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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

Dating during divorce: Out of the frying pan and into the fire

Author: Marie E. Matyjaszek

For some people, waiting six months or even two months for their judgment of divorce to enter is hard, especially when they want to indulge their romantic side. Finding someone new to listen to your concerns (or more likely bad-mouth your soon-to-be ex) is such a wonderful feeling. But, the questions remain – when can you start looking for that special guy who will indulge your shoe and purse fetish? Does the court care(about the guy, not the shoes. Of course the court thinks your shoes are fabulous)? And what about the kids?

Many people assume that if someone picks up a new love interest right after the divorce has been filed, that she’s been cheating all along – and they could be dead-on. In other cases, it’s amazing what taking off that wedding band does to some people – the number of digits they get in a bar increases and friends immediately start playing matchmaker. After all, half of finding Mr. Right is timing.

As I’ve mentioned before, Michigan is a no-fault divorce state, but the court can look at fault for the purpose of spousal support and property division. The Michigan Court of Appeals has addressed dating during a divorce in a number of cases throughout the years. In Knowles v. Knowles, 185 Mich. App. 497 (1990), the Court reversed a trial judge’s 70% wife/30% husband split of the parties’ property because the husband had allegedly had an affair. However, his tryst began after the marriage had broken down, and “it was improper for the trial court to hold divorcing parties to a standard of morality or behavior appropriate for marital partners.”

Knowles was differentiated in a 2000 ruling, with the Court of Appeals stating that if a wife had begun “her relationship with the other man before [her husband] filed for divorce and before [she] vacated the marital home, the evidence was properly admissible on the issue of fault.” See Repasky v. Repasky, Docket No. 212859.

The Court has reiterated its past decisions that “ ‘[t]he focus must be on the conduct of the parties leading up to the separation rather than on who left whom.’ ” See Roberts v. Roberts, Docket No. 238610. When parties separate or file for divorce, it’s clear that their intent is to live individual lives, but not necessarily alone. This doesn’t mean it’s a good idea – regardless of how little your former man supported your Louis Vuitton habit, no one escapes a divorce completely unscathed, even if you can shop without harassment afterwards.

Take some time to make sure you’re ready to move on, and if you have kids, think of them first and choose wisely. Don’t try to make your new friend a substitute dad – this never helps any relationship. Maybe some guys like the “just add water” instant family, but most men that I know stay away from drama about the same distance that I am from cleaning the litter box.

So, the take-away message is this: You can date and live it up as a single lady once you’re separated or have filed for divorce, but unlike those amazing 4-inch stilettos, there are no refunds on a rebound boyfriend. Besides, you still look good attempting to walk in those shoes all by yourself.

Courtesy of Jackson County Legal News, 6/14/10, Vol. 45, No. 36

Friend or Frenemy of the Court: Opting in or out for support

Author: Marie E. Matyjaszek

The Friend of the Court (FOC) is a mystifying institution that people seem to either love or hate, without any middle ground. When you’re awarded child support or spousal support, you have to choose to either opt-in or opt-out, unless you are a recipient of governmental assistance, in which case the choice has been made for you – you’re in. It pretty much feels like the clock ticking down on Final Jeopardy – people are sweating under the bright lights, deciding how much they want to wager and if they’re going to risk it all, and wondering why Alex looks so smug.

Finally, time is up, and your answer boiled down to the fact that you didn’t trust your ex to pay you directly, so you’ve opted in to the FOC system. What does this mean exactly? Well, the Michigan State Disbursement Unit (read: giant support clearing house in Lansing) will attach an income withholding order to your ex’s paycheck, take out the monthly amount of support he’s supposed to pay, re-route it to the FOC of the county your case is in, and deposit it into an account of your choosing. He will also pay nominal service fees to have the FOC manage the account, which total $42 per year. Depending on how your ex is paid, the monthly support amount may be broken down into two or more separate deposits into your account each month. This has frustrated some of my clients when they are relying on that money to pay daycare or other expenses on a certain day.

If your ex falls behind in payments due to a loss of income, failure to report his employment change, or some other reason, the FOC is supposed to timely bring enforcement action when the arrearage is more than a month late. However, the ginormous volume of cases that the FOC manages makes it easy for your case to slip through the cracks, so you should always let the FOC know you’re not getting your money by filing a written complaint promptly. If your case is within the FOC system, it can also set hearings on issues like support, health care contributions, parenting time, custody, or other matters that relate to your case. The bonus is that if you don’t like the FOC ruling, you can generally appeal these to the actual judge assigned to your case and prepare yourself for round two.

