If charged with DV in Michigan, the alleged victim will speak to a victim advocate who is usually employed by the state and either part of the prosecutor's office or works closely with the prosecutor. That advocate has special training and access to resources for a true victim of domestic violence.
It's not common that the alleged victim has direct contact with the prosecutor other than potentially prepping for a trial. Prosecutors in Michigan for the most part do not dismiss cases because the victim requests it - they consider their wishes in maybe reducing charges or offering 769.4A status, but the case doesn't go away upon request. So no, your spouse cannot get the case dismissed by asking the prosecutor. If they wish to be helpful, they can expand on information of the case, and maybe clarify that the incident was more mutual than first thought and if they made statements out of anger and not truth, then they should clarify or make a new statement. It will help in resolving the case, and would provide a more accurate account of the case for both sides.
If charged with domestic violence, there will be a no-contact order in place on day one. Assuming we can remove than you would be able to return home. During this time as long as your kids were not alleged victims of violence, there are no restrictions against seeing them or talking to them.
The above question would be more relevant if the DV charges were followed by a divorce or a custody filing with the family court. This assume the other parent wants to move to another state than where they currently reside against your wishes. Parents can take kids to different states temporarily and if both parents want to move then sure, anyone can change states, but if you are against this move, what's the likely outcome. This is called change of domicile.
Michigan law prohibits a parent of a child in a joint custody arrangement in Michigan from moving more than 100 miles away from the child's legal residence at the time the custody order was issued. There are exceptions in Michigan cases such as the other parent agreeing or if the original residence was initially 100 or more miles away, and this move actually brings the child closer.
Yes, but an award concerning child support, custody and parenting time in Michigan is always subject to the review by a Michigan court, and can be vacated if the judge finds that the award is not in the best interest of the child. A few things to consider.
First, is there a current custody order or judgment in place?
a. If yes, then the domicile or residence of the child/children may not be moved from Michigan without the approval of the court where the order or judgment was entered. In petitioning the court for a change of domicile, you must show proper cause or a change of circumstances.
Unless any of the following exceptions apply under MCL 722.31(2)-(3):
i. The relocating parent has been granted sole legal custody;
ii. The parents’ residences were more than 100 miles apart when the legal action commenced;
iii. The move results in the residences being closer; or
iv. Both parents consent to the residence change. (Such consent must be as to a specific relocation and not one provided in general terms prior to a relocation plan.)
b. If no:
i. Will the non-relocating parent object?
1. If yes, will the move change the child's Established Custodial Environment?
2. If no, obtain consent in writing (e-mail, text, print, etc.) and GO!
If charged with domestic violence in Michigan, your spouse may file for divorce. If this happens, we will need to tackle both issues. One major concern that my clients have when someone files for divorce against them is the state of their retirement accounts. To work so long, and so hard and to earn a nice retirement cushion then to see it go to another person can be quite stressful. Here are some typical questions and the answers.
How are retirement benefits divided in a Michigan divorce?In Michigan divorces, retirement benefits are usually the largest asset of a marriage, and can provide for both parties for the rest of their life. In Michigan every judgment of divorce must determine the rights of each party as it pertains to any vested pension or retirement benefit, any accumulated contributions in any pension, annuity, or retirement system, any unvested pension, annuity or retirement benefits.
Any vested retirement benefit accrued during the marriage must be considered with the property settlement in Michigan while unvested benefits don't necessarily need to be considered where it is considered "just and equitable" by the court. How much of my retirement plan is my spouse entitled to in a divorce in Michigan?In Michigan, a non-employee spouse is usually limited to the benefit of their spouse's retirement plan by the period of time, which the couple was married. If the employee had the plan before the marriage, a calculation will be conducted to see how much the plan has grown during the course of the marriage; this is not an easy process, and it is really a case-by-case calculation depending upon the type of plan, and the circumstances of the marriage as part of a Michigan divorce.
