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Thursday, November 17, 2011

Factors used by the courts in determining child custody: Part One

If you have children, they are going to be the most important aspect of your divorce (unless you’re parenting a la Darth Vader).  The court has to use a specific set of factors to determine custody, which are set forth in Michigan’s “Best interests of the child” statute – MCL 722.23.  There are 12 total factors that I will discuss here and over the next coming articles.

It’s important to distinguish between the two types of custody – legal and physical.  Legal custody pertains to which parent can make and participate in the important life decisions of the child – education, medical, religious upbringing and the like.  It does not include things like whether or not your child can have Butterfingers® and Mountain Dew® immediately before you turn him over to your ex for parenting time. 

Legal custody can be either sole, where only one parent makes the decision, or joint, where the parents share in the choices for their child.  I would venture that joint legal custody triumphs in 95% of all cases end, as most parents can communicate well enough to be involved in their child’s important life decisions.

Physical custody refers to which parent has the child in her or his physical care the majority of the time.  It is also either sole, where one parent has the child most of the time, and the other typically has mid-week and weekend visits, or joint, where the parents share an equal or approximately equal parenting time schedule.  Since your parenting time is what actually controls when you see your children, the terminology for sole or joint physical custody often has more of an emotional or implied meaning rather than actually affecting how much the children are in your care.

All of that being said, the first factor is “The love, affection, and other emotional ties existing between the parties involved and the child.”  This refers to which parent the child is attached to emotionally – who does Tommy look to when he is hurt, go to when he cries (besides grandma).  Most of the time this factor is equal for both parents, but of course when divorcing some couples feel the need to “one-up” the other and act like the child only seeks mom or dad’s attention.  Kind of like the person in dog obedience class that puts bacon grease on his fingers so that the dog worships him and it appears as if that person has mad training skills.  (I’ve seen it happen people – such a disgrace).

The second factor is “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.”  This factor plays off the first and looks at whether or not each parent exercises proper discipline and parenting skills, encourages and assists them in school and religious upbringing if applicable.  Among other things, the court can consider if parents use corporal punishment (i.e. spanking), time outs, or other types of child-rearing techniques; how they show the child love (hugs, telling him); if the parents have high school degrees, post-secondary/graduate education, attend parent-teacher conferences and if either parent is religious or attends church.

Factor three is “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.”  I find that parents really enjoy bashing each other with this category, claiming “I carry the health insurance and pay for it,” or “He doesn’t even know the name of the doctor, let alone when Tommy’s due for vaccinations.”  (HINT – it’s not always every three years like Fido’s rabies shot.  On the plus side, you don’t have to license your children).

Employment is obviously a heavy hitter in this factor, because if you don’t have a job it makes it very difficult to provide your child with day-to-day necessities.  In this economy, as long as you’re trying to gain employment and don’t have a pattern of being jobless, this factor won’t be too damaging if you’re unemployed.

Stay tuned for the rest of the child custody factors, and in the meantime, please swap out Tommy’s Mountain Dew® for water.

Courtesy of Jackson County Legal News, 11/14/11, Vol. 47, No. 11

Tuesday, October 25, 2011

The third and final hearing - The Divorce Trial

The divorce trial is your swan song – the final culmination of what you’ve been fighting for all these months.  Despite valiant efforts, you can’t reach a total agreement with your spouse – maybe you’ve agreed on some but not all of the issues, or perhaps everything is up for grabs.

Most divorce attorneys will recommend that you settle your case if you can – regardless of the judge’s reputation and skill, the truth is the judge barely knows you and will most likely only listen to your arguments for a few hours.  In my opinion and experience, the majority of divorce cases settle (I’ve heard a statistic that as high as 97% of divorce cases resolve without a trial).  Do whatever you can to minimize the outstanding disputes in your divorce, as this will lessen the number of issues the judge has to resolve as well as reduce your attorney fees and court costs.  If you can settle some or all of the property issues – who gets the house and cars, how the financial assets (bank accounts, retirement, non-retirement investment accounts, etc.) are going to be divided – you can put an agreement on the record as to those specific items and go to trial over the rest.  In doing so, you’re left with a smaller portion of your estate to wage battle over.

Custody, parenting time and child support are the most common deal breakers in a divorce case, and rightfully so – the time you spend with your children is priceless and it should be the paramount issue in your matter.  Stay tuned for future articles that will discuss the “Best Interest Factors” that the court has to consider when making a custody ruling.

During the trial, you get to call the witnesses that you listed on your previously filed witness list, and your spouse is able to do the same with his.  Both attorneys can cross-examine the other spouse’s witnesses, mitigating any damage that person created, or call a rebuttal witness to challenge what an earlier witness testified to.  The parties themselves are the most important of those called, and hopefully your testimony as well as those of your supporting witnesses will make your argument favorable to the judge.

It’s important to listen to all of your attorney’s prep tips for your testimony – wear appropriate clothing (courtroom appropriate, not Saturday night bar hopping appropriate), answer questions honestly and concisely, and don’t be afraid to say you don’t know the answer to a question or that you can’t remember the answer.  If you don’t understand the question, then ask for it to be rephrased in a way so you can better know what is being asked of you.  Control your emotions and behavior as much as possible – no eye rolling or snarky remarks.  No matter what the facts, you certainly do not want the judge to see you as an “unlikeable” person with a vendetta against your spouse.

Exhibits are used to buttress your argument or perhaps impeach something your spouse testified to (although I’m sure he legitimately forgot that he withdrew $20,000 in marital funds the day before he filed for divorce).  The attorneys make closing arguments to solidify your position and then…you wait.

Don’t expect the judge to make a same-day decision, although sometimes that does happen.  It’s more likely that the judge will take it under advisement where you will wait a couple of weeks before he calls the attorneys to a hearing to issue his ruling, and some judges submit a written opinion that is shipped out to both attorneys after the trial.  You can appeal a judge’s ruling, but most parties don’t have the resources or time to do so and stick with what the judge decided, even if they do not believe they came out on top.

You’re never going to be completely happy with the outcome of your divorce, but the more control you maintain over it the more likely you’re going to be able to live with the final decision.  Settle what you can, take the rest to trial and listen to your attorney’s advice for what to do – and save the debut of the little black dress that screams “I’M SINGLE!” for after court.

