Friday, October 31, 2014
Types of Cases Handled by the FOC


The Friend of the Court handles primarily four types of cases:  Divorce, Family Support, Paternity and Interstate Child Support.  The last three types are generally only handled by the Friend of the Court after the final judgment is entered.

     For information on annulment of a marriage, see Annulment of Marriage.

     For information on Separate Maintenance (also referred to as "Legal Separation") see Separate Maintenance.

Divorce Divorce Statute

A person wanting to end their marriage must have a Circuit Court enter a Judgment of Divorce ending the marriage. Before the court can grant a Judgment of Divorce, the Court must determine that there has been a breakdown in the marriage relationship to the extent that the parties will no longer live together as husband and wife. At least one of the parties (usually the Plaintiff) must appear in court to show that this breakdown really exists. In Michigan, divorce can be granted even when one of the marriage partners does not want the divorce.

A divorce ends the legal relationship between a husband and wife. The Judgment of Divorce divides property, debts and parenting rights and responsibilities. The divorce does not end the parents' relationship with the children, although that relationship will change.

Many decisions must be made before a divorce is finalized. Some of these decisions include:

          • Who will make major decisions (e.g. education, medical) regarding the children? (legal custody)
         • Will the children live primarily with one parent, or both parents? (physical custody).
         • What contact will child have with a parent they do not live with? (Parenting Time).
         • How should the property and debts gathered by the parties during the marriage be divided? (property settlement).
         • How will financial responsibilities for the children be divided? (child support and medical support)
         • What amount, if any, should one party contribute toward the support of the other, either permanently or temporarily? (spousal support/alimony).
         • How will the children’s medical, dental and other healthcare expenses be paid? (Healthcare Coverage)
         • Will the wife take back her maiden name? (restoration)
         • Will children be allowed to move from the State of Michigan? (domicile).
         • Will children be allowed to move more that 100 miles away? (legal residence). 

These decisions can be made several different ways:

     • The parties may reach an agreement by themselves, or by talking through their attorneys. (stipulation)
     • The parties may reach an agreement with the help of a trained mediator. Mediation  is made available by the FOC at private agencies to resolve the issues of custody and parenting time.
     • The Circuit Court Referee may hold a hearing on contested issues and make a recommendation to the Judge. (contested hearing)
     • The Judge may hold a pretrial or settlement conference where issues are decided.
     • If all issues are not resolved through one or more of these methods, the Judge will hold a hearing or trial on the issues that have not been resolved. 

Recommendations for child support and medical support will be made by the FOC for every pending divorce with minor children, even when the parents have reached agreement on these issues. The Court is not required to accept the agreements of the parties if these agreements do not meet the best interest of the children, and generally parents' agreements must follow the Michigan Child Support Formula in setting child support amounts.

Ex Parte Orders

An ex-parte order is an order issued by the court without a court hearing, based upon a party's affidavit that immediate relief is necessary to protect the parties, the children or the marital assets. Ex-parte orders are generally issued to preserve the existing financial situation, protect the assets of the marital estate and to protect the children. Some typical examples of ex-parte orders are as follows:
     • A party can be prohibited from encumbering, hiding or transferring marital assets.
     • Temporary custody of minor children can be awarded to one of the parents, where a serious situation is alleged that requires immediate attention.
     • A parent can be ordered to pay child support.
     • A party can be ordered to continue contributing to the maintenance of the marital home. 

Ex-parte orders become effective when they are entered with the Court and remain in effect if the Defendant does not file objections to the orders within fourteen (14) days from the date Defendant was served with the ex-parte order. If an objection is not filed within 14 days, the ex-parte order remains in effect until a new order or a judgment is entered.

Temporary Orders

After a Complaint for Divorce is filed, temporary custody, parenting time, child support and sometimes spousal support (alimony) may be ordered. Temporary orders are intended to stabilize home life for children and the parties while the divorce is pending.  Once an action has been started, either party, (or in rare cases, the FOC) may file a motion asking for temporary orders. If a hearing before the Referee or Judge is scheduled, both parties will be notified of the time and place of the hearing. 

At the hearing, each parent can tell the Court their opinion on that issue, and why they feel the Court should rule one way or another. Witnesses may be called and other evidence will be presented at the hearing.   After the hearing is complete, the Court issues a decision. Usually, one attorney is made responsible for preparing the written order setting forth the Court's decision and then that order is given to the Judge for entry (signing the Order). Only a Judge can enter orders or judgments. A referee can hold hearings, but can only make recommendations to the Judge as to what the Court should order. However, referee recommendations will become orders if no one objects to the recommendation within a specific time, usually 21 days.  Court orders must be in writing and signed by the Judge. The written orders entered by the Court in your case are laws that apply to you and your family. The orders can and will be enforced by the Court. If you ignore or disobey these orders there can likely be negative consequences for not following them, which may include fines, jail or other unpleasant consequences.

