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Tuesday, January 5, 2021

Imputation Factors Get a Facelift

Along with the new year comes the new 2021 Michigan Child Support Formula Manual.  One of the more substantial changes to the formula manual, which should remain in effect for the next four years, is the modification to the imputation factors, which can be found in section 2.01(G).  The formula refers to it as “potential income,” which is when “a parent is voluntarily unemployed or underemployed, or has an unexercised ability to earn…, subject to that parent’s actual ability.”  I like to call it “pretend money.”


The formula continues to maintain that potential income should not exceed 40 hours a week, nor include potential overtime or shift premiums.  If an individual is employed full-time, which is 35 hours or more per week, imputation is not appropriate.


There are 11 factors that need to be considered when assigning an individual potential income, and include things such as education, job experience and physical health.  The 2021 formula clarifies these to provide for a more detailed picture of the person’s actual ability to earn a living.  It adds earnings history as necessary information, which makes sense since the court will be assigning an actual number as the person’s “income” and using that in the child support calculation.


The formula also focuses on more socio-economic factors, adding considerations for literacy, residence, age and health.  For obvious reasons, an individual who struggles with literacy will have less job opportunities available to him, and many do not freely admit to these types of difficulties.  Now that the court will have to inquire, hopefully more people will feel comfortable sharing their literacy level so it can be taken into consideration.


The 2017 formula manual looked at an individual’s ability to drive and access transportation, and the 2021 manual retains those questions, as well as adding an inquiry into that parent’s residence.  Recognizing that homelessness, or an unstable residence, impacts one’s ability to work is an important step in evening the playing field when calculating child support.


If a person is imputed income, the court can also consider potential daycare costs (for the children in the case).  Some parents specifically choose not to work because daycare costs would exceed their paycheck, and it is important to factor in the costs they would incur if they were employed.


As the manual reminds its readers, failure to articulate how each factor applies to the imputed income, or state that it is inapplicable, is a violation of case law.  While the modifications to the factors were not large in number, they will make a substantial difference in recognizing the inequities that exist in society.


Thursday, December 3, 2020

Insanity Defenses are left up to the States

In mid-March of this year, the Supreme Court made a significant ruling regarding the use of insanity as a defense to a crime.  In the case of James Kahler v Kansas, No. 18-6135, the SCOTUS ruled that the Due Process Clause of the Constitution does not require a state to acquit a defendant who was found to be insane at the time of the crime.

Kahler was convicted of murdering his family and was sentenced to death in Kansas.  His wife had left him, taking their children, causing Kahler great distress.  While Kansas provides for mental disease or defect as a defense to a prosecution, it only allows for an acquittal if the defendant could not form the necessary mens rea.  Kahler attempted to use his depression as proof he was unable to form the requisite intent to kill.  He also introduced evidence in an attempt to reduce his sentence due to mental illness, but was unsuccessful.

Kahler appealed, challenging the fact that Kansas does not allow “an insanity defense that acquits a defendant who could not ‘distinguish right from wrong’ when committing his crime.” Kansas instead provides for cognitive incapacity, not moral incapacity, as a defense. The SCOTUS explained that in order for Kansas’ law to violate due process, it has to “‘[offend] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” The opinion provided a fascinating look at the insanity defense throughout legal history.

The Court reiterated that it is paramount to allow individual states to determine what can be used as a defense to a criminal act, due to ever changing social policies, morals and ethics.  It is not the duty of the Supreme Court to dictate how the states choose to apply the insanity defense, and the Court noted that opinions on mental illness and criminal behavior vary so widely that it would be unwise for the law to require one rigid standard. Since the research and knowledge on mental conditions change over time, a firm standard for the law would not adapt to the fluidity of the psychiatric field.

The SCOTUS affirmed the lower court in ruling that Kansas and all states have the power to choose how they handle insanity defenses.  I find it particularly fitting that this ruling was issued at the beginning of the pandemic – if there was ever going to be a year in which to claim insanity, 2020 would be it.

Monday, November 2, 2020

The votes are in

On October 16, 2020, the Michigan Court of Appeals ruled that all Michigan absentee ballots must arrive by election day, November 3, to be counted.  Anticipating issues due to the COVID-19 pandemic, citizens sued the Secretary of State and Attorney General to challenge the constitutionality of laws which require absentee ballots be received before the polls close on election day, the requirement for postage to be placed on the ballot in order for it to be successfully mailed, and who exactly can turn in the ballot for the voter.  Specifically, the plaintiffs sought an exception to the enforcement of these three laws for the 2020 election.