Courtesy of Jackson County Legal News, 10/17/11, Vol. 47, No. 89

Monday, September 26, 2011

Pre-trial: No. 2 of the 3 hearings you're likely to attend in a divorce

A pre-trial is the step before your divorce trial, and in most cases, I think clients will find the hearing itself to be pretty anticlimactic, especially when compared to drama-laden courthouse scenes from TV.  Thankfully, most pre-trials are not set as early as Conciliation, and depending on the judge assigned to your case, you may or may not be required to attend.

Pre-trials are useful to keep the case on track and provide an update to the judge as to how the case is coming along – are you likely to settle, need to go to trial, explore mediation possibilities, etc.  Most judges are open to discussing particulars with the parties’ attorneys in chambers at the pre-trial – your attorney can run an issue by the judge, briefly present his side while your soon-to-be ex’s counsel presents his position, and the judge will often give an indication of how he or she may rule if the issue were to go to trial.  This saves an enormous amount of time and money as the attorneys can take this “draft ruling” back to the clients and suggest that they settle or negotiate towards how the judge was leaning.

In many cases, witness and/or exhibit lists are exchanged before or at the pre-trial.  The witness list contains the names of potential people you’d call to support your side of the story if you were to go to trial.  This typically includes both parties, relatives, friends, the children, records keepers and experts to round it out.  By providing these documents to the opposing party, you get a sneak-peek of what the other side’s game plan is.  There are many times when I receive a witness list and don’t know who some of the people on the list are.  Once I ask my client, I routinely receive the response of “I can’t believe he’s calling her as a witness!  I know what he’s up to!”  or “Oh no, how did he find out about him???” (You’d be surprised how many times attorneys don’t know what people are up to.  It’s probably because people are less than forthcoming about the truth, the whole truth, and nothing but the truth, so help me God kind of stuff.)

Exhibit lists typically contain the documents that the parties want to present to the court to support their side and explain and/or value the property involved in the marital estate.  Most of the time the exhibits that are going to be used have already been exchanged between the parties during the discovery period of the divorce, so there are less surprises on the list.

If the parties and their attorneys are available to stick around after the pre-trial, negotiations can occur and if an agreement is reached as to all issues, the agreement can be placed on the record in court and the parties are then bound by those terms.  This agreement is drafted into the final Judgment of Divorce and the parties avoid going to trial, saving everyone time and money.

So, in summary, don’t be afraid of the pre-trial despite the fact that it has the nasty word “trial” in it.  It’s a lot more work for your attorney than you, and many times the parties make significant headway towards settling the matter, which benefits everyone.  You probably won’t even have to set your alarm as early as you would for Conciliation.  Nothing should really occur before 10 am anyways.

Courtesy of Jackson County Legal News, 9/12/11, Vol. 47, No. 79

Sunday, August 21, 2011

First stop on the road to divorce: FOC Conciliation Hearing

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 in Jackson County 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 am 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.

Courtesy of Jackson County Legal News, 8/18/11, Vol. 47, No. 72

Wednesday, August 10, 2011

Clarification of grandparents' rights

Since I had an inquiry on grandparents' rights this morning, I thought I would post a clarification - the grandchild that is the subject of the case must still be a minor and under the Court's jurisdiction.  If the child is over the age of 18 and/or no longer under the Court's jurisdiction, there is no relief the Court can give you as far as grandparents' rights.

Wednesday, August 3, 2011

Social Media disclosures can affect divorce proceedings

Facebook has pretty much taken over people’s lives – they “check in” and let us all know that they are shopping at Best Buy or eating at Subway, because obviously we care deeply about these intimate details.  MySpace, Twitter, Linked In and other social media have propelled our society into a “sharefest” (yes I made that word up) where we talk about our problems, ask for advice, hock our wares and otherwise blab about our day.  I won’t lie – I am guilty of it too, but of course I never check it at work.

When you’re going through a divorce or custody dispute, or any other type of legal matter, you want people to sympathize with you and tell you that you’re doing the right thing.  So naturally, you post on your Facebook wall all of the evil things your ex is doing to you, and how wrong and ignorant the judge is (the judge has to be blind to rule against you!  I mean, what was he thinking?!).  Never mind the privacy settings that Mark Zuckerberg keeps bugging you about, you’ll deal with those the next time you log in.  In the meantime, everyone should see your post so you can have maximum exposure of your righteous message!  Unfortunately for you, that maximum exposure includes your ex, your ex’s boyfriend, acquaintances, your kids, the guy at the car dealership, and – oops – your ex’s attorney.

I’ve gone through quite a bit of ink on my trusty HP printer in the last 5 years watching the glorious colors of evidence spew across the printed Facebook page.  If people are dumb enough to post something that helps my client’s case, I’m more than happy to waste a $30 cartridge for that eventual win in court.  I once had a defendant challenge a default judgment, lamenting that the marital assets were not divided fairly.  Luckily for me, he liked to show everyone how he lived, and I was able to attach to my answer a plethora of pictures from his social media site filled with bling, tricked-out cars and a high-rollin’ lifestyle that clearly contradicted his plea of poverty.

Other times the opposing party will post disparaging remarks about the Court, Friend of the Court or the soon to be ex, and some of these comments can get quite ridiculous.  Then there’s the person whose probation requirements make drinking or being in a bar a no-no, and there’s a nice picture of him with a Pabst Blue Ribbon in his hand plastered across Facebook (you’d think he’d at least spring for a Miller Lite).  Pictures and graphics of marijuana are way more common than you’d believe, as are photos of the party with his or her new romantic interest that’s been denied for months (and no, I don’t believe you kiss your friends like that.)

From what I’ve researched, it appears one out of five divorces in the United States involves using Facebook as evidence.  I absolutely agree that Facebook is by far the most common social media brought up in my cases.  Even if I never end up attaching the printout, you can bet it’s in my file waiting to be shared if need be.

Facebook and other social media are fun and allow us to connect with a lot of people we might otherwise not be able to.  Just remember that if you’re going to put the intimate details of your life out there for the world to see, don’t forget that the world’s population contains a whole boatload of attorneys.

Courtesy of Jackson County Legal News, 8/1/11, Vol. 47, No. 67

Tuesday, July 12, 2011

Marijuana and family law? An unlikely pairing

Now that all of the new marijuana stores are up and running in town, I figured it was a fitting time to write an article about the medicinal marijuana law and how it affects parents with minor children.  And by the way, does anyone agree with me that putting a store right next to City Hall in Jackson is pretty hilarious?

