Appeals

Is it more cost-effective to use my trial attorney for my appeal?

Trial attorneys have personally experienced the trial/hearings that led to the appeal and, as a result, will be able to review the transcripts and “record” faster. As most family law appellate and trial level attorneys work on an hourly basis, saving that time is saving money.

If your trial attorney has experience practicing appellate law, if they keep up with the frequent changes in our family laws, if they have the ability/time to devote to the appeal, and if they were successful in convincing the trial court judge to rule in your favor, then it is absolutely more cost-effective to use your trial attorney than to retain a separate attorney.

However, if your trial attorney does not have appellate experience, that savings will disappear rather quickly. This is because the practice of appellate law requires more written analysis and research than trial level work. So if your trial level attorney doesn’t have appellate experience—or if their experience is long ago—then it will likely take them a lot longer to prepare the legal briefs/arguments that are the most important part (and most time consuming) part of any appeal.

Aside from the question of billable hours that it takes to complete the case, there is the cost of an appeal being unsuccessful. When deciding whether to retain separate appellate counsel, you should consider (1) whether your trial attorney had effectively and persuasively presented your case at the trial level, and (2) whether your trial attorney can remain objective in assessing the legal strengths and weaknesses of your case on appeal.

Due to the highly emotional and intimate nature of family law matters, it is easy for a trial level attorney to lose objectivity in a family law case. Sometimes a trial attorney will be personally offended if they lost at trial despite doing their best. It can be hard when you’re on the inside to evaluate whether the desire to appeal is driven by pride versus being driven by what’s just and right. It can be hard to tell if your trial level attorney is correct, or if what they are saying sounds correct because it’s what you want to hear.

We are happy to meet with you and your trial counsel to evaluate the strengths and weaknesses of your potential appeal, and to help you decide whether it makes sense to have your trial counsel represent you on appeal, to have us represent you on appeal, or to have a joint retention where we work together to minimize the cost while maximizing the outcome.

If the trial judge ruled against me, what are my chances of success on appeal?

If you had a valid legal claim, if you had evidence to support that claim, if you presented that evidence appropriately in court, if the other side did not present persuasive counter-evidence, if you closely followed all procedural requirements, if you appropriately raised your legal claim during the proceedings, and if the court ruled still ruled against you, then you have a good chance of success on appeal.

These are, of course, very general statements. Whether you will be successful on appeal is a very case-specific inquiry. We encourage anyone who feels that they have received an unjust ruling to schedule a consultation with an attorney who practices in the appellate courts. During that consultation, the appellate attorney will review court filings and discuss what happened at the trial level to gauge the strengths and weaknesses of your potential appeal.

Legal Representation

How do I know my attorney can handle my case?

Any attorney can take on a new client. But whether an attorney can competently and effectively handle your case comes down to four things: time, cost, experience, and comfort.

First, if an attorney has more cases than they can handle, they are probably not going to be able to give your case the attention it needs. We space out when we accept new clients, and we have limits on the number and type of cases we take at any given time. This is to ensure that we can give adequate attention to every client’s needs. But not all attorneys can do this.

It is not easy to tell whether the attorney you are thinking about hiring is too busy to attend to your needs. The amount of time it takes to get in for a consultation is not a reliable indicator of whether the attorney is swamped or the attorney just has good time-management practices that requires spacing out new clientele. The most reliable indicator of whether the attorney has time for your case is how you are treated during the consultation. Does the attorney seem rushed? Do they seem like they are unable to focus on what you are telling them? Is the consultation cut short even when you have more to talk about? All these things can be indicators of whether the attorney is able to devote attention to your needs.

Second, if you cannot afford to pay legal fees then the attorney-client relationship can easily turn into a creditor-payee relationship. It is very difficult to maintain the attorney-client relationship in divorce and support matters—where the attorney’s advice affects your finances—when the attorney has to spend time discussing billing matters. It is difficult for the attorney, who would rather be practicing law than talking about their fees. It is difficult for the client, who might feel that the attorney’s interest in getting paid is affecting their advice. We encourage everyone to have a frank discussion about expected fees during the consultation. While family law matters are very unpredictable, every attorney should be able to give a loose range of the total cost of the case if it were uncontested versus contested.