The FOC offers a bevy of services that are simply too numerous to mention, and like any other governmental institution, it’s understaffed and underfunded. If you don’t want to use the FOC, you and the opposing party must both elect to opt-out of the system. Some people just don’t want everyone knowing their business – that’s usually why they’re getting divorced anyways. The biggest consequence of opting out is that you are no longer entitled to any FOC service or enforcement. If you have a parenting time complaint, or medical reimbursement issue, you have to go directly to the court which probably means you’re going to have to use your tax refund on an attorney and not that new hot tub you wanted (and you’ll get really aggravated when you see your attorney picking out his new hot tub). And, there’s no guarantee that your ex’s support is going to magically show up in your bank account when it’s supposed to if you opt to have him pay you directly.
Some judgments or orders provide that if the payer is behind a certain amount of months in support the parties will automatically opt back in to the FOC, but you have to file paperwork to do so; you can’t just show up, toss your papers to the person at the window and say “I’m in,” although I don’t doubt that this has actually occurred before.

I have to work with the FOC on almost a daily basis, and unless it’s blatantly obvious that the payer isn’t going to send those checks, I try not to influence my client’s decision to opt-in or opt-out. Everyone’s experience with the FOC is different, especially if you’re an attorney versus a party to a case. Let’s face it, I ultimately get to sit on the fence – I’m just trying to prevent any splinters.

Courtesy of Jackson County Legal News, 5/17/10, Vol. 45, No. 32

Client control: Get a hold of yourself!

Author: Marie E. Matyjaszek

You need them to pay your bills, fund your trips and otherwise allow you to “live the dream.” No, not your parents. Clients. Without them, you wouldn’t have a career, wouldn’t be able to practice law, wouldn’t be the guy with a fancy law degree and mountains of debt to show for it. So, you have to keep them coming in like a steady stream, but you don’t necessarily have to agree with or like everything they do. At times, it seems that your advice goes in one ear and out the other, with the client doing what he or she wants anyways.

The worst part of my job is having to tell a client what they need to hear, not what they want to hear. They are already in a horrible situation, dividing up their belongings, arguing over the kids, and hurting because their marriage didn’t work out. With all of this going on, the last thing they need is me telling them they did something wrong.

When a client repeatedly ignores my advice, or better yet, a court order, it goes downhill quickly. The other attorney starts calling me constantly, updating me on the problems, threatening to file this motion and that motion, asking for attorney fees, trying to force a psychiatric evaluation of my client, blah blah blah. They are the same threats I use when the shoe is on the other foot; I’m familiar with the consequences of people’s actions.

Just when you think your client has “seen the light,” undoubtedly due to one of your amazing lawyerly speeches, you start to get the same phone calls the next day. No lawyer wants the reputation of not having client control – it makes you look incompetent and usually results in the other side running to court before trying to resolve an issue amicably.

I can only protect the client from so much fallout; after a certain point, there runs a good chance that my representation of him will end. There really isn’t much of an option when the client doesn’t care about what I say, and we all have other clients that will listen and deserve attention being paid to their cases.

As soon as a client starts to behave inappropriately, be as clear and stern with him as possible – he may be too ashamed to admit fault, but most clients won’t do it again. If the behavior doesn’t stop, it’s always helpful to remind them of the monetary consequences – the more they misbehave, the more motions are filed, attorney fees are won, and your time spent trying to dig them out of that grave is adding up fast. You may have to rein the client in a few times – lawsuits don’t bring out the best in people and rational thinking comes a bit slower during the proceedings. Putting your advice in writing, in particular the warnings, is a good idea in case he decides you caused his loss in court.

Of course, you can’t discount the possibility that your client simply won’t listen to you – if that’s the case, it’s time to get out of the matter. If the trust has broken down, the lawyer-client relationship is no longer symbiotic and the rest disintegrates quickly. Chances are that at this point, the client thinks that he’s doing the right thing and won’t listen to you no matter what you say. After all, since lawyers never admit that they’re wrong, why would we expect our clients to behave any different?

Courtesy of Jackson County Legal News, 4/19/10, Vol. 45, No. 28

Pets in divorce: Is 'Snowball' man's best friend or woman's best friend?