Michigan’s Medical Marijuana law, MCL 333.26424, details all sorts of specifics for those who want to grow, sell, or use medical marijuana.  The part that has come up the most in my line of work is section c, which states:  “A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

The statute’s language is lenient on the person using or growing medical marijuana, and is stringent as far as the amount of proof that the other parent has to provide to show the minor child is likely to be harmed.  There is nothing in the law that prohibits children from being around your stash or plants either, which is a bit unnerving when you consider all the other safety precautions we readily install in our homes to protect children – cabinet locks and safety knobs for doors, baby gates and socket covers.  Besides, what is “unreasonable danger” anyways?  Just because something is legal doesn’t mean it’s a good idea to be engaging in that activity around your children.

A qualifying patient cannot, however, possess more than 2.5 ounces of marijuana, and a “caregiver,” a/k/a person who grows the marijuana, can have up to 12 plants per person that he or she supplies.  If you follow these guidelines, and you’ve got a registry identification card, the police can’t arrest you and they have to presume that the drug is being used for medicinal purposes.  If you’ve got a football field sized greenhouse growing, then you have some ‘splaining to do.  You’re most likely going to be arrested and it’s on you to prove it’s legitimate. 

So if your child’s father or mother doesn’t follow the guidelines, doesn’t have a card, and is just growing weed to enjoy life a little more, I’d say that parent is simply a drug dealer/user and you can attempt use this information against him or her in court with respect to parenting time or custody.  The specifics of the “growing room” can be a factor to consider too, as the law does require the plants to be kept in an “enclosed, locked facility.”  (Common sense would say you should lock that up anyways if it’s your livelihood).  MCL 333.26427 sets forth things you can’t do while using marijuana, and where you can and can’t possess and smoke it.  But what are the chances that you’re going to “catch” your child’s father or mother driving while high or entering school property with weed in their pocket?  I’d say slim.  It’s not going to be easy to disturb someone’s custody or parenting time rights if they smoke or grow marijuana within the guidelines.

My concerns are that too many people are going to hide behind this law to legally continue their abuse of marijuana without fear of repercussions.  In my opinion, exposing your children to this type of excuse can have dire moral consequences.  However, there are legitimate uses for this drug and for some people, this is the last option to alleviate their pain and illness.

I suspect that litigation in family law court surrounding the medical marijuana act will be on the rise.  After all, the marijuana business is growing.

Courtesy of Jackson County Legal News, 7/4/11, Vol. 47, No. 59

Wednesday, June 8, 2011

Adopting step-children creates an 'instant family'

Have you ever heard of an “instant family?”  If not, I’m happy to share.  An instant family is formed when a person marries someone who already has children – essentially the non-parent of the two spouses has an instant family of step-daughters and/or step-sons.  Some of these transitions are wonderful and the new step-parent has a great bond with the children.  Of course, it’s expected that there will still be the occasional “You’re not my mom!” and my personal favorite – the silent treatment.  (As an aside, that tactic never really got me anywhere.  I think parents are more than happy for their kids to stay quiet for a while.  I know my husband would pay good money to see that happen in our relationship.)

So if you really love your step-kids, to the point of wanting to adopt them, you may be able to make that idea of a nuclear family a reality.  If the biological mom or dad voluntarily consents to the adoption, you’re really quite lucky, because most people will not agree to a complete severance of their parental bond. 

Michigan statute MCL 710.51(6) provides for the terms and conditions of a step-parent adoption.  The proposed new mom or dad must be married to the parent who has legal custody of the children.  Some courts require that the parents be married for a certain period of time, for example, 6 months or 1 year, just to ensure that the couple is serious about staying together.  The biological parents can either be divorced or never married to each other.  If they were never married, then the dad must have acknowledged paternity, or if he’s considered a putative father, he has to have formed a custodial relationship or supported the child.

Let’s say the bio dad or mom won’t agree to the voluntary termination of his or her rights.  Conveniently, the court can do that for him if two conditions are met:  1)  despite being able to do so, the non-custodial parent failed for two+ years “to provide regular and substantial support for the child” or didn’t comply with a support order, and, 2)  the non-custodial parent hasn’t really visited or communicated with his kids for two or more years, even though he had the ability to do this also.

The two years tolls backwards from the date the step-parent files the petition to adopt the children, but the court can look at other periods of time in addition to those two years.

If the step-parent succeeds in adopting the kids, he becomes the children’s parent in every sense of the word.  If the couple gets divorced in the future, then the “new” mom or dad has the same right to fight for the children for custody and parenting time as if they were biological children.  Child support will still be calculated and both parents are fully expected to financially care for their children, although adoption does not automatically terminate the biological parent’s responsibility of child support.  In fact, a recent Michigan Supreme Court opinion, DHS v. Beck (In re Beck), 488 Mich. 6, decided December 20, 2010, affirmed a trial court’s decision to continue a father’s child support obligation even though his parental rights were terminated.  It seems unfair in some cases, but Michigan Supreme Court opined that “even after a parent’s rights have been terminated…MCL 722.3 indicates that a court has the discretion to terminate or modify a parent’s obligation to provide support, but is not compelled to do so.”  It is fairly common, however, that the child support obligation is terminated, especially if it’s a step-parent adoption.

As a last resort, and if step-dad or step-mom fails to adopt the children under MCL 710.51(6), the biological parent’s rights could still be severed under the Juvenile Code.

It’s a pretty big commitment to adopt your step-kids, and I think it’s a wonderful idea if the situation is right.  Raising a child takes a lot of patience and effort on the part of all parents involved, and the child can benefit immensely from the support of a step-parent, whether he or she adopts the child or not.  Don’t expect that support and love to automatically end the door slamming and curfew breaking – that’s called being a teenager.

*The author would like to thank attorney Susan M. Dehncke for sharing some of her expertise in adoption law.

Courtesy of Jackson County Legal News, 5/26/11, Vol. 47, No. 48

Wednesday, April 27, 2011

"Playing James Bond may land a snoopy spouse in jail"

Author:  Marie E. Matyjaszek

We’ve all gone a little “007” on our significant others at some point in our relationships – checking out their Facebook friends, peeking at their cell phones or interrogating him when he comes home with glitter on his clothes.  Spouses are supposed to be able to have a trusting relationship with each other, and when there are children involved, it becomes increasingly important to be able to rely on your husband’s or wife’s word.  However, if you suspect that trust is broken and decide to dig a little deeper, think twice, because you might end up in jail.