How are retirement benefits divided in a Michigan divorce case?In Michigan retirement benefits can be divided in two different ways. First, there is what is called the offset method, which isn't actually a division of the benefits, but gives the person non-employee spouse other assets of the marriage that are equal to the value/possible interest in the retirement benefits. The second method is called the deferred division method, which allows a domestic relations order to give the non-employee an actual interest in their spouse's retirement benefits as part of a Michigan divorce/
If there are no other sufficient or equal material assets, then method #2 might be a couple's only option. When a couple gets divorced in Michigan, and has to share in the benefits of a retirement plan, it could cause a lot of tension or conflict, which the parties would rather have behind them; this is where method #1 might be the better choice if possible.
In Michigan, retirement benefits under the deferred division method, can be broken into two different forms of payment. The benefits can be dispersed as a shared payment, meaning the actual benefit payments are divided as they are made, between both spouses, or as a separate payment, which essentially creates two distinct benefits for two separate participants. The type of method available in Michigan divorces is subject to the type of retirement plan, and the status of the plan at the time of the division.
In Michigan divorces, payments on retirement plans can also be periodic or lump-sum depending upon the plan, and the stage of the retirement benefit. A non-employee spouse may be able to call their own shots with disbursement or may have to adhere to the restrictions of the particular plan.
If charged with domestic violence in Michigan, there is a chance that it could spill into a divorce or a child custody family court case as a secondary legal issue. That is quite common, and my firm handles both. Assuming a DV case goes in this direction, and my child has children, one topic of conversation is how child support is calculated in Michigan.
In Michigan child support is defined as a court-ordered payment of money from one parent of a child to another. Children in Michigan have an inherit right to the support of their natural or adoptive parents. Payment of child support in Michigan may include health care, child care and expenses for education.
In Michigan a court must order support in the amount determined by the child support formula unless the court finds that application of the formula would be unjust or inappropriate with specific facts on the record to support the deviation. The Michigan child support formula considers the needs of the child and the resources of the family in Michigan and assigns the child a share of those resources in the form of child support. The formula will consider the parents income, the allotment of custody/parenting time of each parent and the number of children to be supported. The formula for Michigan child support will also consider the division of health care costs and child care expenses.
The Michigan family court can consider an agreement between the parties about child support, but the court does not need to follow the agreement.
If you're charged with domestic violence in Michigan, the charge alone with no impact your ability to see your children as much as you were seeing them before the incident. Now, if the other parent files for divorce or a custody proceeding against you then a determination will be made on parenting time of the children. The big key in Michigan for parenting time is number of overnights, which is how days are determined.
All parenting time agreements are subject to negotiation between the parties, and very rarely do cases go to trial for a judge to determine the parenting time. It just so happens that many dads assume if they are taken away from their family that they will only see their kids every other weekend. Any dad who has that arrangement, there is a 99 percent chance they agreed to that as part of an agreement. It's my experience that modern day judges value dad's presence even more in their kid's life, and it's in the best interest of the kids to see dad more and more. Don't settle for every other weekend, and you'll do a lot better.
With a DV charge which a custody or divorce proceeding follows, a judge may order temporary parenting time during the case, and with a pending DV charge, the parenting time may be supervised, but any final result is likely to be agreed upon rather than to be ruled on by a judge. So a DV charge has the ability to have a temporary impact on seeing your kids in very specific cases, but no long-term determined outcome; you have the power to determine how much you see your kids, and judges favor more vs less.
If charged with domestic violence in Michigan, there could be a divorce coming next, either started by your spouse or by you. If a divorce is filed then spousal support is possible.
In Michigan spousal support is determined by 11 factors:
- past relations and conduct of the parties
- the length of the marriage
- the ability for the parties' to work
- source and property awarded to the parties
- the age of the husband and wife
- the ability of a party to pay spousal support
- the present situation of the husband and wife
- the needs of each person
- the health of each person
- the prior standard of living, and whether the parties support others (kids)
- what's fair and equitable?
If spousal support is granted it can be modified due to a change in the circumstances unless the parties have previously agreed that spousal support will be barred from modification This is different than child support in Michigan divorce cases, which the parties cannot make any agreements about modification.
A person receiving spousal support in Michigan will no longer be entitled to the support if they re-marry, absent an agreement between the parties. Simply living with an other adult is not considered the same as re-marriage by purposes of terminating spousal support. If the payor dies, this does not terminate the obligation to pay the other spouse; the recipient spouse is entitled to continued support from the estate of the payor spouse. It may be advisable for the recipient spouse to have a life insurance policy for continued payment if the payor spouse passes away.