Author: Marie E. Matyjaszek

Most days I prefer the company of my pets over humans – let’s face it, they don’t talk back and love you unconditionally. It’s not surprising that pet products and care are fast growing industries, especially since people are waiting longer to get married and have children – their pets are becoming increasingly important and considered a part of their family.

As a divorce attorney, I am seeing more parties wanting the ownership of their pets specified in the divorce judgment, and several clients have considered the “custody” of their pets to be a deal-breaker. It is not uncommon for my client to make it clear in the initial meeting that he can’t have Snowball or she doesn’t deserve to have his Buddy. As a huge animal lover and pet owner myself, I know what it means to have that ball of fur greet you after a lousy day at work or a fight with your husband over his extension of time for your diamond upgrade.

The current law on awarding pets in a divorce is simple – they are considered chattel, divisible like all other types of property. If the dog was yours before the marriage, then chances are that he is premarital and yours to keep. Receiving the pet as a gift also helps your case to retain him and all of the chewed furniture too. However, there is a push to treat pets as a separate category called “living property.” While in school at Michigan State University College of Law, I took several classes taught by Professor David Favre, who continues to educate other would-be lawyers at MSU. Professor Favre defined the term “living property” in one of his papers as “physical, movable living objects – not human – that have an inherent self-interest in their continued well-being and existence.” Using this train of thought would encourage the Courts to look at the pet as more than just property, a living being whose best interests should be considered before awarding him to one party or the other.

Who walked the dog the most and took her to the vet when she was limping? Who cleaned that nasty cat litterbox without complaint? Does the animal seem to favor one “parent” over the other? I think it’s important for the Courts to view animals beyond property because the treatment that they receive is critical to their well-being and health. You can’t randomly award a dog to one party just like you could settle the dispute over a television and expect it to have the same outcome – set it up in the new home and leave it for the owner to enjoy. The Courts should consider the emotional attachment of the pet to that particular owner, and the attachment of the owner to the pet.

Because there is no set case law defining the “best interests” of a pet like there is a child, I would advise amicable divorcing parties to try to come to an agreement on the animal on their own since the Court doesn’t have specific guidelines to follow. I’ve seen divorces where the custody of the pets is effectively broken down into legal and physical custody, where both parties have to agree on operations, inform the other of vet appointments, and decide where the dog resides most of the time. Parenting time is being set forth in Judgments, specifying who gets to see the pet on what day and for what length of time. Monetary support for the animal, including regular needs such as food, vet care and toys, are being shared between the divorced couple at an increasing rate.

If you’ve always treated your pet as a member of your family, the Courts should too. Parties will surely fight over who gets the beloved dog or cat, and in some divorces, Buddy may end up being awarded to one side or the other if they can’t come to an agreement. If that’s the case, I’d advise the winner to avoid stepping on any flaming brown bag that appears on her doorstep – just pour water over it.

Courtesy of Jackson County Legal News, 3/29/10, Vol. 45, No. 27

'It wasn't me': The role of fault in divorce

Author: Marie E. Matyjaszek

Michigan is a no-fault divorce state. That means that you can wake up tomorrow, decide you don’t like the color of your husband’s eyes and file for divorce. While you don’t need a “fault” in order to start the divorce proceedings, some faults do come into play during the course of the divorce. So what faults can you punish your spouse for in the divorce? Do affairs and questionable behavior really matter in the Court’s eyes?

Every case is different, which is something of a mantra that my clients hear repeatedly during their proceedings. But I still can’t stress it enough – your case is going to be considerably different from that of your co-worker and fellow cubicle dweller Lucy (who has already established in her mind that no one’s divorce could be worse than hers). Even if this is your first or sixth divorce (yes, I’m serious), the circumstances you find yourself in usually vary greatly from your past experiences or those of your friends.

Fault of a party can be looked at by the Court in determining spousal support and property division; in fact, one of the spousal support factors the Court considers is the past relations and conduct of the parties. However, before you start airing your husband’s dirty laundry in a public courtroom or pleadings (let’s not forget anyone off the street can go into the courthouse, hand over her car keys and peruse your entire public divorce file), you need to think about whether or not you created any of those stains. Trust me, the mud-slinging rules in divorce are a free-for-all and often end up like a WWE match – but there are no attractive ring girls in bikinis parading around to lighten the mood. Considering most of my colleagues are male, this is a major disappointment.

There are some cases where I can honestly say “it’s mostly his fault” or “it’s mostly her fault” but those instances are rare. More often both parties led to the breakdown of the marriage but not to the extent that either one will be severely punished in the final judgment.