Thirty-three year old Leon Walker of Rochester Hills, Michigan, was charged in February 2009 with a felony that could have him facing up to five years in prison – all for logging into his wife’s Gmail account.  Leon had begun having suspicions that his wife Clara was fooling around on him, and was concerned that it was with her second ex-husband, who had previously been arrested for domestic violence in the presence of her son from her first marriage.  Leon and Clara had a very young daughter at the time and he was concerned for her safety around Ex-husband #2, in addition to his step-son’s well-being (yes, it is hard to keep all the people straight in this scenario). 

According to Leon, Clara left her Gmail password next to the shared laptop located in the couple’s home, so he logged in without issue.  Emails confirmed his suspicions about the affair and Leon provided Ex-husband #1 with the emails so he could use them in court to file for custody of their son. 

Clara was apparently mad enough to make a police report, which wound up on the desk of Oakland County Prosecutor Jessica Cooper, who is ready to make an example out of Mr. Walker, charging him with violating MCL 752.795, typically used to prosecute the theft of trade secrets or identities.  Here’s where I think Ms. Cooper is trying to hang her hat – as luck would have it, Leon is a computer technician for Oakland County and according to the prosecution’s theory, has the plethora of skills needed to hack into computers with ease, and aside from his wife’s email, allegedly planned to break into the county’s law enforcement computer system CLEMIS.  Leon claims he was inquiring about this system in order to file a Freedom of Information Act to obtain police reports, which he eventually did, learning that no one has ever been prosecuted in this manner before in Michigan.  A January 31, 2011 article by the Detroit Free Press indicated that “county officials told the Free Press that an internal investigation found that Walker…never made such an attempt.”

Clara has alleged that Leon, who is now Ex-husband #3 (they were divorced in December 2010), did all of this to gain favor in front of their judge and win custody of their daughter.  Some of the many factors a court must examine when determining custody are domestic violence, regardless of whether or not that particular child witnessed the incident, the moral fitness of the parties, stability of the proposed homes, and everyone’s favorite – the catch all – “[a]ny other factor considered by the court to be relevant to a particular child custody dispute.”  If I was Leon Walker, I’d be bringing this affair to the attention of the court as well based on the history of the person with whom Clara had the affair.  And speaking of the affair, why isn’t Clara being charged with adultery?  If we’re going to through the book at Leon, let’s consider the fact that Clara isn’t exactly coming to the table with clean hands.

In my opinion, Leon’s guilty of nothing other than being a concerned parent and nosy spouse.  The parties lived in the same home at the time of the alleged crime, it was a shared laptop that both clearly had access to, and HELLO – Clara left her password next to the laptop.  I would say this is akin to the gracious “in plain sight” rule the police are allowed to follow.  I suppose that there should be the caveat of mentioning that this is Leon’s version of the story of course. 

The Walker saga seems like a plot conjured up by the writers at “As the World Turns,” but its outcome could have a tremendous impact on the legal community, particularly those of us that practice family law.  Of course rights of privacy exist, but to what extent do they apply in a marriage?  I attach Facebook posts and emails to pleadings regularly to help make my case, and in some instances, they are quite helpful.  Now I’ve got to be concerned about how my client came about possessing those tidbits of information too.  Maybe it’s about time for me to brush up on my criminal law.

Courtesy of Jackson County Legal News, 4/18/11, Vol. 47, No. 37

Sunday, April 3, 2011

Defaults: Delaying the inevitable is not a good idea

Author:  Marie E. Matyjaszek

Filing a default in a case is one of my favorite pastimes, only second to receiving sparkly gifts. Defaults can be entered for a variety of reasons, but the most common is the defendant’s neglect to plead his case. When a divorce is filed, the defendant has to respond to the complaint within a certain period of time after he or she is served with the initial pleadings. If served in person, he only has 21 days from the date of service, and if he is served via snail mail, an answer must be filed within 28 days from the date of service being acknowledged. Not answering the complaint can mean that a default will be entered, which effectively terminates the defendant’s right to participate in the divorce proceedings, including a trial. A default judgment of divorce could be entered, with its terms being decided solely by the plaintiff. If this happens, you do still have options – it’s not as bad as the despair you feel when you have large dogs and look at your backyard after the snow melts.

Let’s say you were lazy or didn’t read the fine print on the summons, which provides you with an ominous warning about the perils of not answering the complaint. As an attorney, I occasionally get a phone call from a colleague asking for me to voluntarily set aside the default that was entered in that particular case. Depending on how far along the case is, I may agree to do so, knowing full well that I could be on the other side one day, asking that attorney to do the same for me. And the chance of a judge setting aside a default during the infancy of the case is a lot higher – most courts would rather have both sides be able to plead their case in order to ensure an equitable outcome.

However, if the divorce is close to being finalized, has been finalized with a default judgment already entered, or my client is adamantly against setting the default aside, the defendant or his new attorney can file a motion with the court to set aside the default and/or the default judgment. In order to successfully do so, good cause must be shown and there must be “an affidavit of facts showing a meritorious defense.” See MCR 2.603(D)(1).

Good cause can mean that the defendant has a viable excuse as to why he failed to answer the complaint, that there was something wrong with the proceedings, or it would be extremely unjust to keep the default in place. If a judgment has not been entered yet, a personally served defendant must file to set the default aside before the judgment enters. When a default judgment has already been entered, the defendant only has 21 days from entry of that judgment to file his motion to set it aside.

As an attorney, I realize that any default judgment that I enter will be carefully reviewed by the court because it has an obligation to ensure the judgment isn’t blatantly unfair. Some people think that if the defendant doesn’t care enough to file an answer or otherwise plead his case, then that person has whatever it is coming to him. The reality is that a court can actually refuse to sign a default judgment that it finds inequitable, ensuring your client is going to be really unhappy, and your reputation as an attorney is likely going to be questioned anytime you go in front of that same judge. It’s best to keep your client’s vindictive side in check when drafting a default judgment.

It certainly makes it a lot easier to finalize the judgment when the defendant is defaulted, but if you’re the defendant, delaying the inevitable isn’t the best idea. If you’re on the other side of one of my cases, however, I don’t mind if you keep quiet.

Courtesy of Jackson County Legal News, 3/7/11, Vol. 47, No. 25

It's the month to sing: 'Reunited and it feels so good...'

Author:  Marie E. Matyjaszek

Love is in the air during the month of February – red and pink colors are plastered in every store window and heart-shaped jewelry abounds at the mall. Some people claim to love being in love, and this could be why they entertain ideas of setting aside their divorce action and reconciling with their husband or wife.