There's many ways to beat a domestic violence charge at trial in Michigan, but the best way to win at trial is to not go to trial or for a jury or witness to be sworn in. Here's an example of how that would happen.
My client is charged with domestic violence in Michigan, and we're exploring all pretrial options for resolution. Although the 769.4A is on the table, it would mean my client going on probation for 12 to 18 months and being one slip-up away from going to jail. While this avoids the criminal charge, you still need to earn it over those months. The client tells me that his or her spouse does not want to testify and would prefer that the whole case goes away. The prosecutor will not just dismiss charges because that is not the public position they want to take on domestic violence, but there is an avenue to getting that same result.
In certain courts with certain prosecutors, I would talk to my client about setting their case for a bench trial vs a jury trial. The idea is that we don't pick a jury, drain court resources when we know that the victim/witness will not show. We set it for a bench trial and skip the time consuming process of a jury with the idea that the prosecutor will not pursue a material witness warrant and have the victim/witness arrested and forced onto the witness stand.
I have a pretty good idea of what courts this would work and with what prosecutors and judges. The key here, my client, his/her family/friends or anyone associated with them cannot tell the victim/witness to not comply with a subpoena - this is witness tampering and a felony. I tell all of my clients that the other party can pursue whatever means they want in terms of the case and they are free to appear or not appear. They can hire a lawyer of their own or not hire a lawyer; they can face contempt of court for not complying or not face any contempt, it's their thing, my only interest is in my client, not the other person.
In Michigan, most DV cases do not go to trial, so there is a way to avoid anyone testifying against you. This would require a resolution of the case with a dismissal deal, a reduction in charges or a plea straight up to the charge without a dismissal deal.
If a DV case in Michigan involves children as a witness to the incident, the prosecutor may subpoena your child to come to court and testify. They would be subject to both direct and cross-examination just like any other witness. Avoiding having a child testify is certainly a goal if they are a witness to an alleged crime, but it may not always be possible.
Nothing about a domestic violence charge means you're going to lose your job. When a client is charged with domestic violence, it is NOT a conviction or a criminal record. An employer or prospective employer may be able to see a pending charge, which may bring questions, but unless a background check is being done on you, the police and court will not notify your job that you're charged with a crime.
It's always my goal for a client to avoid a criminal conviction for domestic violence. If we're able to do that then an employer or prospective employer will not be able to see the case because it will be a non-public record and they will not have access.
A domestic violence case or even a conviction is unlikely to have a direct impact on your job or career, but might indirectly impact your life. If you're kicked out of your home, and forced to live out of a suitcase, how will you be able to dress for work? If you only have one car in your household and your wife or husband has it during the case, how will you get to work? Things like this would be the reason why your job or career could be impacted. Planning early with your lawyer and having a plan in place to succeed is the key to getting over the hump when charged with domestic violence
Generally speaking, judges in Michigan are more likely to grant travel requests if the client is traveling for work, as the court has an interest in a defendant maintaining their job to pay fines and costs and to stay out of trouble. In addition to this general mindset, my clients are extremely proactive from day one, and establish some early currency in the case where a judge begins to give my client the benefit of the doubt. Changing the first impression to a true impression.
If my client is already alcohol and drug testing, in counseling and complying with bond, there would be no reason that a judge would not allow my client to travel as long as they return from court and fulfill all bond requirements.
The situation is a bit different when asking for permission to travel for non-work purposes - a judge will want more specifics if terms of where my client is going, who are they going to see, and who may be traveling with them. Generally, traveling for family events is preferred over traveling to Las Vegas for guys or ladies weekend. Court is not going to get in the way of a prepaid travel plan or an important family moment, but may consider denying a golf trip with the guys if the judge thinks there's a chance the client my consume alcohol or get themselves into trouble. Some judges may allow this travel because my client is innocent until proven otherwise, so why punish them, but other judges will favor the idea that being charged with a crime alone is serious enough to limit my client's daily life to the essentials: work, family, faith and health.
