Saturday, March 20, 2010

Michigan Legal Separation

If they lived in Michigan an option for Jesse James , Sandra Bullock would be legal Separation

Flint Divorce Lawyer Terry Bankert shares his thoughts On Legal Separation.

A Married Couple in Flint and through out Michigan may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons. Some times it allows for a cooling off period while protecting both parties. As a Flint Divorce Attorney my observation is that a separate maintenance may in some Flint Divorce cases may have saved the marriage.
On March 7, Sandra Bullock and Jesse James walked the red carpet arm in arm before Bullock accepted the Best Actress Oscar at the ceremony for her work in "The Blind Side." That next week, she reportedly moved out of the couple's home. [1] If they were residents of Michigan several options would be available. Legal Separation would be one.
Separate Maintenance

Married persons may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons. Separate maintenance may allow both parties to have continued health care coverage, but some employers and heath insurance providers treat an action for separate maintenance as a triggering event disqualifying a nonemployee spouse from continued health insurance coverage. This is not uniformly applied by either employers or health insurance providers.

How do you get a separate maintenance? It is filed in the same manner and on the same grounds as a divorce MCL 552.7. First the plaintiff or the defendant must have resided in the state for at least 180 days and in the county of filing for at least 10 days immediately preceding the filing of the complaint MCL 552.7(1), 9(1).

This criteria must be met. Both of these residency requirements are jurisdictional and must be met on the date of filing. If the requirements are not met, the action may be dismissed or the judgment set aside. Lewis v Lewis, 153 Mich App164, 395 NW2d 44 (1986) (circuit court lacks jurisdiction in separate maintenance action if neither party met residency requirement before filing).

ARE YOU DIVORCED? When the matter is concluded, the parties are still technically married, but the marital property may be divided, MCL 552.19, and the court may order support for a spouse who requires it MCL 552.23 (1).A Separate Maintenance action will result in a divorce judgment if the defendant files a counterclaim for divorce and the statutory grounds are established MCL 552.7 (4) (b).

Questions? Contact information below.

Posted here by
Terry Bankert
Flint Michigan Divorce Lawyer


Link to this article

Friday, March 19, 2010


A Flint Divorce Attorney shares his thought on a high profile infidelity. What do you think?


It is an unfortunate reality of some marital break ups, one spouse has an affair. We see that in the tabloids where an actress we all respect has had that happen to her.

Marriages have their ups and downs.

Each of the parties should follow their hearts and do what is best for the children and themselves.

Putting the children first is a life test for parents.

Think of the confusion and hurt of the children.

Think of the pressure on the parents. Its public and high profile. So what! The parents must privatize this as quickly as possible.

Their children will measure them by how they see their parents handle this.

It will affect the children forever.

Does it really matter that the husband sought out a stripper. in Michgian when evaluating a parents fitness for child custody or parenting time in a Flint Divorce Court what is called a Best interest factor is used (f) The moral fitness of the parties involved.

The position of Jesse James if her were in Michigan is weakened because the concept of fault can be factored into a custody decision even given Michigan’s no-fault divorce statute. Feldman v Feldman, 55 Mich App 147, 222 NW2d 2 (1974); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973).

Factor “f” evaluates the parties’ relative moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult. Fletcher v Fletcher, 447 Mich 871, 526 NW2d 889 (1994) (error in finding that this factor favored plaintiff; there was no evidence that defendant’s extramarital affairs had any adverse effect on her ability to raise children).


Although an extramarital affair is not necessarily a reliable indicator of the party’s parenting ability, in Berger v Berger, 277 Mich App 700, 747 NW2d 336 (2008), the court found that the unique nature of defendant’s affair, i.e., seducing the children’s nanny, plaintiff’s cousin, in the marital home, demonstrated extraordinarily poor judgment and lack of insight about the impact his conduct could have on everyone in the household, including, ultimately, the children.
Maybe the selection of a stripper means he never wanted a relationship. But it still hurts those he loved the most.