At times, there seem to be a plethora of reasons to go forward with the divorce action – he can’t pick his underwear up off the floor, you trip over screwdrivers and tools that you don’t even know the name of, let alone would ever get permission to use, and he shrinks all of your clothes. There are solutions to some of these problems – let your dogs play tug-of-war with all of his belongings that live on the floor – the financial hit of replacing his wardrobe provides significant incentive to pick up after himself. But the benefit of having a partner to help raise the kids, listen to your problems, provide a second income and health insurance are also strong reasons to stay in the marriage. If you lack culinary skills like I do, eating home-cooked meals on a regular basis helps too. And, despite all his faults, you still love the guy.

If you’ve started a divorce action but decide to give the relationship another go, you can dismiss the action with little difficulty. Assuming you did not yet serve your spouse with the divorce papers, you can file a notice of dismissal and cross your fingers that he never finds out. It’s much more common for the divorce to have been ongoing for a few months and the parties then decide to attempt reconciliation. A stipulation and order dismissing the divorce action would be signed by all parties and the judge, and entered with the court. Voila! Let the reconciliation begin.

In Jackson County, it is acceptable local practice to add in a provision allowing the parties a time period within which they can re-file the divorce action without having to wait the full statutory waiting period of 60 or 180 days, and without having to pay the divorce filing fee again. Other counties may allow for different provisions or may exclude these all together. This “grace period” provides some with peace of mind that the process can be expedited if it doesn’t work out, but others believe it’s setting the couple up to fail.

Just because I’m a divorce attorney doesn’t mean that I want couples to break up. Both parties making a concerted effort to sustain their relationship is why “every kiss begins with Kay.” Then again, if they all did that, I might be out of a job.

Courtesy of Jackson County Legal News, 2/7/11, Vol. 46, No. 18

Annulments: 'Where's that time machine when you need one?'

Author:  Marie E. Matyjaszek

We all have things in life we wish we could do over – actions, comments, clothing choices (think parachute pants) – but for most of us, it’s virtually impossible to rewind the clock. The law can provide you with the ultimate mulligan in the form of an annulment if you meet the strict criteria. Legal annulments are not the same as an annulment from a church – for example, if you obtain an annulment from the Catholic Church, the courts do not recognize this as valid.

In Michigan, two statutes, MCL 552.1 and 552.2, control the ways you can receive an annulment. MCL 552.1 requires any of the following to be met – the married couple is related (start the Kentucky jokes now), hubby or wife is already legally married to someone else (think “Sister Wives” if that guy tried to legally marry all of those women) or one of the parties is incapable of entering into a legal marriage contract. All of these reasons automatically void the marriage. MCL 552.2 provides for an annulment if one of the “spouses” is under the age of legal consent, the consent to marry was obtained by fraud or duress and there was no subsequent cohabitation of the parties.

Based on health reasons alone, it makes sense that you shouldn’t marry someone you’re related to, but the law in Michigan also prohibits marrying your mother-in-law and step-son as well. The prohibition extends past blood relationships and carries over into a relationship based on the blood relative of your spouse – see MCL 551.3 and 551.4. If you’re already married to someone else, any marriage after this is void. However, if you’re dead-set on marrying your cousin, you can get hitched in a state that permits this and then drive back to your home in Michigan, where the marriage will be recognized as valid.

Marriages where the person is incapable of entering into a marriage contract are also void, unless that person later becomes capable and chooses to continue living as husband or wife with his or her spouse.

The age of consent in Michigan is 18, but if one of your parents or legal guardians consents to the marriage, you can get married at age 16 or 17, as long as that consent is in writing (I don’t know about you, but I was far more interested in getting my driver’s license at 16 then obtaining a ball and chain). And, if you have really great parents, with both sets consenting, you can get married under 16 years of age.

Fraud or duress can also annul a marriage, with examples being telling the man he is your child’s father when you know he’s not, if you are a homosexual but do not tell your husband or wife this before you marry him or her, marrying so you can stay in the United States and not be deported, or if you’re drunk or on drugs when you get married (I think this happens a lot in Vegas). If you have no intention of consummating the marital relationship, this can also be grounds for annulment.

Kids born of an annulled marriage are still recognized as legitimate, and the courts go about dividing property, awarding custody and child support pretty much the same as in a divorce. Michigan’s statute for spousal support does not provide this right for those whose marriages have been annulled, and if the marriage was annulled due to fraud or force, the parent who was wronged must be awarded custody of the children.

Everybody makes mistakes in life and it’s only appropriate that the law would provide relief for some of those errors in judgment. Of course, if you’re Britney Spears, Zsa Zsa Gabor or Renee Zellweger, you’re not going to completely erase your now-invalid marriage because it’s been plastered across tabloids for months. Luckily, Jay Leno won’t be talking about us common folk on the late night shows, and there’s a good chance that an annulment would be a mere blip on the radar screen of scandals, reduced to non-planetary status like Pluto.

Courtesy of Jackson County Legal News, 1/17/11, Vol. 46, No. 15

Domestic quarrels can require courts to consider personal protection orders

Author:  Marie E. Matyjaszek

Personal Protection Orders, or PPOs, that are issued between people who have some sort of domestic relationship – whether they are dating, married, have a child in common, live together, or have had a relationship in the past – are under the exclusive jurisdiction of the family courts. Non-domestic PPOs are granted as well, but those are not the focus of this article.

Some PPOs are a “he said-she said” situation that may be based on fabrications created by an angry spouse; others are absolutely necessary to protect an individual’s life. The problem lies in the fact that it’s often very difficult for a judge to gamble on whether a denial of a PPO won’t lead to a person being seriously injured or even worse. Because so much domestic violence goes unreported, there often aren’t police reports to corroborate the verified statement that accompanies the PPO paperwork, and judges may err on the side of caution and issue the PPO.

PPOs can contain various prohibitions, some of which are contact with the petitioner (whether mail, phone or other types of communication), entering onto property, threatening to kill or injure the petitioner, and purchasing or possessing a firearm (which really irritates people during hunting season, but more importantly can jeopardize employment if they are required to carry a gun).