Reconciliation and Dismissals 

Not every divorce action ends with divorce. Sometimes parties work out their differences and want enforcement of their orders suspended. If so, they must to provide the FOC with written Notice of Reconciliation. A Notice of Reconciliation does not dismiss a divorce action or suspend a court order. It only suspends enforcement of a particular order for a specified time. 

If the parties decide not to complete the divorce, they must file an Order of Dismissal with the Circuit Court and provide a copy of this order to the FOC. This Order of Dismissal will stop the divorce action. If any child support arrearage is owed to the State of Michigan, the parties must make arrangements with the FOC to pay this arrearage; it is not canceled when the parents get back together.

Judgment of Divorce

A Judgment of Divorce completes the divorce action, although often matters arise after the judgment which may bring issues back to the Court. A Judgment of Divorce contains orders that deal with child support, parenting time, custody, property and other issues.  Before a Judgment of Divorce can be finalized, a waiting period has to be completed. In Michigan there is a sixty day mandatory waiting period from the date of filing a divorce action without minor children to the date the judgment can be entered, and the waiting period is usually six months if the parties have minor children together.   

When the waiting period is over, the Judge may grant a Judgment of Divorce. A Judgment of Divorce ends all temporary orders. If there is a temporary order in your case that you want to continue after the divorce is final, it must be included in writing within the Judgment of Divorce if it is to remain an enforceable order.  As indicated above, some provisions of the Judgment of Divorce may be changed in the months and years following a divorce. Once a judgment has been entered, parties must comply with its terms, or risk unpleasant consequences if they are found to have violated an order, including possible fines and jail. 

Family Support Actions  Family Support Act

There are two types of cases that are called “family support” cases. One type of case involves married parents who are separated but not divorced and the parent with the children in their care needs financial help from the absent parent. This type of case is called a Family Support Order, also known as an Order of Support. The other type of case involves unmarried parents where the biological father has signed a paternity acknowledgment called an “Acknowledgment of Parentage”. When a man signs an acknowledgment of paternity, he is declaring that he is the biological father of the child and agrees to be the “legal” father. 

The person starting the family support action is called the Plaintiff and the other parent is the Defendant. Generally, the mother is the Plaintiff, but not always. The Plaintiff must file a complaint asking the court to grant support. There is a filing fee for this action, although in many cases where public assistance is involved the Cass County Prosecuting Attorney files the action and there is no filing fee. If a divorce or separate maintenance case is already pending between the Plaintiff and the other parent, a family support case cannot be filed.

Many family support cases begin because two parents have separated and one parent has applied for some form of state assistance such as Temporary Assistance to Needy Families (TANF). When this occurs the county Department of Human Services (DHS) will send a “referral” to the county prosecutor asking that a family support case be filed. However, a parent does not have to apply for or be receiving state assistance to start a family support case. A parent who would like to start a family support case and is not receiving state assistance should contact the county DHS office and ask for an appointment, or may choose to contact a private attorney to file a family support action.  

The FOC has the responsibility to enforce all Orders of Support for as long as they are in effect. If the parents get back together and decide to end the Family Support Order, they must contact either the Prosecuting Attorney or their private attorney, and file an Order of Dismissal with the Court. Simply notifying a DHS caseworker or the FOC that you are back together does not end the Court’s support order. Collection and enforcement of the order by the FOC will and legally must continue. State law requires the FOC to enforce the order until it is changed or eliminated. When the FOC receives an Order of Dismissal, the Family Support Order collection and enforcement will stop, except for any arrearage that may still be due. If public assistance has been received for the children, parents will have to make an arrangement with the FOC to pay any overdue support owed to the State.

Either partner may begin a divorce action, even after the Court has ordered support in a Family Support action. The Family Support order will lose effect when a Judgment of Divorce is entered. A copy of the Judgment of Divorce must be provided to the FOC. If back support is owed under the Family Support action, state law requires that an order to pay any support arrearage must be part of the Judgment of Divorce.
 
If the parties have a Family Support Order and have also filed for divorce, and then decide to stop the divorce action, they must file an Order of Dismissal in the divorce action, and they must also file an Order of Dismissal in the Family Support case. Filing an Order of Dismissal for the divorce case does not stop the Family Support Order.  

Paternity Cases

“Paternity” is a word that means “being a father”. In Michigan, paternity can be established in several ways. Most often, paternity actions are brought under the Paternity Act, or the Child Custody Act and sometimes the Acknowledgment of Parentage Act.      By signing an affidavit of parentage, a father gives a child born out of wedlock the same legal status as a child born to married parents. Paternity acknowledgment is the voluntary process of a biological father being recognized as the legal father.  