We can watch this saga and wonder how will a divorce court react to this drama?
In Flint Family Law Court in Michigan a “no fault” divorce state; the words “no fault” can be misleading. If the parties reach a final settlement on all issues, fault is not a factor. If there is a dispute about property, child or spousal support, parenting time, or custody, fault may become an active ingredient in resolving these issues.
“The ballad of Jesse James seems headed for a showdown, as family fallout continues amid infidelity allegations aimed at Oscar-winner Sandra Bullock's husband of five years.[3]


A San Diego-based tattoo model, McGee claimed to have had a months-long affair with Jesse James, the husband of recent Oscar-winner Sandra Bullock. [1]


“Talk about humiliation. Bullock, 45, spent the entire awards season effusively thanking her husband for having her back and making her a better actress. Just 10 days ago, she acknowledged him again on the Oscar stage and when the camera panned to the star of the cancelled Monster Garage TV series, there was a touching tear sliding down his cheek. “[2]

Michigan is a no-fault divorce state, here fault is a consideration in property awards, as it is with child custody. However, fault may not be used as a punitive basis for an inequitable division. McDougal v McDougal, 451 Mich 80, 545 NW2d 357 (1996).

Posted here by
Terry Bankert
A Flint Divorce Lawyer.

Wednesday, March 17, 2010


My name is Terry R. Bankert

I am a Flint Divorce Attorney. In a recent Michigan Court Of Appeals unpublished decision several issues were discussed. This unpublished opinion was released 3/9/2010. It involved a Lapeer County Divorce Case 95-021724. As a Flint Divorce Lawyer this is the law we rely on in Flint Family Court and in State Wide Divorce actions. To find your courts state wide see, .

The opinion stated in part the following.

Father protested to the higher court the Lapeer family Court trial court’s order changing a prior custody order under which the parties had week on/week off parenting time with their son, to permit

The child to attend Cranbrook School as a boarding student. The trial court did not change the
parties’ joint legal custody. The Michigan Court said the Lapeer Court was right.
Did you know that in a Divorce case action post judgement before the trial court can change a child’s custody, an evidentiary hearing must be conducted. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).

A Family Law Court before changing child custody is required prerequisite to the evidentiary hearing, the trial court must determine that there is “proper cause” or there has been a “change of circumstances.” Vodvarka v Grasmeyer, 259 Mich App 499, 508-514; 675 NW2d 847 (2003).
Did you know that changing a child’s established custodial environment requires the trial court to consider the twelve “best interest factors” under MCL 722.23 and find “clear and convincing evidence that [the change] is in the best interest of the child.” Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001).

Did you know that a Flint Family law Court as this Lapeer County Court must “evaluate each of the factors contained in the Child Custody Act, MCL 722.23 . . . and state a conclusion on each, thereby determining the best interests of the child.” Thompson, supra at 363 (citations omitted); see also Foskett, supra at 9.
When a parent wants to change custody there are hurdles. The purpose of these hurdles is to “to minimize unwarranted and disruptive changes of custody orders,” except under the most compelling circumstances. Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594; 532 NW2d 205 (1995); see also Foskett, supra at 6.


In this case fathers argument is simply that (1) the parties’ son’s wishes are the only
reason for changing the parties’ custody;1 and (2) the law is that a child’s wishes, standing alone,
cannot constitute proper cause, changed circumstances, or the reason for changing custody.

The Court of Appeals indicated that it is up to the local Family law Court to decide how much weight to give a childs stated preferences.

Did you know that Parents who have joint legal custody of a child must agree upon important decisions that affect the child’s welfare. Bowers v VanderMeulen-Bowers, 278 Mich App 287, 295-296; 750 NW2d 597 (2008).

One of those important decisions is the child’s placement in a particular
school. “If [the parents] are unable to agree, the trial court must resolve the dispute
according to [the child’s] best interest.” The parties here could not agree which school
the child would attend, so the trial court was not merely permitted to resolve that dispute, it was
required to resolve that dispute.

The parties’ undisputed inability to agree on the childs high
school “could have a significant effect on the child’s life to the extent that a reevaluation of the
child's custodial situation should be undertaken,” and thus constitutes “proper cause” to revisit a
custody order. See Vodvarka, supra at 854.

Posted here by
Terry Bankert