PPOs can also affect one’s rights to see his minor children, in that a PPO can prohibit the offender from taking the children unless another court order expressly allows for parenting time and that order does not violate the terms of the PPO. The respondent may also be denied access to legal records for the child if those records reveal the whereabouts of the petitioner. Michigan Court Rule 3.706 requires that the court issuing the PPO consider the custody and parenting time rights of the person against whom the PPO is issued, and whether or not restricting those rights is necessary to keep the petitioner and minor children safe. The PPO trumps any “existing custody or parenting time order until the personal protection order has expired, or the court having jurisdiction over the custody or parenting time order modifies the custody or parenting time order to accommodate the conditions of the personal protection order.”

While it is not always the case, most of the PPOs that I have seen are against the husband, with the wife as the person asking for the protection. If a divorce client comes to me with a PPO already in place, the immediate problems are obvious – he can’t go home if the other spouse resides there, so he has no access to his personal belongings and property, not to mention the fact that he has to find a place to live, and he can’t communicate with his spouse, so unless the kids are with him, he may have no ability to communicate with or see the kids either. Unfortunately, parenting time exchanges can be an opportunity for the respondent to intimidate or threaten the petitioner, which can lead to the threatened spouse refusing to cooperate with parenting time orders if a PPO is in place.

In my opinion, PPOs can be one of the most complicated issues in a divorce or custody case – they immediately paint a dark picture of the person against whom the PPO is issued. This negative image spills over, directly impacting his or her perceived ability to parent and take care of the kids.

I normally try to set up a date and time for my client to come to the marital home and retrieve some of his items, with a friend or peace officer present to avoid any conflict or further he said-she said incidents. If there is a legitimate basis for the PPO to have been issued, my best option is to ask that the PPO be set aside and a civil restraining order enter in its place, which can also place restraints on the parties’ behavior. It also helps remove the negative association connected with a PPO, and it would not be a criminal violation if the civil restraining order were violated (although you can bet that my client might wish he was in jail after I got off the phone with him.) Often times a civil restraining order will automatically allow the victim to ask for the original PPO to go back into effect if the civil order is violated.

If the PPO is truly unnecessary, a motion should be filed to terminate the PPO, which must be done within 14 days after service or actual notice of the PPO if it was issued “ex parte,” meaning it was issued without a hearing/notice to the person against whom the PPO was granted. If the court terminates the PPO after the hearing, it can help show that the petitioner may have been trying to provide the court with a negative image of the other party.

Separation and divorce lead to emotional roller coasters, with people acting in a manner that is unexpected and unexplained. Like any other type of legal action, PPOs may or may not be necessary, and it’s critical for the judge and the person requesting the PPO to thoroughly examine the reasons behind wanting one issued. By doing this, it helps ensure the legitimacy of PPOs granted, which is perhaps the most important outcome for those in need of protection.

Courtesy of Jackson County Legal News, 12/20/10, Vol. 46, No. 11

Grandparent rights analyzed: 'If Mom and Dad say no, ask Grandma!'

Author:  Marie E. Matyjaszek

Grandparents are usually a kid’s best defense against the ridiculous rules moms and dads establish, because nana and poppa just can’t say no to that adorable face. They played an important role in my life, although their excitement over the homemade gifts I crafted for them led to an inflated ego about my potholder-making skills. Walking the few blocks to Telegraph Road to load up on sugar at the Dairy Queen (with grandma’s blessing and money of course) still makes me smile.

Michigan law provides for grandparent’s rights under a limited basis. Under MCL 722.27b, a velour-sweatpants clad grandparent can ask for grandparenting time if any of the following circumstances are met: if a divorce, separate maintenance, or annulment action is pending or has been finalized between the child’s parents; one of the parents of the child is now deceased; if the child’s parents have never been married, don’t live together and paternity has been established; if legal custody of the minor child has been awarded to someone other than the parent, or if the child does not live with a parent; or if the grandparent has established a custodial environment for the minor child within a year prior to starting the grandparenting time action.

When grandma files her motion with the court for parenting time, she has to prove by a “preponderance of the evidence” (a fancy way of saying the evidence clearly supports one side more than the other) that the denial of grandparenting time creates a “substantial risk of harm to the child’s mental, physical, or emotional health.” If she can’t prove this, the court will deny the motion and grandma’s back to fattening up the neighbor kids instead.

The court gives significant deference to whether or not the parents of the child want their bundle of joy spending time with his grandparents. The law provides that if the parents are deemed to be fit, and both sign an affidavit stating that they do not want Junior to have grandparenting time, the court must dismiss the grandparent’s motion or complaint. Absent cause, a grandparent can only file a motion once every two years. Because of the rarity of grandparent’s rights, I would recommend that a qualified attorney assist any grandparent seeking parenting time to ensure that they don’t waste his or her once every two years opportunity if there isn’t enough evidence to successfully go forward.

If the grandparent has met the burden, the court must then decide if it is in the child’s best interest to have an order for grandparenting time in place. Ten specific factors are set forth in the statute for the court to consider, such as the emotional ties between the grandparent and child, any history of abuse, the health of the grandparent, and the child’s preference (if he’s old enough, because we all know any 3 year old is going to say he wants to go to the land of sugar and “Of course honey, you can have that!” Actually, that sounds really good to me and I’m perpetually 29 years old.)

Assuming the court finds that the grandparents have proven their case by a preponderance of the evidence, the court can also refer the matter to a mediator, or the Friend of the Court, in an attempt to resolve the matter within a reasonable time. Once an order is in place, new or previously undisclosed facts have to come to light to allow for a termination or modification of the grandparent’s parenting time.

Most of us can’t imagine not being able to see our grandparents, even if they did drive a station wagon with the front license plate “Let me tell you about my grandkids!” Grandparents can have an amazing and positive impact on a child’s life in so many ways. Despite my vivid memories of pink flamingos and hand-painted wooden depictions of a gardener’s backside dotting my grandparent’s front lawn, they remain unseen at my house. My neighbors are thankful that this trait skipped a few generations.

Courtesy of Jackson County Legal News, 11/15/10, Vol. 46, No. 6

'Come Out, Come Out Wherever You Are!' - Hiding assets in a divorce

Author: Marie E. Matyjaszek

When a divorce action is filed, suspicions of a spouse’s deceit rack up faster than Lindsay Lohan’s probation violations. Don’t believe that your wife’s incessant shredding of documents unequivocally means she is hiding loot – I shred my bank statements every few years so I don’t end up on the TLC show “Hoarders.” But, if you haven’t been in control of the finances, or you’ve been kept in the dark about major decisions, it doesn’t hurt to look into it.

