a complete understanding of the financial circumstances of the parties. For example, we would not advise removal of funds from a particular account if it causes that account to be overdrawn. Also, just because funds may be removed and placed in a separate account, that does not relieve the party from paying bills funded by the original account. The best rule is that any removal of funds should only be done in consultation with an attorney.

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11. I've had an affair and my spouse found out. Will I lose the right to parent or see my children? Will I lose my share of the property?

Generally, you will not lose the right to see or parent your children. However, if the children were exposed to the affair or have been adversely affected by the affair, this factor can weigh against you when assessing the moral fitness of the parties to be parents. Morality is one of 11 factors considered by the Friend of the Court, when evaluating the best interests of the child for custody. Also, you will not lose entitlement to property; however, the courts are empowered to assess fault in determining the amount or percentage of property that you receive. Different courts place different weight on just how much, if any, they will reduce a party's share on the basis of fault.

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12. What does 'no fault divorce' mean?

Simply stated, it means that you do not have to plead fault in the other party to file for divorce. Nor can the other party prevent the divorce by pleading that they weren't at fault for the breakup of the marriage. You don't have to state any reason at all except, " that there has been a breakdown of the marital relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved".

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13. Is there an advantage to filing for divorce before my spouse does?

At one time, when it would become obvious to both parties that a divorce was inevitable, sometimes a race to the courthouse would give one party an advantage if they could get a Judge to sign an ex-parte Order for custody etc. before the other party had a chance to answer the complaint, hire an attorney or defend the allegations listed in the complaint. Ex parte meant the judge could order relief to the motioning party without the other party being present. Judges rarely do this anymore unless an emergency Order is required to protect children or assets. So, for the most part, there is no advantage.

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14. Once I'm separated or have filed for divorce, can I date?

Yes, as long as the minor children are not exposed to overnight guests. or in the event of a new relationship being formed, the children are not subjected to all the potential psychological risks that introducing a new partner may have on them. Always place the best interests of your children first. If there are no children to consider, once separated, you are free to date whomever you wish.

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15. Am I responsible for debts my spouse has caused? How about my spouse's debts that he/she incurs after we separate?

Yes, as a general rule you are responsible for ½ of the marital debt. However, if the other party incurs debts after the separation, they are generally responsible for that debt. However, if the debt is incurred using a jointly held credit card or a joint line of credit, the creditor is entitled to still look to either party to pay the debt.

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For more information about the attorneys at Silverthorn, Hutchcroft  & Associates, serving greater Lansing and Howell, or to schedule your free phone consultation, contact us today or call one of our convenient locations at 517.349.8259 in Lansing or 517.548.6767 in Howell.

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