Third, if an attorney does not know how to handle your case they should not take it. The consequence of inexperience is not simply the potential mishandling of your case. Without the benefit of practical experience, the actual practice of law takes longer. The expected savings of hiring a newer lawyer at a lower hourly rate disappears if they take twice as long to complete tasks as an attorney who has done them a hundred times.

Finally, you must be comfortable with the attorney you hire. This is especially important in family law matters which require a significant amount of practical guidance in addition to legal analysis. Because sometimes personalities conflict. The smartest most capable attorney cannot help a client who doesn’t want to talk to them or who can’t truly open up.

How long does it take to get a divorce?

Michigan law sets minimum time periods for divorces. The shortest amount of time for a divorce without any minor children involved is just sixty days from the date of filing. For a traditional divorce with children, there is a six-month waiting period from the date of filing. This is known as the “cooling off” period. However, in uncontested joint divorces with children, the six-month waiting period is often waived by the court and reduced to sixty days.

Keep in mind that these are minimum time periods. The typical divorce process takes longer than the minimums. You might ask – if there’s a minimum, is there a maximum? No. While there are internal-court reporting guidelines which encourage courts to complete divorces within twelve months of filing, and while some judges take that guideline more seriously than others, there is no maximum time period for a divorce action.

Essentially, the more complicated the case—or the higher the conflict—the longer it takes. People who try to hide things end up with the longest (and most expensive) divorces.

Can my spouse and I hire the same attorney?

It depends on why you are hiring the attorney. If you and your spouse are jointly hiring an attorney-mediator to mediate discussions between you, then yes you can jointly retain the mediator. But if you are hiring an attorney to give advice about your rights, responsibilities, what’s your best outcome, etc. or if you are hiring an attorney to represent you in court or prepare legal documents for you, then no. If you and your spouse want representation, advocacy, or advice, then you cannot have the same lawyer.

That said, two attorneys are not required in every case. We have been retained many times in cases where our client and their spouse are relatively on the same page about the desired outcome of the divorce. In those situations, we work with our client to prepare a comprehensive proposed Judgment of Divorce then we issue it to the other side for review and consideration. Since most cases do not involve complex legal issues, and since we make transparency a top priority in all we do, the other side often will negotiate directly with us to discuss changes and finalize the settlement.

What is the Friend of the Court?

The Friend of the Court (“FOC”) is a part of the family division of the court. It is meant to help the court with cases involving custody, parenting time, and support. Depending on the needs of the court system in your county, the duties of the FOC in your county might be different than the FOC in another county.

However, most FOC systems provide the following core services:
1) Collection and disbursement of child support;
2) Enforcement of child support orders;
3) Custody and parenting time evaluation/investigation services;
4) Mediation services; and
5) Custody and parenting time enforcement services.

Some services are mainly administrative, but many services are pseudo-judicial. More specifically, the FOC employs attorneys to serve as “referees.” Referees hold hearings and issue recommendations and recommended court orders. These hearings are generally just like hearings held in front of a judge and recommended orders issued by referees can have the same binding effect of a court order issued by a judge. However, the actions and recommendations of a Referee in a case are reviewable by the Judge assigned to the case if an objection is timely and appropriately filed.

In my opinion, there are two big mistakes people make when interacting with the Friend of the Court. The first is failure to recognize the key part that the FOC plays in the family law litigation process. I’ve seen many instances where people haphazardly ignore letters from the FOC only to be surprised to receive a court order in the mail based upon the best guesses of the other party (the one who took the time to fully respond).

The second biggest mistake is treating the Referee like they’re just some other attorney rather than a decision-maker. I’ve seen parties (and sometimes attorneys) act like a Referee hearing is just another meeting rather than a formal court proceeding. The danger in doing so is that there is no guaranteed second chance to present your case if you don’t like the outcome of the referee hearing. Failing to prepare for these hearings—or not presenting a fully developed argument and evidence at these hearings—can result in a party being stuck with a negative recommended court order that could have been avoided if they realized how important their Referee hearing really was.

The Friend of the Court asked for my income information. Do I need to give that?