To be honest, your wife has always been sneaky – it took you a good five years to find her hidden stash of designer shoes, and you haven’t ever been able to locate those really nice cufflinks from your ex-girlfriend once she found out who they were from. So, as you go through the discovery process during your divorce, it’s not that surprising that several of your bank accounts are missing substantial deposits.

You tell your lawyer that she obviously hid the money in an attempt to remove it from the marital estate. Your attorney issues subpoenas and conducts depositions like it’s his job (oh wait, it is), but you just can’t get the definitive proof you need, so you reach a settlement and enter the judgment. Luckily for you, your new girlfriend has a love of all things Neiman Marcus and wants nothing more than to help you find the money. She hires the best PI and finally locates your ex-wife’s divorce cash stash. Vindicated, you walk around with that “I told you so” expression on your face for weeks. What can the court do now that you’re divorced?

The preeminent case with respect to hidden assets is undoubtedly Sands v Sands, 192 Mich App 698 (1992), aff’d, 442 Mich 30 (1993). Sands provides the courts with the ability to award all of the hidden asset to the aggrieved party, and none to the party who concealed it. It is important to realize that this forfeiture is not automatic, but it can be warranted in cases if it provides an equitable division of the marital property under the circumstances. Sands’ holding should make a shifty spouse think twice before throwing a blanket over her secret divorce cash stash.

If your wife dumped money into an account owned by her Ď‹ber-close best friend (think Oprah and Gayle), and the court finds that her BFF acted in concert with her to hide it, Gayle’s account could be divided even though neither of the spouse’s names are on the account.

Settlement agreements that are incorporated, but not merged, into your judgment of divorce provide you with other recourse – contract law. Pursuant to Grace v Grace, 253 Mich App 357 (2002), the aggrieved spouse can sue his or her ex (also known as Mr. or Mrs. “Money? What money?”) civilly for fraud, which is separate from the divorce action. The civil action also comes along with a side order of the right to a jury trial, not to mention a little more cha-ching in the form of statutory interest. However, if the judgment of divorce merges the property settlement agreement, the only recourse for your post-judgment fraud woes is MCR 2.612. Note that this court rule requires you to file your motion for relief within one year of entry of judgment.
It’s amazing how quickly trust disintegrates between spouses when a divorce is filed, and we attorneys hear a lot of “I should have had control of the checkbook” and “Why didn’t I go to the investment meetings too?” A good attorney will tell you that hindsight is 20/20, but a great attorney will tell you to stop looking for the cufflinks.

Courtesy of Jackson County Legal News, 10/25/10, Vol. 46, No. 3

'Moving on up': Pitfalls await divorced parents when out-of-state move contemplated

Author: Marie E. Matyjaszek

It seems like everyone wants to move out of Michigan lately. We only have two seasons – winter and construction – and you get tired of both fast when you’re out of work. Thinking of your two kids, you found a great school district and condo in Florida, complete with an association playground and pool. All of your job leads are out, and the offers should come pouring in any minute now. As your excitement builds about all of the opportunities, you mention it to your ex-husband during the parenting time exchange, trying to play up all of the positives as you interpret his facial expressions. Wait for it, wait for it…nope, he’s not going to just agree to let you move the kids out of state. Time to consult your friendly family law attorney.

The great state of Michigan has enacted a specific statute, MCL 722.31, commonly referred to as the “100 Mile Rule,” which provides the court with five factors to consider when a parent wishes to relocate their children more than 100 miles away from what was the children’s legal residence at the time the court action was started. This same rule applies if you want to move the kids out of the state of Michigan, even if that new location is less than 100 miles away. The court must consider each of the following factors with the child’s interest – not yours – as the primary focus:

1) Does the move have the capacity to improve both the child and moving parent’s quality of life?
2) How well has each parent complied with and used their parenting time ordered in the past, and is the moving parent relocating in an attempt to make the other parent’s exercise of parenting time more difficult?
3) To what extent the court is satisfied that the parent who is not moving can have a modified parenting time schedule that will allow for a good relationship between both parents and the child, and whether or not the parents will actually comply with the new schedule.
4) Is the parent opposing the move seeking to do so because he or she wants a financial advantage with respect to his or her child support obligation?
5) Is domestic violence a factor in the move? This can be considered whether or not the minor child has witnessed it or if the child was actually the victim.

Like most everything else in life, exceptions to the rule do exist. If your ex approves the change, you can make the move, but make sure it’s in writing before you pack up the van and go. If you have sole legal custody of your children, the court does not have to consider any of the factors in MCL 722.31(4). While Michigan Court Rule 3.211(C)(1) mandates language in a custody order stating that the court has to approve an interstate move, the court rule doesn’t require anything other than compliance with MCL 722.31 (See Spires v. Bergman, 276 Mich App 432 (2007)). That statute specifically provides in subsection 2 that the section “does not apply if the order governing the child’s custody grants sole legal custody to one of the child’s parents.”
If there is a threat of domestic violence, the victimized parent can actually move to a safe house while awaiting the court hearing. The other two exceptions to the rule are if you already live more than 100 miles apart, or if the move is actually making the distance between the two parents shorter.

With fewer households having a stay-at-home mom or dad, both parents tend to share the parenting responsibilities equally. Those divorced couples who have joint physical and joint legal custody face an additional burden if one of them desires to move 100 miles away or to another state.

In addition to the factors discussed above, the court must also take into account the best interest factors set forth in MCL 722.23, as the move would change the established custodial environment. The best interest factors also force the moving parent to prove by clear and convincing evidence that the great new home in Florida is in the child’s best interest.

Remember that the orange barrels may not be your only roadblock to moving out of state with the kids. Most of my clients face heavy opposition from their ex when a move is at stake, and motions to change custody by the party who’s not moving are common. Don’t assume it’s going to be a slam dunk and rush to gas up the tank – you may have to turn around for a reason other than the kids fighting.

Courtesy of Jackson County Legal News, 9/13/10, Vol. 45, No. 49

Conclusion of Top 10 Divorce Commandments

Author: Marie E. Matyjaszek

I’m sure you’ve been eagerly awaiting the last 5 of my 10 Commandments of Divorce, so here they are.

