Domestic violence is a serious issue that complicates divorce proceedings in Michigan for several reasons. First, the abusive spouse usually exerts a disproportionate amount of influence over the victimized spouse due to emotional manipulation, financial control and physical battery which gives an unfair advantage during the negotiation process. Second, the victimized spouse (and their children) often find themselves leaving the marital residence for safety reasons which can cause legal problems for retaining the home and the property within. Finally, the victimized spouse may find it is difficult to prove the domestic violence claims in court if there hasn’t been a record of police involvement and the judge is concerned that the allegations are made just to gain an advantage in court. For all of these reasons, a victim of domestic violence seeking a divorce is well advised to get legal counsel to assist him or her through the process and obtain a fair result.
This blog article will explain the many ways that domestic violence will affect divorce proceedings that spouses should be aware of:
DOMESTIC VIOLENCE IS A FACTOR IN PROPERTY DIVISION
The Michigan Supreme Court held in Sparks v Sparks, 440 Mich 141, 159-160; 185 NW2d 893 (1992) that judges should consider the following factors whenever they are relevant to the circumstances of the case to determine a fair and equitable division of property:
- Duration of the marriage
- Contributions of the parties to the martial estate
- Age of the parties
- Health of the parties
- Life status of the parties
- Necessities and circumstance of the parties
- Earning ability of the parties
- Past relations and conduct of the parties
- General principles of equity
Domestic violence plays a role in the property division because the judge may find fault in the abusive spouse’s past relations and conduct. In McDougal v McDougal, 451 Mich 80; 545 NW2d 357 (1996), the trial judge awarded a significant amount of marital property to the wife after determining that fault for the breakdown of the marriage was with the husband. The husband had generated substantial income during the marriage related to a number of patents he held as a result of his inventions. The court focused on a number of issues, including “his having broken a promise that he would attempt to have children with Ms. McDougal, his unilateral decision that the parties would begin filing separate tax returns, a September 1989 assault upon Ms. McDougal, and an unsuccessful attempt to divert toward his daughter some patent-related earnings that were received after the complaint was filed.” 451 Mich at 83. On appeal, the Michigan Court of Appeals determined that the property settlement was too extreme under the circumstances:
“In the present case, the circuit court has found that the divorce was the fault of Mr. McDougal. His wrongful acts, particularly the September 1989 assault of Ms. McDougal, easily allow such a finding. However…, fault is an element in the search for an equitable division — it is not a punitive basis for an inequitable division. We cannot agree that the element of fault in this case supports the extreme financial penalties imposed by the circuit court.” McDougal, 451 Mich at 90.
“Bearing in mind not just fault, but also (1) the eight-year duration of this marriage, (2) the significant contributions of both parties to the marital estate, (3) the ages of the parties, including the twenty-two-year age difference between them, (4) the good health of Ms. McDougal and the terminal illness of Mr. McDougal, (5) Ms. McDougal’s employment and Mr. McDougal’s retirement, (6) the “necessities and circumstances” of the parties, (7) Ms. McDougal’s $46,000 annual salary and the various sources of Mr. McDougal’s earnings, including the patents, (8) the actions of these parties before and during the marriage, and (9) general principles of equity, we are firmly convinced that the circuit court’s dispositive ruling was inequitable.” McDougal, 451 Mich at 90-91.
“A substantial award to Ms. McDougal is appropriate in this case. However, the circuit court has given Ms. McDougal far more of the parties’ financial assets than is equitable. She is slated to receive most of the parties’ financial assets, as well as a continuing interest in the patents themselves.” McDougal, 451 Mich at 91.
In weighing a party’s conduct, the trial court’s purpose is to reach an equitable division of the marital property, not to punish the party found at fault. Courts must strike a delicate balance to determine what is fair (even in the face of domestic violence), so victimized spouses should know that the application of past behavior is complicated.
DOMESTIC VIOLENCE IS A FACTOR IN ALIMONY AND SPOUSAL SUPPORT
The Michigan Court of Appeals held in Beason v Beason, 435 Mich App 791; 460 NW2d 207 (1990) that judges should consider the following factors whenever they are relevant to decide if spousal support should be awarded and how much:
- The past relations and conduct of the parties
- Length of the marriage
- Ability of the parties to work
- The source and amount of property awarded to the parties
- The age of the parties
- The ability of the parties to pay alimony
- The present situation of the parties
- The needs of the parties
- The health of the parties
- The prior standard of living of the parties and whether each is responsible for the support of others
- General principles of equity
Domestic violence is a strong consideration for alimony to be awarded. In Cloyd v Cloyd, 165 Mich App 755; 419 NW2d 455 (1988), the plaintiff appealed when the trial court declined to award alimony to any party. The Michigan Court of Appeals reversed and found that alimony should have been awarded to the plaintiff due to a number of issues considered, in particular the husband’s past violence:
“In spite of these findings, the court held that alimony was not appropriate for either party. However, the factors considered by the trial court clearly weigh in favor of awarding alimony to plaintiff. In addition, the past conduct of the parties factor weighs in plaintiff’s favor in light of the testimony regarding defendant’s violent behavior. Moreover, while plaintiff’s testimony that she was disabled was disputed, there was absolutely no testimony indicating that defendant’s surgery left him disabled in any respect. Inasmuch as defendant’s earnings are well into the mid-$30,000 range, defendant had the ability to pay alimony. Even if plaintiff could return to work, her earnings were just over $5 per hour. In addition, the prior standard of living of the parties was based on defendant’s being the major “breadwinner” who paid the bills and gave plaintiff $100 per week for groceries, clothing for the children, medicine, etc. Finally, plaintiff has medical expenses that she must pay because defendant was not ordered to maintain plaintiff’s Blue Cross and Blue Shield coverage. Since virtually every factor weighs in plaintiff’s favor, the trial court should have awarded alimony to plaintiff.” 165 Mich App at 761.