If charged with domestic violence in Michigan, the prosecutor on behalf of the State of Michigan or local city, township, village etc is the party charging you, not the alleged victim. Essentially, the victim is a mere witness to the domestic violence you committed against the people of the entire state, village, city etc.
Let's use the City of Novi as an example. My client is arrested for domestic violence by the Novi Police Department; the prosecutor will either be the City of Novi or the Oakland County Prosecutor's Office. That prosecutor is the one charging you, the alleged victim is only part of the facts and a potential witness for a trial.
If the alleged victim requests the case to be dropped, it can't directly happen because they are not a party to the case. The prosecutor would need to consider this request and agree; that DOES NOT happen, because a prosecutor assumes the alleged victim is simply doing what the client wants or is scared to pursue the case. Even if that alleged victim says my client did nothing wrong, it was a misunderstanding, that statement is likely to be the opposite of what was conveyed at the scene which was the basis of the arrest. Essentially the prosecutor will believe the past statement over the new statement.
There are other ways to get DV cases dismissed, but none of them involve a prosecutor openly dismissing the case on a public record. DV in Michigan is too much of a hot button issue to be dismissing cases; the thought is, what if this happens again and someone is seriously hurt or killed, we can't just be dismissing cases that may or may not have happened. Some prosecutors will simply let the case be set for trial, and if the victim does not show, the case will be dismissed, but at least the prosecutor can cover their butt and say, well the victim didn't show, I could not proceed.
To clarify, the spouse in this situation is not the one charging you with domestic violence, it is a prosecuting agency for a city, township, village, county etc. This prosecutor can use prior incidents against you in two different ways.
One, if you have a prior DV case, against or not against the victim in the current case, the prosecutor is unlikely to offer the 769.4A dismissal program in your case, which means we will need to set the case for trial. It may also make the charge more serious with a prior, which extends the maximum penalties.
Two, if you set your case for trial, the prosecutor may file notice of intention to use prior DV incidents at trial, either convictions or cases that were not formally charged against you. A judge decides if these incidents are allowed to be used at trial, but if they are, it's certainly a point of strength for the prosecutor in convincing a jury or judge that the current incident is in fact a crime. Facts about a past incident is likely to assist a prosecutor in convincing a jury or judge that you simply did it again, in a sense a pattern of domestic violence.
If charged with domestic violence in Michigan, there will be a no-contact order in place on day one. That order is subject to being amended by the court, but the alleged victim must agree to this, and the prosecutor must express that to the judge.
If the DV charge is against the kids as the victim, it's unlikely a judge would allow contact during the case, but if it is against another adult, there is nothing in place blocking my client from seeing, communicating with his children even if the order remains in place against the other parent. In this situation, I would ask the judge to accept a nominated 3rd party to facilitate seeing and communicating with the kids. This is usually a brother, sister, mom or dad of my client or the other spouse; the issue is the other parent must agree to this third party, and I've had cases where the other parent is simply saying NO to my nominations in order to jams the screws into my client.
So simply, if we can get the no-contact order removed, you can go to your house and see your kids. If we cannot remove the order, then you can see your kids, but not go back to the house, but if your kids are not able to drive, call, be independent enough to communicate/see you, another adult must be involved in the process. So things can really vary if your child is 3 years old or 17 years old in Michigan.
The answer here is simple, with our without a domestic violence charge, your spouse can get child support as part of a family court custody or divorce case. Domestic violence charges will not directly impact potential child support, but it could have an indirect impact on the amount.
If charged and convicted of domestic violence, your leverage to obtain parenting time/overnights in a custody or divorce negotiation is less than it was before the incident. Your case is unlikely to be decided at a trial where the incident would be a factor in a decision, but the other parents leverage is certainly there to hold a DV case over your head. If that leverage leads to accepting less overnights of your children, the formula used in Michigan to calculate child support will tip in the other parents favor, and you will be paying more child support.
Every case is different, and a small portion of domestic violence cases do not have a clear path to dismissal. If you have a prior DV case, or a number of prior incidents against the same person, it will be difficult to get the prosecutor to agree to resolve the case with anything but a conviction on your record - under this scenario, you would need to set the case for trial.
Assuming you have never had a prior DV case or documented incident on the books, working toward a dismissal is very much possible. Here is one situation where a client's case may be able to get dismissed.