They were mostly successful in the Court of Claims, which ruled that absentee ballots could be counted up to 14 days after the polls closed if the ballot was postmarked prior to November 3. A non-relative, non-household resident third party could deliver another voter’s ballot if they had permission to do so, and it was between “5:01 p.m. on the Friday before the 2020 general election until polls close.”  Not surprisingly, the plaintiffs lost the postage argument.

An interesting twist happened when the Senate and House of Representatives successfully intervened in the lawsuit and appealed the Court of Claims’ ruling, with the Appeals Court noting that the Legislature had the right to defend its own statutes.  Without boring you with details, the Appeals Court basically determined that the Court of Claims used the wrong analysis when making its ruling.

The Court of Appeals leaned on a previously decided case which found the 8:00 p.m. ballot deadline to be constitutional under a “facial” challenge (looking only at the plain language of the law).  It held that the ballot delivery person law survived the plaintiff’s facial challenge as well.  The Court found that Michigan had made drastic changes to allow absentee voters to deliver their ballot without the use of mail, and complete the entire voting process, including registration, at one location.  Ultimately, it held that the restrictions imposed failed to place “an unconstitutional burden on the right to vote.”

To be thorough, the Court went through a brief analysis of whether the plaintiffs would be successful under the “as-applied challenge” analysis of the laws, determining that their claims would still fail.

Due to the pandemic, many voters will be casting absentee ballots this year, in Michigan and throughout the country.  Depending on the various rules of when counting can begin, Americans may not know the official results for days after November 3.  Regardless of the outcome, I am still proud that I live in a country where I have the right to vote.

Monday, October 19, 2020

Persistence did not pay off

The Michigan Court of Appeals recently decided an unusual jurisdiction case – Vijayalakshmi v Sivagnanam Thamilselvan, which involved competing jurisdiction claims from Oakland County and India.

Both parties are Indian citizens and were married in India as an arranged marriage. Only three weeks after their marriage, the husband moved to Florida, and the wife joined him a year later. They had a daughter in the US and moved to Michigan when she was an infant, settling in Farmington Hills. In late 2017, the wife and daughter left the husband, citing abuse, but remained in Michigan. The husband wanted to reconcile and decided to try and accomplish this by filing for divorce in Oakland County, hoping the family would return to him after he filed a motion for their daughter to return home. His plan didn’t work, so he dismissed the divorce.

The wife filed her own divorce action in Oakland County a month later, which forced the husband to concoct another plan to stay together. His reach was much farther this time, asking the Family Court in India “for restoration of his conjugal rights, as a form of reconciliation or mediation with [his wife].” As far as I know, Michigan has no equivalent to this type of petition, and I was surprised to learn this was an actual option. Not willing to stop there, he also petitioned the Indian High Court for an “anti-suit injunction,” which would stop his wife from pursuing the Michigan divorce.

The wife fought the Indian legal actions, but an injunction was ultimately entered in India. In the meantime, the husband filed the typical answer to complaint for divorce in Oakland County. He also filed two motions to dismiss the Michigan divorce, arguing that only India had the jurisdiction to divorce the couple. The court disagreed and would not enforce the Indian injunction, because doing so would prevent the wife from obtaining her legal right to a divorce. After a trial, the Oakland County divorce was granted in May 2019.

The husband appealed the finding of jurisdiction ruling, lack of recognition of the Indian order and some property values. The Michigan Court of Appeals found in favor of the wife on all issues.

Michigan’s jurisdiction of the court is found in MCL 552.9(1), which mandates that a judgment of divorce cannot be granted unless one of the parties has lived in Michigan for 180 days immediately preceding the filing of the divorce, and with few exceptions, one of the parties must have lived in the county where the complaint was filed for 10 days immediately preceding the filing.

The Court of Appeals emphasized that a party’s intent is the key factor in determining residence, and that the statute only mandates the residence requirement for one party, not both. In examining the family’s history in the US, they had lived and worked in Michigan for over 18 years, educated their daughter here, purchased two Michigan homes and paid taxes. The Court of Appeals gave deference to the trial court’s determination of the wife’s testimony as being credible to residency.

What was also key was the fact that the husband availed himself to the jurisdiction of Oakland County when he first filed for divorce and also when he answered the complaint. Basically, you can’t have it both ways. He also argued that only an Indian court could grant a divorce, yet he never petitioned the Indian court for a divorce – in fact, he did the exact opposite.

