By Marie E. Matyjaszek
Law Office of Robert Matyjaszek
Over the next few articles I am going to discuss the top three most common hearings that occur during a divorce action. Motions come up here and there, but these three things will be faithfully set in each and every case. Attending them may or may not be necessary, but chances are good you'll go to at least one of them. The first one is the subject of this article -- Friend of the Court Conciliation hearing.
When you file a divorce action that involves minor children, you have to wait a minimum of six months before the court will divorce you. There are exceptions to this rule, but the chances of you being divorced in less than six months are about as good as my husband magically turning into David Beckham (or, in his opinion, me turning into Faith Hill). As one would imagine, a lot of parties separate before or during the divorce action, and they want to have a laid-out plan for when they see their kids. In order to speed this process along, the Friend of the Court sets a meeting called Conciliation. The purpose is to lay out the basics when it comes to the kids while the divorce is pending. Five topics are discussed at Conciliation -- custody (both legal and physical), parenting time (who has the kids when), child support (who pays who and in what amount), child care contribution and health care contribution (both factored into child support).
A lot of attorneys I know are split on whether or not to attend Conciliation with their clients. Because it results in a recommendation for a court order, some consider it crucial to be there. If I do go, most of the time I end up sitting there like a bump on a log as the conciliator really just wants to hear from the clients and not from the attorneys. However, if the client feels better with me present, or if opposing counsel is attending, I will gladly go. It obviously saves the client moolah if I do not attend. If she feels comfortable handling the matter on her own, then I'd rather sleep in (a lot of these hearings occur at 8 a..m and I live an hour from work. Beauty sleep is important you know. That's the only way I'm going to wind up looking like Faith.)
The child support factors, including child care and health care are fairly straight-forward -- the conciliator takes a look at each party's income, tax status and exemptions, and health care available through employers, and plugs that information into the computer program which magically spits out a number for one party to pay the other. Unreimbursed health care costs for the kids are also divided between the parties based on the abracadabra method as well.
Custody and parenting time is where it can get brutal. The conciliator is supposed to take a look at the 12 factors outlined in the Best Interests of the Child statute, MCL 722.23, consider each party's strengths and weaknesses, and make a determination in the child's best interest as to which parent should have custody (or shared custody), as well as the days and times the child spends with each of her parents. Most of the cases end up with joint legal custody, meaning that both parties have the right to participate in the important life decisions that come up in the child's life -- education, medical, religious upbringing, etc.
Physical custody can either be sole or joint -- sole is when one parent has the child in his or her care most of the time, and the other parent has weekend visitations and perhaps a mid-week visit. Joint physical custody is when the parties have an equal or approximately equal parenting time schedule and share roughly the same amount of time with the kids.
Because parenting time overnights are considered in the child support formula, you hear all sorts of accusations that he only wants joint physical custody so that he doesn't have to pay oodles of child support to the other parent, or if he has to pay full guideline amount he's going to default on the mortgage, she leaves him no choice...it honestly sounds like a broken record after a while, similar to how the radio stations ruin good songs by playing them once an hour, every hour, every day.
If the parties can reach an agreement on the five Conciliation issues on their own, the Conciliator can draw that up and have everyone sign right then and there. The attorneys can also prepare the paperwork, but surprisingly, when the clients hear it's free for the Friend of the Court to do so, they tend to like that option better. If the parties still live together, they may choose to reserve the issues until they separate.
Sometimes you can't reach an agreement if your life depended on it, and the Conciliator makes his or her own recommendation and proposed order on the issues presented and submits it to the parties and the court. If you don't like what the Conciliator has to say, you can object to it within 21 days after service of the recommendation and order. Then the court can decide what stays and what goes.
If possible, I think it's better to try to reach an agreement instead of leaving it in the hands of someone who only meets you for a couple of hours. You and your spouse should know what's best for the kids, but spite and otherwise unfriendly emotions that crop up during divorce can alter one's perception substantially. Focus on the kids and the clean slate for the future -- not on the old dirty laundry.
Published: Thu, Aug 18, 2011
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