The Friend of the Court is very busy with active cases and has no interest in rocking the boat for no reason. If you received an income information questionnaire or investigation packet from the Friend of the Court, it is likely that either (1) the other party has filed a motion requesting the recalculation of support, (2) it has been 36 months since the last support order or last review, or (3) they have otherwise received some notice that a change in child support is warranted.

That said, the Friend of the Court does not have unlimited power to reopen support cases. There are some restrictions on their ability to investigate a person’s income. If you have a concern about whether a support investigation is warranted in your case, you should reach out to a family law attorney in your area for a consultation to review the orders in your case and support-related circumstances to determine whether an objection to the information request is warranted.

Will my spouse receive my retirement funds that I earned prior to our marriage?

If parties come to an agreement to divide pre-marital assets, such as retirement funds, then the court will not disrupt that agreement when entering the Judgment of Divorce. If parties are not in agreement, and if the case proceeds to a trial, the judge will decide what division of assets is fair.

While the general rule of thumb is that pre-marital assets are not to be divided, there are a number of exceptions to that rule. A lot depends on whether the party who holds the pre-marital assets took steps to keep the asset separate from marital assets, and whether the other party would be impoverished if the pre-marital assets weren’t considered.

If you and your spouse cannot agree on whether or how to divide pre-marital retirement funds or other pre-marital assets, then a knowledgeable family law attorney should be involved to fully examine what is fair and reasonable in your case. If there are premarital interests or other complex property issues at stake, then it is important to keep in mind that failure to appropriately raise and preserve those issues could result in the waiver of claims if your case proceeds to a trial.

What if my spouse and I don’t agree about how to resolve certain issues?

Most marriages that end in divorce have some level of communication problems. It is rare for divorcing spouses to be able to communicate effectively on hard issues. Think back to the old “men are from Mars, women are from Venus” saying. Years of communication difficulties—of not speaking each other’s language—are not erased or suddenly cured when you start talking divorce.

Be that as it may, it is not uncommon that spouses might not be able to agree on how to resolve all their issues through direct negotiations. One of the benefits of hiring attorneys is that the attorney can bring an emotionally neutral perspective on asset, custody, and other discussions. The more experience an attorney has handling family law matters, the more likely it is that they will be able to effectively analyze issues and communicate your position (and, more importantly, the reason behind your position) to the other side.

That said, sometimes disagreements are unable to be resolved between attorney-advocates. In those cases, a neutral mediator will be able to facilitate discussions about difficult issues to help parties reach a compromise that is more attractive to each party than paying fees to litigate the issue.

If a compromise cannot be reached, then the issue will eventually be brought to a judge who will make the decision for you.

What is an uncontested divorce?

Technically speaking, a “contested divorce” is any divorce where the responding spouse files an Answer after they have been served with a Complaint for Divorce. However, in attorney-circles there are variations on “contested” and “uncontested.”

It reminds me of when a pregnant person is asked about “how pregnant” she is. Since you’re either pregnant or not, there is no “a little bit pregnant” or “very pregnant.” But we all know what they mean.

For example, once a Complaint is personally served in a traditional divorce action the other side has twenty-one days to file an Answer. If they don’t file an Answer, they can be found in default and their ability to contest things later can be compromised. In some cases, a couple might be in the middle of very productive resolution talks when that 21-day deadline comes. In that situation—no matter how committed they are to working through things—the responding spouse still needs to file an Answer to preserve their right to contest the issues later just in case the negotiations go south. To me, that’s not contested.

Another example of a divorce that I wouldn’t view as contested is where parties with children start the divorce action before they have really thought about the outcome. Parents sometimes do this to start-the-clock on the six-month mandatory waiting period in traditional divorces. In this situation there might be a number of procedural steps taken before negotiations can begin, but once each party is prepared the discussions run smoothly. To me, participating in the process so that you can get to the negotiation stage doesn’t mean that you are “contesting” anything.

How do we divide our property?