The husband also took issue with the lack of comity afforded to the injunction issued by the Indian court. Unfortunately for him, ‘[t]he rule of comity…is a discretionary doctrine…and is not allowed to operate when it will contravene the rights of a citizen of the State where the action is brought.” While it takes two to get married, you only need one to get a no-fault divorce in Michigan. If the Michigan court recognized the Indian injunction, it would be denying the wife’s inalienable legal right to a divorce.

The saying “throw it against the wall and see what sticks” is particularly fitting for this case, given the husband’s persistence in preventing the divorce. This same persistence cost him thousands as he was ordered to pay part of his wife’s attorney fees. It turns out persistence doesn’t always pay off.

Extras may not count toward child support

As parents, we want to provide our children with not only the things they need, but “extras” to help them be well-rounded individuals, like sports and extra-curricular activities. A lot of parents find that a phone and car are essential items for their kids – not just for safety but for convenience. Let’s be honest, driving kids to and from all of their activities is not my favorite pastime, and they have far more of a social life than I do at this point.

These extras can cost hundreds and thousands of dollars a year. Some separated or divorced parents choose to divide the costs; others take full responsibility. Cars don’t just come with the loan payment, they include car insurance, registration, driver’s ed costs, maintenance, etc., which adds up quickly.

When a parent takes on these extras for their children, they need to be aware that those expenses do not negate his or her obligation under a child support order. If you have a child support order, that obligation needs to be satisfied, and then you can pay for the voluntary extras. Some child support orders may take into consideration extra costs and deviate from the guideline recommended amount of support because the parent, or parents, pay for these additional expenses. Unless you have a court order requiring the horse boarding, teenager’s cell phone bill, or car payment (whatever the extra is) to be taken into consideration for purposes of child support, the guidelines do not specifically call them out as a reason to deviate from the formula recommended amount. There is the “catch all” deviation factor of “[a]ny other factor the court deems relevant to the best interest of a child,” but I’ve never relied on that factor to lower child support because a parent voluntarily pays for something the child does not need.

Some cases have orders that require parties to pay for these expenses, and set forth the percentage split and parameters for the costs – the order may state that the expenses have to be mutually agreed upon, it may include up to a maximum cost per year, and so on.

Parents who have been shelling out money for their child’s car, tuition, or tennis coach are often upset when they learn that absent a court order, these payments don’t have a place in the child support formula. As I often say, support is a “plug and play” program – plug in the numbers it asks for and hit go. There is no spot for me to plug in these costs, much to the paying parent’s dismay. These costs can be excessive, and the paying parent is not automatically entitled to a “break” in support because of it.

Similarly, items that you may provide your now adult children won’t be taken into consideration absent an agreement between the parties, or court order. Not to say it doesn’t exist, but I have not run across an order (absent consent) that requires support of an adult child to be considered when calculating support for the minor child. I suppose you can always ask, right?

So, before you take on additional financial responsibilities for your kids, understand that those perks you are providing to your children may not be relevant to your child support obligation. Pay them because you can and you want to, not because you are looking for a credit down the road. Discuss the matter with your ex, read over your court order to see if it requires a division of the costs, and decide what you want to do after you’ve done your due diligence. It will make your bank balance a lot easier to look at.

Hosting a Zoom hearing

I decided to do another article on Zoom hearings, but this time from the perspective of the person hosting the hearing or mediation. As I become more familiar with our new normal, I am finding that I am also becoming more skilled in what I can do (hooray!), and realizing the worth of Zoom’s features during a hearing.

My favorite option to utilize is the breakout room feature. When I have in-person hearings, if a potential settlement is offered, the attorneys almost always want time alone with their client to discuss and decide whether they want to accept. They walk into the hallway or into a separate room, away from the ears of the other party and counsel.

My first thought when learning that we would use Zoom was that this very important “alone time” would be impossible. I was pleased to learn that Zoom provides breakout rooms – a virtual room that the host can assign individuals to, which allows them to have a private conversation in the same manner as they would in person. You can use the automatic breakout room assignment (which I’m guessing I would never use, as entertaining as that might be to randomly assign people), or the manual assignment. I use the manual assignment and choose the number of rooms (usually two for me – one for each party and their attorney), putting each client in the room with their attorney. Once I “open” the rooms, the participants must join, and they disappear from the main meeting, so no one else can hear or see them.

A helpful feature is that I can join various breakout rooms and check in with everyone. Participants can ask for help while they are in the breakout, which I admit I have missed in the past because I use breakout room time to quickly refill my drink or use the restroom (I’m pretty sure that the breakout time is often used as a break for the host). If the participants don’t rejoin the main meeting at the time I’ve instructed, I can unilaterally close the breakout room and essentially force them into rejoining the main session. I can also broadcast messages to the individuals in the breakout rooms, giving them time warnings or let them know of a new issue.