To establish paternity, the most common ways to do so are:
     • Signing an acknowledgment form. The fact that your name appears on the birth certificate does not automatically establish paternity. The form needed is called an Acknowledgement of Parentage. These forms are available through DHS, the Prosecuting Attorney's office and hospitals.
     • Under the Paternity Act, an Order of Filiation may be entered. The Order of Filiation will provide for support of the child, reimbursement of medical expenses incurred in the child's birth, healthcare insurance coverage when it can be obtained at a reasonable cost, and support for the period before the order was entered. Orders of Filiation are enforced under the Support and Parenting Time Enforcement Act. DHS makes referrals to the Prosecutor’s office whether or not a party receives public assistance. A party also has the right to retain a private attorney to file the paternity action.

Parenting Time(a provision for the father or mother to spend time with the child) is not automatically ordered in paternity cases. However, if a parent who has a paternity action pending would like a parenting time order they should tell the Prosecuting Attorney or their attorney before the entry of the final orders. If both parties agree, a parenting time provision will be included in the final orders of the Court.

If the parties cannot agree upon custody or parenting time issues, they will have to file a petition to bring those matters before the Court and those issues will be dealt with separately from the paternity action. The Prosecuting Attorney cannot represent either parent on those issues.  Parenting time orders are not enforceable until the court has entered a written order for parenting time.

If the mother and father marry each other after the entry of a paternity order, they must give a valid copy of their marriage license to the FOC to end the support order. They must also make arrangements to pay any money owed to a public agency, although payment of birth expenses (confinement) may be suspended in this situation.

 Interstate Child Support 

Child support orders remain in effect even if you or the other parent moves out of Michigan. If the parent who is ordered to pay support (the “payer”) leaves the State of Michigan, he or she still must continue to pay support to The Michigan State Disbursement Unit(MiSDU). Failure to obey the support order will have serious consequences. If either parent leaves Michigan, it does not mean that the support obligation ends. If support payments are not made as ordered, there are laws between each state to assure that payments are made. Laws to help in enforcing child support include: 

Uniform Interstate Family Support Act  (UIFSA

 UIFSA assists states in dealing with cases where a party or source of income is in another state. Under UIFSA, only one state has the right to establish or modify support. This right can be given to another state only if certain conditions are met (such as both parents and the children move out of the state that entered the original order). If you know that the support payer in your case has moved to another state, contact the FOC to determine whether you can obtain assistance under UIFSA. Some of the procedures available under UIFSA follow:
     a) Registration of the Michigan Court Order for Enforcement. The FOC or a private attorney can help with this process. Registration for enforcement allows another state to take the Michigan order and enforce the full amount of support as if it were that state's own order but it does not allow the other state to change the support order.
     b) Registration for Modification. When Michigan or another state no longer has jurisdiction to modify the support order (e.g., neither party nor the child lives in the state that issued the order), and the order needs modification, the order may be registered in the state where the other party lives. Once the order is registered for modification in the other state, that state can both enforce and modify the support order.

SOME COMMON INTERSTATE SITUATIONS  

IF non-custodial parent lives in another state, and his or her employer is known…….
     THEN contact the FOC to issue an Income Withholding Order against the payer’s wages, and the out-of-state employer will be required to honor it by federal law.   If an Income Withholding Order is not an effective collection method (e.g. payer is self-employed), other enforcement options will be determined by state in which the custodial parent lives. Contact the FOC for more information. 

IF the custodial parent lives in Michigan, and the non-custodial parent lives in another state, but his or her employer is not known…
     THEN contact the FOC Interstate Caseworker and request an action under the UIFSA (Uniform Interstate Family Support Act). Once the non-custodial parent’s address is verified, the other state serves notice to the payer that a UIFSA action has been started. A court date will be set in the other state, and an order will be entered, recognizing the Michigan order, and allowing the other state to enforce it. When the UIFSA order is entered, the other state will enforce the Michigan order as if it were their own order. 

IF both parents live in the same state, but not Michigan…….
     THEN Michigan no longer has authority to enforce its support order, but you can get enforcement through the state where you live. Contact the Prosecutor’s office or Public Welfare office in the county where you reside to learn what local agency provided “support enforcement services under Title IV-D of the Social Security Act”. Contact that agency and request “registration of the Michigan child support order” in that jurisdiction. The new jurisdiction will take over the current support, arrearage (except those owed to the State of Michigan) and enforcement authority. Michigan closes its support portion of your case as long as there is no arrearage owed to the State of Michigan. Custody and parenting time issues are still controlled by Michigan order, until a separate action is taken to register those orders in a different state.   

IF Both parents live outside of Michigan but in different states from each other…….
     THEN Michigan no longer has authority to enforce its support order, but you can get enforcement through the state where the custodial parent lives. The process is nearly the same as when both parents live in the same state, except the resulting UIFSA order goes through an additional step of becoming “registered” In the non-custodial parent’s state of residence for enforcement. The new jurisdiction takes over current support, arrearage (except those owed to the State of Michigan) enforcement and modification authority. Michigan closes the support portion of your case as long as there no arrearage owed to the State of Michigan Custody and parenting time issues are still controlled by Michigan Order, until a separate action is taken to register those orders in a different state. The age of emancipation of a child remains as ordered by the original state.



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