#1 - Upon being arrested, we obtain all police reports, videos, audio and statements related to the case. There will be a no-contact order in place, so my client can't communicate with the victim, but as an attorney, I would be able to reach out if necessary. We make a plan to go to court, and if the other party is agreeable, we seek to remove the no-contact order. This allows my client to resume a somewhat regular life and have their mind in the right place to assist in their defense.
During this time, my client is undergoing voluntary alcohol and drug testing, especially if these substances were involved in the incident. I will have my client get into counseling to begin better understanding the process and learning from it. If my client is allowed to have contact with the alleged victim, I would try to get them into a joint counseling to begin to fix what lead up to the incident and begin transitioning things into a private situation vs a public embarrassment at the courthouse.
#2 - The alleged victim will chat with a victim advocate, and if they are supportive of a favorable resolution, that will be conveyed to the prosecutor who will then be open to my requests. The prosecutor will not simply drop the case upon request, it does not work that way in Michigan. As long as the alleged victim is open to making the case non-public, the prosecutor may authorize 769.4A status as part of a plea resolution. It's not easy as you may think to receive this deal, because the prosecutor must offer it and confer with the alleged victim.
#3 - If the 769.4A is on the table, and my client determines it is the best option for his case, then we will formalize the deal and confer with the judge about avoiding upfront jail, which is likely. My client must be prepared to be on probation and fulfill the requirements of the court; a violation of probation could mean this offense going on my client's record. Ideally we have knocked out a number of these requirements proactively, and my client is left with complying with staying out of trouble, avoiding alcohol, drugs, and paying fines and costs. If my client still has counseling, community service and other requirements to fill, we need to make sure we have a plan for success to knock these out as quickly as possible.
Michigan Divorce - Can my wife take my money, house and cars if she charges with me with domestic violence?
If you're charged with domestic violence in Michigan, and your wife has filed for divorce, you're fighting two uphill battles. Men charged with domestic violence in Michigan do not get the benefit of the doubt from the prosecutor and judge unless they earn it by being proactive and showing how they've reacted since the incident.
Being charged with domestic violence in Michigan does not help your divorce, but it is not the devastating factor that many people assume. Most divorce cases are worked out among the attorneys and yes, a DV charge creates leverage for your wife and her attorney, but in the end the assets, money and finances will be split up and agreed upon. Most divorce cases in Michigan, do not go to trial, so in the end, the DV is unlikely to be a direct factor where a charge is deciding you should get the short end of the stick because you are simply charged with a domestic violence offense.
Your wife will be taking some of your money, some breakdown of cars, home with or without the domestic violence charge - negotiating a divorce settlement is a whole other story. A DV charge should be taken seriously, addressed with your rights protected, all options on the table, but it is not going to sink your divorce simply because you're accused of something in a criminal court.
If you're charged with domestic violence in Michigan, and you believe you are falsely accused, we need to get to the bottom of why you're falsely accused.
Did things get out of hand with the alleged victim, the police were called, but both parties played a part, but you were arrested? If the alleged victim is willing to tell the whole truth to the prosecutor and victim advocate and be helpful to our case, then there would be no additional reason for you to file for divorce. Of course, if things are escalating to where the police are called to your home, it may be a good idea to at least explore how to address that problem so it doesn't happen again or talk to the victim about the next step in your marriage. Should you guys be together? That's for the both of you to decide.
Now, if you were arrested, but believe you were not the aggressor or the person truly at fault, and the alleged victim is throwing the blame on you and not being helpful to the case, it might be a good idea to consider removing yourself legally from that person to protect your relationship with your kids, your money, and your overall happiness.
I see it too many times, a client of mine has had issues with their spouse for years and years, and they've been fighting non-stop. They continue to fight then makeup, but the other spouse uses the threat of the police and prosecuting on my client until it actually happens. This is not a healthy lifestyle and situation for my client, and it may be time to finally put their foot down. If you're already charged with DV, it is a bit too late for this case, but a lot of people come to me with a prior incident with that same person, and I can't believe they stayed with them after being falsely prosecuted in the past. This person needs to file for divorce ASAP.