Another great feature, which the host and others can use, is screen sharing. If I am running a calculation and want the parties to see the figures I am inputting into the program, or want to explain a document, I can use the screen share option, letting everyone see exactly what I’m working with. I would caution that if you have multiple screens, or multiple programs open on your computer, make sure you carefully choose the correct screen and document to share. If you are sharing your screen that also has instant message open, move instant message to the other screen, or else a new message will pop up on the shared screen when it’s received. Depending on what that message says, you may not want others to see it. Don’t share a screen

with any confidential information about another case, or the case you are working on. When you are done using screen sharing, make sure you stop the sharing by hitting the appropriate button so you can continue working privately.

Zoom also has a god-like power available to the host – you can mute a participant. A party can also mute him or herself, but the host can also do that unilaterally if needed. We’ve all been there, with a client (or attorney) who is yelling, making inappropriate comments and completely interfering with the ability to hold the hearing. When that happens on Zoom, you can stop it immediately by muting the unruly participant. I always give a warning before doing so, and if the behavior continues, I can use my magic mute button and deescalate the situation. When (and if) things calm down, I can unmute and allow everyone to participate again.

Zoom has allowed me to continue my work safely and offers features that I don’t have available at my in-person hearings (like the mute button – wouldn’t that be amazing). I’m certain that there are plenty of other tools Zoom offers that I am unaware of and hope to be able to learn about them and put them to good use. Happy Zooming!

Preparing for a Zoom hearing

The COVID-19 pandemic has changed how we live, work and interact with family, friends and strangers. Some of these things have been met with resistance and anger, while others have been a little bit easier to handle. One major development that has impacted the practice of law is the significant increase in virtual court hearings. Most counties across Michigan and the country are utilizing ZOOM or other virtual meeting technology to hold appointments, court hearings, mediation and the like.

While the medical field has utilized virtual visits for years, the practice of law was slow to join the technology trend. Until recently, most counties in Michigan did not have the capability for online filing of court pleadings; now, it is often required. It can be nerve wracking to have to prepare for a hearing in front of a judge, and it can be equally as confusing to have to do so from your living room or office. Additionally, there is always the etiquette question of whether or not you have to wear pants if the camera is only from your waist up.

I recently returned to work from a three month stay home order, and have begun to venture into the world of virtual hearings. The most important thing that I have learned over the last few weeks is that mistakes will happen, and it’s simply not realistic to believe everything will go seamlessly. I have double-booked hearings, provided the wrong password, and forgot to turn the video off each time I had to leave the room for something. I’m positive that I will make more errors, because I’m human and this is an entirely new way of practicing law. The good news is that not one single person has chastised me, or gotten angry that these mistakes have been made. Most people laughed it off and shared their own stories of trial and error with our “new normal.”

My number one piece of advice to those attending virtual court hearings is to be patient. Be patient with the other parties, be patient with the attorneys, and the judge or referee. Everyone is new to this format and things will take longer until we get used to it.

Prepare the same way you would for an in-person hearing. The fact that the hearing is virtual does not absolve you from following procedure and simply neglecting to file briefs and bring evidence. The same goes for being on time. Make sure ZOOM is downloaded on your computer or phone before the day of the hearing. Test it out with a friend if you want to. Waiting until a few minutes before the hearing and realizing you need to install software is not going to be helpful, and could result in the hearing starting without you.

Appear with video if you can, instead of voice only. I like to see who I am talking to for various reasons – it ensures I am talking to the person that I am supposed to be having the hearing with, and it helps me determine the truthfulness of testimony. If you do appear with video, this is not a movie premiere. While family court hearings can be very entertaining, do not invite a group of friends to hang out in your living room while you have your hearing. Please make sure that your children are not in the room and exposed to the conflict that exists between their parents.

Appearing via video also allows screen sharing which is helpful for exhibits and other documents that are being shown. I can also show you the draft of a consent order if you and the other party reach an agreement.

Try to be in a reliable area for internet service so you aren’t cutting in and out during the hearing, and don’t assume the hearing will be faster because it’s virtual. Chances are it may take longer if there are technical issues, or if someone is unfamiliar with the format.

Virtual hearings will likely be more convenient for those who don’t have access to reliable transportation, or have issues with mobility. It may be difficult for those who are not tech-savvy or do not have access to the technology necessary to join the hearing (don’t forget you can join via a phone call too). I doubt that the use of virtual hearings will disappear when the pandemic is over, and it will continue to work its way into the justice system. Whether you are a fan or not, at least you won’t have to pay for parking.