Proof of domestic violence during the marriage is a strong consideration for an award of spousal support in the eyes of most judges. It is especially important in a situation where one spouse exerted control by preventing the other spouse from leaving the home and having a job or career, since spousal support will offset the lost opportunities for that spouse to gain skills, education and experience to have meaningful employment to independently generate a good income.
DOMESTIC VIOLENCE IS AN EXPLICIT FACTOR FOR CHILD CUSTODY
MCL 722.23 lists the “best interests of the child” factors that the trial court must consider when making a custody determination:
- (a) The love, affection, and other emotional ties existing between the parties involved and the child.
- (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
- (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
- (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
- (f) The moral fitness of the parties involved.
- (g) The mental and physical health of the parties involved.
- (h) The home, school, and community record of the child.
- (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
- (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Domestic violence is an explicit factor that must be considered in child custody cases. In Brown v Brown, 332 Mich App 1; 955 NW2d 515 (2020), the Michigan Court of Appeals determined that domestic violence for purposes of child custody should be defined as “the occurrence of any of the following acts by a person that is not an act of self-defense:”
- “Causing or attempting to cause physical or mental harm to a family or household member.”
- “Placing a family or household member in fear of physical or mental harm.”
- “Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.”
- “Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” 332 Mich App at 11.
The Michigan Court of Appeals determined that, since children are uniquely vulnerable to what they see and hear at home, domestic violence should encompass more than just physical harm and include mental abuse or intimidation. In this case, the Court determined that the parent’s use of corporal punishment as a disciplinary method constituted domestic violence. 332 Mich App at 10. However, it is not necessary for this factor that domestic violence is directed at the children as long as it is occurring in the marital home where they can be affected by it.
VICTIMS OF DOMESTIC VIOLENCE CAN SEEK CONFIDENTIALITY AND PROTECTION DURING THE DISCOVERY PROCESS
A divorce proceeding in Michigan is a lawsuit which means that both parties are obligated to disclose all assets to the court and both parties are permitted to engage in the discovery process to compel the other side to turn over information. This can take the form of serving interrogatories and requests for documents or admissions on the other side to answer, compelling third-parties to turn over information through the issuance of subpoenas, or even have witnesses provide live testimony during depositions.
In addition, to streamline divorce proceedings and the exchange of information, parties are required to make mandatory disclosures to each other at the beginning of the case. “Unless waived in writing by the parties, or unless a settlement agreement or consent judgment of divorce or other final order disposing of the case has been signed by both parties at the time of filing, and except as set forth below, each party must serve [Form CC 320 (Domestic Relations Verified Financial Information Form), hereafter ‘Verified Financial Information Form’] within 28 days following the date of service of defendant’s initial responsive pleading.” MCR 3.206(C)(2). This form requires the parties to disclose personal information such as addresses, employment information, sources of income and holders of debt.
However, the court rules provide some shield for victims of domestic violence. “If a party is self-represented and his or her address is not disclosed due to domestic violence, the parties’ Verified Financial Information forms will be exchanged at the first scheduled matter involving the parties or in another manner as specified by the court or stipulated to by the parties.” MCR 3.206(C)(2). “A party who is a victim of domestic violence, sexual assault or stalking by another party to the case, may omit any information which might lead to the location of where the victim lives or works, or where a minor child may be found.” Id. If a party excludes his or her address for good cause, that party can agree to electronic service of the Verified Financial Information form (e.g. email) or provide an alternative address where mail can be received. MCR 3.206(C)(3)(a-b).
In addition, judges can issue orders during the discovery process limiting some of the information that can be disclosed so that the abusive spouse cannot appear at the victimized spouse’s home or place of work to terrorize them. A party can even maintain a confidential address in court filings to prevent the other spouse from locating them. An attorney can be of assistance in filing motions and fashioning orders that can protect the victimized spouse’s information.
MEDIATION AND SETTLEMENT NEGOTIATIONS ARE COMPLICATED BY DOMESTIC VIOLENCE
Over 95% of divorce cases settle before trial. Most parties come to the conclusion that they can reach a better agreement together than what a judge may impose. However, settlement negotiations are difficult in a marriage plagued with domestic violence because the abusing spouse will try to exert power and control over the abused party to get a favorable outcome. This imbalance of power is unfair and dangerous.
Mediation, where a neutral third-party helps facilitate discussions between the parties to reach an agreement, may also be inappropriate where marital violence is a factor. In fact, the State Court Administrator’s Office recommends that parties complete a Domestic Relations Mediation Screening Questionnaire so that both sides can make disclosures about the nature of hostility and violence in the marriage relationship. If the mediator determines that domestic violence is an issue, then alternative measures to work out the case may be employed such as using remote conferencing or emails to conduct settlement talks for the protection of the victimized party. In cases where even that method is unreliable since a battered spouse may cave in to the whims of the abusive spouse with external pressure, the mediator may recommend that it is better for the judge to make a decision.
The best thing that a victimized spouse can do is hire legal counsel to advocate for their legal position and vigorously pursue a fair and equitable outcome regarding property division, spousal support and child custody under the circumstances. The mediator does not make decisions but rather facilitates discussions. Only a skilled family law attorney can advance your position forward and help you ensure that your rights and your safety are protected during the divorce process.
OUR FAMILY LAW ATTORNEYS ARE AVAILABLE TO ASSIST YOU THROUGH THE DIVORCE PROCESS
If you have further questions about family law in Michigan or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.