The first step in dividing property is identifying what property we’re talking about. This means identifying what property is in your name, your spouse’s name, your joint names, custodial children’s accounts, accounts with your parents, etc. This first step is not about who is getting what, it is about being sure nothing is forgotten. This is important because if an asset isn’t mentioned in the Judgment, then its later-discovery could lead to questions about ownership or, even worse, accusations of fraudulent concealment with a request to reopen matters.

After property is identified, the next step is to value and categorize everything as marital property, separate property, or a blend of the two. In most divorces, the valuation and categorization process is pretty straightforward. In complex matters, attorneys look to caselaw and other legal authority for guidance, and expert valuators may have to be retained.

Once everything is valued and categorized, then it is time for everyone to discuss who wants what. Surprisingly, most people do not argue about who gets what. The focus is usually on how much value each side is getting and what amount should be paid so that each side ends up with their fair share of the total value.

If the discussion ends in an agreement then that must be written out very specifically (ideally with an attorney helping), paying special attention to details. The importance of clarity cannot be overstated. Divorcing spouses are notorious for not understanding each other. Now is not the time for another argument about what each of you thought the other meant when they said what they said.

Once the property distribution plan is written out (either in an agreement or a court order) then, and only then, should people start moving items or making account changes.

What is custody?
What is the difference between legal and physical custody?

There are two types of child custody – legal and physical. Legal custody is defined as sharing decision-making authority for “important decisions affecting the welfare of the child.” There is no state-wide definition of what is or isn’t an “important” decision, but over time, certain topics have been identified as falling into that category, such as choice of religion, vaccinations, surgeries, psychological treatment, where your kids go to school, and the like.

Whether or not joint legal custody is appropriate or awarded depends on whether the parties are able to communicate about major issues. Judges tend to assume that parents in the middle of a divorce will not be able to effectively communicate during the divorce but that they will be able to work together after the divorce process itself is done. It takes a very high level of conflict, verbal abuse, or domestic violence to get a judge to not award joint legal custody. So most parents end up sharing legal custody.
The term “physical custody” is a term used to describe the parenting time or visitation schedule. There is no specific definition of “physical custody.” The term “joint physical custody” is understood as describing when a child spends “alternating time periods” with each parent. But there is really no guidance on how long each alternating period has to be before the custody situation stops being joint.

Generally speaking, if a child spends almost all their time with one parent then that parent is referred to as their primary (or sole) physical custodian. But I’ve seen court orders with the term “joint physical custody” describing a situation where one parent has the child with them all the time except for every other weekend. I’ve seen court orders with the term “sole physical custody” describing a schedule where the other parent has near-equal parenting time. For the most part there is no rhyme or reason to what term is used. And that’s okay because—except in unique situations—if there’s a dispute in the future over where the child is living the court pays attention to the actual schedule not the label used.

Who gets custody of the kids?

Back in olden times, when women weren’t allowed to own property or vote, men were almost always awarded custody because children were considered personal property. Husbands owned their children just like how they owned all the land and, essentially, owned their wives. As society progressed and women started working outside the home, a concept known as the “tender years doctrine” came into play. This doctrine granted custody of young children to mothers absent a showing that the mother was legally unfit. This encouraged women to stay put in their domestic roles.

In 1970, the Child Custody Act became law. This Act, which is still the law today, requires that courts consider a set of factors to determine a child’s best interests. Like all laws, it took a couple of decades for judges to shake the habit of automatically granting custody to moms and start looking at the unique circumstances of each family. Most kids of divorce in the 1980s were probably raised by their mothers with their dad exercising visitation every other weekend with some extra time thrown in for holidays, summers, and school breaks.

Now that the Child Custody Act has been around for over fifty years, courts are getting better and better at setting down their cookie-cutter parenting time plans and really looking at the makeup of the families who come before them. This is not to say all judges are following the intent of the law—if there were then there wouldn’t be a need for our appellate services—but most of them do make an effort to set aside their assumptions about gender roles.

So, who gets custody of the kids? We can’t answer that. But we can tell you that who is going to get custody of your kids will depend on who can take care of them and help them grow into stable, responsible adults. Whether that is one parent, two parents, a grandparent, or a blend of all three will depend on a lot of factors.

For more information about parenting time and custody in Michigan, we strongly suggest that you read through the Michigan Parenting Time Guideline.

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