In my opinion, affairs and questionable behavior are becoming less important in determining the outcome of a divorce. First, I think it’s becoming less surprising (and some might argue more acceptable) to have those clandestine trysts. It doesn’t make it right, but when people tell me that they know or suspect that their spouse has cheated, I barely blink. The more common affairs are, the better chance that they are working their way into the pseudo-norm.

Second, affairs are not always that easy to prove. That “nagging suspicion” gets me nowhere in court and only winds up costing the client serious cash when they allow their suspicions to impede negotiations and settlement talks. If you can’t verify it, you could wind up looking like you’re on a major smear-campaign as you try to prove that he was Client #10. There is a huge difference between what you know and what you can prove in court. Pictures, emails, cards or receipts for bling that you’re not wearing are great, but they don’t surface very often. Also, keep in mind that courts are not inclined to consider any relationships that began after separation or filing of the divorce. Whatever you suspect or even know will unfortunately never matter as much as you want it to.

With today’s economy, it’s harder to secure large property settlement awards or spousal support because your man lost his job or isn’t getting those expected commission checks. Fault seems to matter less when there isn’t anything worth awarding – half of zero still equals zero.

However, for all of you who are calling your favorite motel as you read this, you shouldn’t breathe a huge sigh of relief, because it’s just my opinion. And we all know what those are like.

First published 3/8/10, Jackson County Legal News, Vol. 45, No. 24

Is your divorce a sand trap for your future earnings?

Author: Marie E. Matyjaszek

You can’t believe how nasty your wife is getting in this divorce - she wants everything and then some! Can a mere dozen indiscretions while you traveled around the world as a pro golfer really be that big of a deal? You’re anticipating some heavy cash coming in from some of your sponsors and even though you won’t receive it until a few years after the divorce, she still wants a cut. Well, thanks to a recent decision by the Michigan Court of Appeals, your future bonuses are not considered part of the marital estate subject to division, so you can keep those to yourself. I wouldn’t recommend texting this news to your girlfriends though.

In the just-decided case Skelly v. Skelly, (December 29, 2009), the Michigan Court of Appeals reversed a Wayne County Circuit Court decision that awarded part of the husband’s future bonuses from his employer to his wife, to the tune of 40%. Tom was a successful employee of Ford Motor Company (who I’m sure dreamt of being pro golfer on the side) and his better half Patty was a homemaker. Because no one wants to work for an automobile company these days, Ford offered Tom a “retention bonus” which totaled $108,000 if he’d stay with the company through May of 2009. He got part of the payment in 2007 and was going to get the other installments in 2008 and 2009; however, if he decided to take his career strictly to the fairway and leave Ford before May of 2009, Tom had to pay the entire bonus package back.

The trial court ruled that these future bonuses were marital property, and the last bonus payment, while correctly considered separate property, was subject to invasion and awarded her 40% of all of it. If you’ve earned some money during your wedded bliss, it’s almost always going to be considered marital property, and you get to watch helplessly as she spends it at Victoria’s Secret. You’ll wonder why the children’s toys keep coming to your house in those cute pink bags, but there’s not much you can do about it. However, “speculative bonuses do not fit into either the category of marital assets, or separate assets, because they do not yet exist.” Tom had not yet earned these bonuses, and the time period for when they could potentially be earned was after the two were divorced, so they were not a marital asset.

The Court of Appeals ruled that the bonuses were not a separate asset either, as Tom “did not take his retention bonus away from the marriage because he had yet to earn it.” Separate assets can be subject to invasion in a divorce, if one party needs that extra support, or if the spouse had helped accumulate those separate assets. Luckily for Tom, this was not the case.

It’s good to know that the Court of Appeals is willing to let your ex stay in the past and not take part of your future, including your earnings. Patty’s ball may have landed in the rough, but the Court of Appeals granted Tom his mulligan.

First published 2/8/10, Jackson County Legal News, Vol. 45, No. 20

Inheritance, gifts and divorce: OH MY! 'Don't comingle if you're gonna be single'

Author: Marie E. Matyjaszek

Whenever the phone rings in the middle of the night, you know it’s not good news. As expected, your great-aunt Sally has died, and true to her word, she left you $100,000. After getting over the initial shock that you actually were her favorite niece, you roll over and think about waking up your husband to tell him the news. Then you remember you’ve been considering divorce, so maybe you should keep this to yourself. Decisions, decisions.

