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DIVORCE 29: Spousal support in gross is non-modifiable, whereas periodic is subject to modification.

Plaintiff and defendant were married in October 1995. At the time of their divorce in 2018, plaintiff was 58 years old, and defendant was 65 years old. The parties have two children, one of whom was a minor at the time of the divorce. Plaintiff quit her job as a nurse when she married defendant in 1995. Until the parties divorced, plaintiff was solely responsible for raising the children, including homeschooling both children. Plaintiff was also solely responsible for taking care of the parties’ domestic affairs while defendant worked as a millwright for an automobile company.

At age 49, defendant was diagnosed with non-Hodgkin’s lymphoma. Plaintiff cared for defendant until his lymphoma went into remission. Defendant returned to work for a brief period, but later decided to take an early retirement. At the time of their divorce, the parties were living solely on defendant’s pension and Social Security payments, which totaled approximately $3,200 per month.

Plaintiff sought a divorce based on abusive behavior exhibited toward her by defendant over the course of their marriage. Plaintiff moved out of the marital home in March 2017, and the parties’ divorce was finalized in June 2018.

Plaintiff argues that the trial court erred by failing to clearly state whether the spousal support award was periodic or in gross, and, in either event, by failing to award plaintiff permanent spousal support. The trial court did err by failing to articulate whether it intended to award periodic spousal support or spousal support in gross, and the trial court did not properly consider applicable facts and law pertaining to whether plaintiff should have been awarded permanent spousal support.

The object of a spousal support award is to balance the incomes and needs of the parties in a way that will not impoverish either party. The trial court may award either periodic spousal support or spousal support in gross. As the name implies, periodic spousal support payments are made on a periodic basis. Periodic spousal support payments are subject to any contingency, such as death or remarriage of a spouse, whereas spousal support in gross is paid as a lump sum or a definite sum to be paid in installments. In addition, one major difference between the two types of spousal support is modifiability. Spousal support in gross is nonmodifiable, whereas periodic spousal support is subject to modification pursuant to MCL 555.28.1.

There are several factors to be considered by the trial court when awarding spousal support. These factors include: (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity.

The trial court is not required to make findings regarding every factor but should make specific factual findings regarding the factors that are relevant to the case. In plaintiff’s case, the record discloses that the trial court failed to make reviewable factual findings regarding certain factors.

In this case, the appeals court vacated the portions of the amended judgment of divorce pertaining to spousal support, the division of the life insurance policy, and attorney fees, and remanded for further proceedings.

It is important to remember that decrees regarding child support, child custody, visitation and spousal support (alimony) are not always final.

Our family law attorneys at Aldrich Legal Services have helped countless family law clients across southeast Michigan, including in Wayne, Washtenaw and Oakland counties, receive modifications that more fairly meet their needs. Contact us at our law firm in Plymouth.

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FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

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