Judges May Order “Nesting” Arrangement in Michigan Divorce Cases

I am a divorce lawyer in Auburn Hills, Oakland County, Michigan. My office is easily accessible to Rochester, Clarkston, Holly, Oxford, Troy, Lake Orion and Bloomfield. 

The court has very wide discretion regarding how it may handle custody in any given case.  One scenario that a court may order is that the children will reside in a single home and the parents (rather than the children) rotate in and out of the home in order to exercise parenting time.  This can be costly as the parents must continue to maintain the marital residence after the divorce and each party then must also have his or her own separate residence to live in when not exercising parenting time in the marital home.  Also many divorcing adults express privacy concerns when faced with this type of arrangement.  This is referred to as nesting.  Nesting may be agreed upon by the parties and the courts have been known to order nesting while a case is pending.

The Issue

Does a court in Michigan have the power to order ‘nesting’ for an indeterminate period of time after the divorce is final? 

The Answer

The court did just this in the matter of Andary v Andary, MICH COA No. 319299, February 10, 2015 (Unpublished), and it caused some serious ongoing issues for the parents.

After a trial, the court ordered that the parties would each have a 50% interest in the marital home and each would live with the children in the home on alternate weeks.  The mother contested this portion of the court’s property division.  The Michigan Court of Appeals upheld this decision even though the parties had a history of animosity and difficulty in dealing with each other.  The appellate court found that the trial court only ordered the above property division to accommodate the joint custody arrangement and as such it was a reasonable decision even though the court acknowledged the parties had difficulty getting along. 

The wife also argued that the court put an improper restriction on the use of her mother’s cabin which was near the marital home.  The court included a provision that the parent not exercising parenting time would vacate the home, not stay at the home  and if the wife visited her mother at her mother’s cabin, she shall remain in the cabin during said visits.  The record indicated that the court had a reasonable basis for this decision, the parties in the past sought to undermine each other and interfere with each other’s parenting time.  The court has the power to order any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time.  In this case, the court was able to order this peculiar custody arrangement and property division along with the conditions and restrictions incident to the same.

The wife’s final argument was that it was improper to award the marital home to the parties as tenants in common with equal ownership due to the husband’s alleged history of alcohol abuse, domestic violence, alienating behavior and secretiveness about finances.  The Court of Appeals appeared somewhat concerned about a personal protection order (PPO) that the wife obtained prior to the divorce, however, it discounted this issue as the wife subsequently withdrew the PPO.   

In this case, the court also ordered that neither party may cohabit in the marital home, so essentially neither party may carry on a live-in relationship with another adult so long as the parties share joint physical custody.

Finally, the wife/mother complained that while the court ordered the parties to share expenses for the marital home and children, the husband/father failed to pay for his share of the same.  The Court of Appeals found that this occurred after the court entered its order so it would not overturn the court’s decision based upon the information that was available at the time of the decision.  That is to say, that the court did not know the husband would fail to pay for his share of the bills as ordered at the time it issued the order.  This appears to be somewhat circular reasoning.

Summation

Divorce courts in Michigan have very broad authority and discretion regarding custody and parenting time.  The courts also may use this power to help fashion the property division.  This appears to have been a case where the court did not order what either party wanted, rather it came up with its own arrangement that neither party liked or wanted.