Even if you’re married, inherited property can remain the separate property of the spouse that received it. The length of your wedded bliss may influence how a court rules on the issue – and no, you can’t subtract the years that you just stuck it out for the kids. The shorter the marriage, the easier it is to keep the inheritance your own; the longer you stay together, the better chance your spouse has to say the monies were marital in nature.

A bevy of Michigan cases detail what outcomes may occur and a lot also depends on how you treat the inheritance. If you keep it in your name only, in a separate bank account and stay away from that pesky co-mingling, chances are good that you’ve helped it retain its separate status. But if you use it for marital purposes, or start to plan for your joint retirement together, the court may consider those actions as intent to share it with your hubby. And we all know that $100,000 buys a lot of tools and a really nice fishing boat.

So, if you want to keep those funds strictly earmarked for shoes, purses, and things that go bling, keep it to yourself as best as you can. The courts can look at whether or not you paid joint taxes on it, or if you “let pass other opportunities to accumulate savings because [you] were relying on the gifted or inherited asset to be there in the future.” (Michigan Family Law Bench Book, 09 Supplement, §8.26, p. 8-21.)

The same type of logic applies to items that are gifted to one spouse during the marriage as well. If the donor is still alive, you can ask her to explain her intent behind the gift. If she’s no longer lucid or has passed on, the courts can look at the way the gift was presented – whose names were on the check, and if there was any note or explanation as to the purpose for her generosity.

Sure, it’s not the most positive outlook to consider the state of your marriage when receiving an inheritance or gift, but the truth is you can’t take it with you when you die, so you might as well try to take it with you in the divorce.

First published 1/25/10, Jackson County Legal News, Vol. 45, No. 18

It's a bling thing: Does the ring get 'left at the altar' when an engagement fails?

Author: Marie E. Matyjaszek

People get married. People get divorced. Some people stay together their whole lives. But what happens to the shiny, expensive diamond ring when somebody doesn’t go through with it? As a girl who loves all shiny baubles, I think it’s ridiculous to assume she had not done something to deserve it, and therefore, should be allowed to retain it. Unfortunately for me and other Cartier loving women, the Michigan Court of Appeals does not agree.

In the 2001 case of Meyer v. Mitnick, 224 Mich App 697, Dr. Barry Meyer had given his girlfriend Robyn Mitnick a $19,500 engagement ring in August of 1996. A few months later, he asked her to sign a pre-nuptial agreement, which apparently did not go over too well with Ms. Mitnick as she refused to do so and they broke up. Naturally, both sides alleged that the other had been the one to call the wedding off, but one thing was clear: Dr. Meyer wanted the bling back.

Dr. Meyer’s position, which the trial court agreed with, was that the ring was given only because the parties were to be married, and when that didn’t occur, he rightfully deserved to have the ring returned to him. Ms. Mitnick countersued and argued that the ring was an unconditional gift, and she should be allowed to retain it since it was Dr. Meyer’s fault the engagement was broken. Prior case law considered fault to be dispositive – In re Lowe Estate, 146 Mich App 325 (1985), opined that whoever did not break the engagement got to keep the ring. If both parties agreed to end the engagement, the donor was to have the ring returned to him because no specific fault could be found.

In the Meyer v. Mitnick decision, the Court of Appeals looked to other jurisdictions because at that time, there was no Michigan law on point. The Court stated that “the jurisdictions that have considered cases dealing with the gift of an engagement ring uniformly hold that marriage is an implied condition of the transfer of title and that the gift does not become absolute until the marriage occurs.” Siding with Dr. Meyer, the Court of Appeals upheld the trial court’s ruling in his favor, holding that fault does not come into play when deciding who retains the engagement ring. Instead, it stated that “an engagement ring given in contemplation of marriage is an impliedly conditional gift that is a completed gift only upon marriage. If the engagement is called off, for whatever reason, the gift is not capable of becoming a completed gift and must be returned to the donor.”

Once the actual marriage occurs, the transfer of title to the engagement ring is completed, making it an absolute gift to the new bride, one which she can retain as her sole property. If the couple breaks up prior to the big day, the ring is returned to the would-be groom, for him to do with it what he pleases. I don’t know if he should keep it, holding out hope that they’ll get back together, or sell it while gold and diamond prices are high. Either way, one thing is certain: while love may be unconditional, the ring sure isn’t.

First published 12/7/09, Jackson County Legal News, Vol. 45, No. 11