It depends on what happened with the domestic violence issue. If the DV charge is against the children then YES, a court may not allow you to see your children at least temporarily until something changes where the court is no longer concerned about your conduct as a parent with the children. That may progress to what is known as supervised parenting time, which involves a third party approved by the court who is present during the time you spend with the kids, and a report is generated to the court. The amount of supervision and the need for supervision will change over time.
In Michigan, there are two types of custody, physical and legal custody. The physical custody is being with the kids, spending time with them, spending time with you, and the legal is the decision making process for the kids as a parent. If the case is against a child, the Child Protective Services will be involved and there will be layers of legal issues.
As long as the domestic violence is not against one of the children, you will likely NOT lose custody of your children for a domestic violence charge. If Child Protective Services is not involved, and the case was simply a mom and dad fighting, and one is charged, there is nothing in place that would block you from being with your kids. The only way this would change is if one party files a case at the circuit court over custody or a full scale divorce. The non-defendant party will likely cite the domestic violence case and seek to limit or take away custody.
The court uses the "best interest of the child" analysis, and generally speaking it is always in the best interest of a child to have both parents in their life as much as possible. So yes, custody could be impacted by a DV case in Michigan, but it is usually temporary if there is any change at all.
How do I know if my spouse is filing for divorce in Michigan? I don't want to be caught by surprise by a Michigan divorce
Many clients who are charged with domestic violence are worried that their spouse is meeting with a high-powered divorce attorney who has the tools to take away my client's home, retirement accounts, clear out bank accounts, and take the kids away while demanding spousal and child support. This is terrifying on top of being charged with a serious crime.
As you'd read in my various survival guides, there are different types of domestic violence cases in Michigan, and many cases have a couple, spouse or family member who wants to remain with my client, and is working hard to help us resolve the case. We don't expect a family court case to be opened up against my client, but there are some cases where we need to worry.
If the alleged victim has requested that the no-contact order stay in place, and they have filed for a PPO and obstructed my client seeing his/her kids, and has been difficult about picking up items from the household, I have my team check the online circuit court case search on a regular basis to check for PPO filings and custody/divorce cases.
Along with the initial check of the online sites, I have a sit-down with my client about their options. If my client is falsely accused on domestic violence, and the alleged victim is doing everything in their power to ruin my client's life, I will usually discuss my client's options to file their own family court proceeding if kids are involved or the parties are married.
If kids are involved, especially young ones, it may be difficult to see those kids if they are living with the alleged victim and they don't have their own access to a vehicle or a cellphone. This is when my client needs a circuit court judge to step in and possibly sign an ex-parte order for parenting time and make sure that my client still has the ability to participate in decisions for the children. Just because my client is charged with DV, doesn't mean they are no longer a mom or dad to the kids.
If the parties are married, we discuss filing for a divorce and taking proactive measures with the finances such as filing for ex-parte orders to essentially put a freeze on spending, reallocating assets, closing, withdrawing accounts and money etc. A motivated victim will use the DV charges and potential conviction against my client in a divorce, if they are falsely accused, they need to file a divorce and essentially make a strong point that they do not want to be with someone who is falsely accusing them of a serious crime, and they are fighting the criminal charge and asserting their rights in the circuit court over the couples assets and privileges.
Each DV case in Michigan is different; yes that's obvious, but let's go over some of things factors.
#1 - Who is the alleged victim in the case, and are you prepared to have them come to court and testify against you?
#2 - If they don't want to come testify, are you prepared to have the judge issue a material witness warrant and have them arrested and brought to court?
#3 - Do you want your case being a public proceeding with the community, media and the general public having access to the details of the case?
#4 - Will going to trial and being found guilty prevent you from receiving an otherwise satisfactory outcome, which might be worked out prior to trial? Example - a dismissal, favorable sentencing deal the judge or reduction in charges
#5 - Are you prepared for the financial and mental strain of putting your family on trial? Lasting impressions and memories are made for the worse in a criminal trial, and going to trial will cost you a lot of money in attorney fees. Is it worth it?
#6 - If the prosecutor won't budge on a deal, and you didn't do anything wrong then yes, you should go to trial because you're innocent. Your reputation, career and future are on the line.