6. Thou shalt focus on the big picture. Temporary orders are just that – temporary. The provisions contained within them may be identical to what’s in the final Judgment of Divorce, or they may share nothing in common. A lot of clients may have to “prove” themselves during the divorce in order to achieve a more favorable outcome. Maybe he wasn’t the most involved dad or she was the workaholic mom. People are hesitant to believe that others will make a permanent change, so you may not have the extensive parenting time schedule that you want in the beginning. But if you faithfully exercise what you are given in a temporary order and try to be a better parent, chances are good that your spouse or the court will reward you for your actions. You may need time to secure a suitable residence to accommodate the children, which can also change your final judgment. Given time, people often calm down and are more likely to hear your side and consider meeting in the middle.

7. Thou shalt put thy children first. If you have children, no matter what age they are, they will be affected by your divorce. Having to pay any type of support can be a hard pill to swallow, and while child support is for the children, some payers believe they should be able to dictate what it is spent on. Keep in mind that items like the mortgage payment, utilities and fuel are for the benefit of the children. The kids need a roof over their head, electricity, heat, and a mode of transportation to and from all those recitals and soccer games. It is not mandatory that the payee only use it to buy Sponge Bob pajamas and Fruit Loops.

Spend your parenting time with your children and don’t miss a parenting time visit because you want to hang out with Mr. or Ms. Right Now. If your behavior doesn’t benefit your children, don’t do it.

8. Thou shalt follow the agreement and court order. I’m not as good of a problem solver when it’s my client that creates the problem. Sometimes the court may order something that you don’t want to follow, like parenting classes or changing your support amount, but you’ve got to do it. Similarly, if you and your spouse came to an agreement together, and incorporate that into a court order, you have the same legal obligation to abide by it. In my opinion, breaking an agreement can look worse because you voluntarily entered into it and then chose to toss it aside. Not complying with a court order can subject you to contempt, attorney fees for the other side, court costs, and at times, jail.

9. Thou shalt have reasonable expectations. If attorneys had a magic wand that could erase all of your problems, we would use it (but you wouldn’t want to pay the fees for it). We can’t turn back the clock and instead are often faced with the dilemma of cleaning up a mess we didn’t create. I can only work with the facts that are in existence at the time a client presents them to me. Damage control is very frustrating to both the attorney and client and it’s important for the client to have reasonable expectations as to how fast the cleanup on aisle 4 can be accomplished. Some things are never going to smell like roses, but it’s not always impossible for them to resemble the fake ones you can buy at 7-11.

10. Thou shalt look on the bright side. You’re not going to look back at all aspects of your divorce and laugh, but you will be able to make a joke out of some of it. Things will get better even if it takes a while. Everyone going through a divorce is allowed to throw a “pity party” and feel lousy, but try not to make it your permanent attitude. Don’t let your soon-to-be ex dictate your future happiness.

Reality is not always sunshine and lollypops but it is where most of us live. If divorce has forced you to sell your dream house and move into an apartment or condo, the sooner you accept this the faster you can get over the loss. Who knows, maybe your new apartment complex will have a really cute pool boy.

My 10 Commandments are not nearly as important as the other well-known set of rules, so it’s a good idea to listen to them both. Luckily, if you break any of my commandments, it won’t change the direction of the elevator when you reach the other side.

Courtesy of Jackson County Legal News, 8/2/10, Vol. 45, No. 43

Top 10 Divorce 'Commandments', Part 1 of 2

Author: Marie E. Matyjaszek

There are things I wish all my clients would do to make their divorce easier on everyone, including me. Since most lawyers have a godly view of themselves (excluding me of course), it’s fitting to share the first 5 of my 10 Commandments of Divorce.

1) Thou shalt not put thy children in the middle. If kids are involved in your divorce – whether biological, adopted or step-children – keep them out of the adult divorce matters as much as possible. Don’t tell little Jimmy to give a note or spousal support check to his mother and don’t pump Jessica for information on your ex’s new “flavor of the week.” Let them be kids and focus your concerns on their Facebook friends instead of using them as mini-moles.

2) Thou shalt not hate thy ex. At some point in your life, you decided it was a good idea to marry your spouse. You may have even gone a step further and had children with her. So maybe she still has those last 10 lbs of baby weight 8 years later, but I’m willing to bet the only 6-pack you have now is the one in the frig. It takes two people to get married and most of the time it takes two people to cause the breakdown. I’m willing to bet that that your spouse has a less than idealistic view of you also. Try to get along civilly, if only for appearance’s sake in front of the kids. If you have minor children, rest assured you will see your ex more times than you want in the future. He’s always going to be the father of your child and she’s always going to be your child’s mother. Remember that without him or her, you wouldn’t have the most important person in your life (thank you, but no, it’s not me – I’m speaking of your child).

3) Thou shalt pick your battles. At the time, it may seem critical that you fight over your dining room table or stainless steel cookware, but what is it really worth? Let’s not forget to affix a used price tag to it also. If your battle is over a $500 piece of furniture, I wouldn’t spend more than two hours on it because most attorney fees will barely allow you to break even after that time. There have been times where I’ve literally contemplated giving a client my pots and pans just to be able to settle the case (it doesn’t hurt that I have little to no interest in cooking either). Argue over what really matters – custody, retirement, support, or larger assets.

4) Thou shalt not abuse your attorney. Most attorneys cannot and will not micro-manage their client’s lives. Divorce is an emotional rollercoaster and I understand it’s horribly stressful to split up your belongings, pets, kids and money, especially if it’s not your idea. I suggest that my clients make lists of questions or keep a journal of their concerns so they don’t lose track and forget to bring it to my attention. However, your lawyer is not going to make all of your decisions nor should he. You have to choose what you can live with. When your divorce is over, your attorney moves on and probably only remembers you if you haven’t paid the account in full. He doesn’t have to adjust to the choices made in your divorce, but you do. Ask for your attorney’s advice and guidance once you’ve calmed down and thought about the situation you’re calling him about. A lot of times the little fights work out between the parties and the savings on attorney fees will be a bonus.

5) Thou shalt attempt to settle. Control is what most people want in their lives, some more than others, but ultimately we all want to know where we are headed. If you negotiate and settle your case, you still maintain control. A wise attorney once told a client “you don’t have to like the outcome, but you have to be able to live with it.” If you go to trial, your attorney can present the best witnesses and evidence but he can’t predict what the judge will do. I normally tell people to listen to what their attorney says but if he promises you a certain outcome of your case, ignore this. The only thing we can promise is that you will be divorced at the end (unless you reconcile, so I guess we can’t promise anything).

The last 5 Commandments will be coming soon – ask anyone who knows me – I rarely run out of things to say.

Courtesy of Jackson County Legal News, 7/26/10, Vol. 45, No. 42