What's mine in the future is mine

When people divorce, it should be a (mostly) clean break from their former spouse. Most know that their future earnings are considered for child support and spousal support too if that is ordered and modifiable. But what about speculative employment benefits you earn in the future or post judgment? Those should be yours and yours alone, right? If you said yes, the Michigan Court of Appeals agrees with you.

In the 2009 published case Skelly v Skelly, 286 Mich App 578, Wayne County trial court awarded Thomas Skelly’s former wife, Patricia, part of his future benefits with his employer Ford Motor Company. Tom had a lucrative position at Ford which came with a retention bonus, paid out in installments, totaling $108,000. The point of the bonus was to have Tom stay put at Ford through May 31, 2009 to receive the full amount (I’d be sold). If he didn’t, he had to reimburse Ford for every payment received.

 

The lower court did its usual equitable division of marital retirement, assets and debts, and awarded Patricia spousal support of $5,000 per month. While recognizing that the future retention bonus payments would likely be separate property, the court ultimately chose to invade it, noting Patricia’s limited ability to earn, and “in the Court’s mind, [the retention award] is based on performance during the marriage,” and awarded Tom 60%, and Patricia 40%. The court went on to award Patricia 40% of any future bonus received by Tom, in addition to the retention bonus. Earned bonuses are considered for support, including modifications as they are income, but the parties were divorced July 23, 2008, almost a full year before Tom could even get the last payment of his retention bonus. Not surprisingly, Tom appealed.

 

The court of appeals noted that assets earned during the marriage are part of the marital estate whether they are received during the marriage or after the judgment has been entered. However, the difference in the Skelly case is that the retention bonus was not truly earned during the marriage, so none of it was marital property. Don’t forget, Tom had to work until May 31, 2009 to get the full $180,000, and he had to pay it all back, including portions already received, if he didn’t stay with Ford until that time. Because of this, he hadn’t earned the money as “he had not satisfied the condition subsequent…required by the agreement between him and his employer.”

 

Ultimately, the court of appeals found the lower court erred in considering any portion of the retention bonus as marital property subject to division. It also held that the third payment was not separate property subject to invasion because he had not yet earned that money when the parties were divorced. As a final nail in the coffin, the court ruled that because speculative, future bonuses are not currently in existence, you can’t award them as part of the marital property division. Once again, they aren’t earned during the marriage and are “based solely on the potential occurrence of future events unrelated to the marriage.” Not even a crystal ball could’ve helped Patricia win this case.

Shooter drill misfires at the hospital

We’ve all suffered through false alarms, whether planned or not, but Michigan’s Department of Health and Human Services is paying for its part in one. On October 4, 2024, Judge James Redford approved a $13 million settlement to patients and employees of the Hawthorn Center for its huge mishap with a shooter drill.

While the Hawthorn Center is now defunct, it was fully operational right before Christmas in 2022, when patients and staff heard bellowed over the speakers that two armed men were inside the facility and shots had been fired. As if that isn’t bad enough, the Hawthorn Center, located in Northville Township, was a state-ran children’s psychiatric hospital. Read that again.

 

The element of surprise is often helpful when trying to effectively plan for any type of emergency. However, given America’s history with mass shootings and gun violence, and considering that this was literally a children’s psych hospital, leaving out that it was a drill was utterly devastating. It gets worse too – the police didn’t even know it was a drill. So, when 911 was called and families texted by terrified kids and staff, the police rushed to the scene in body armor and weapons used to combat this type of crisis.

 

It's hard to imagine the horror faced by the staff and children, who were already suffering from mental health issues. The hospital even went so far as to have two individuals pose as shooters, but thankfully they were not armed.

 

The settlement will award 50 children approximately $60,000 each, and 90 staff with more than $50,000 each. The score from a trauma exam will help determine the exact amount each person will receive. In addition, 24 other individuals will receive lesser amounts. Disturbingly, the director who organized the drill still works for the state of Michigan.

 

DHHS stated it was in everyone’s best interest to settle the matter, as opposed to prolonged litigation. While no amount of money will erase the trauma caused that day, the incident will certainly change how drills are handled in the future.

Spousal support is non-modifiable by agreement only

Spousal support is often a hard pill to swallow, even when the parties agree to the payment and terms. Imagine not having a say, and finding out from the court that you are stuck paying $2,500 per month…with no ability to change it. That was Frank Koy’s nightmare until the Michigan Court of Appeals stepped in (see Koy v Koy, 274 Mich App 653 (2007)).

Now, to be fair, Frank wasn’t exactly portrayed as an angel – his ex-wife Concetta, a widow when they married, testified that he squandered her $400,000 in real estate without her knowledge, leaving her with only $5,000. During their divorce, he didn’t comply with a multitude of court orders, including those related to discovery, which looks a little suspicious. His excuse was that he simply wasn’t good at answering those types of questions, and besides, his wife knew their assets.

 

On top of his utter lack of respect for court orders, when Frank failed to show up at the settlement conference, the court entered a default against him and declined to set it aside when asked.  Frank requested a stay relative to the default judgment of divorce and to set it aside, because Concetta was disposing of assets while his appeal was pending. The trial court agreed to the stay if Frank posted an over $500,000 bond – which he never did.

 

The trial court entered a default divorce judgment, awarding Concetta non-modifiable spousal support of $2,500 per month. The problem is, only parties can agree to a non-modifiable spousal support award – and Frank certainly didn’t agree. The Court of Appeals noted that “[a]n award of spousal support is subject to modification on a showing of changed circumstances,” and while the award “need not specify that it is modifiable, the award in this case improperly states that it is “non-modifiable.”

 

When divvying up the parties’ property, the trial court also failed to make sufficient findings of fact to support its decision. Upon remand, the court could consider redistribution of the assets to achieve the equitable division required.

 

The Court of Appeals held that the lower court did not abuse its discretion when denying Frank’s motion to set aside the default judgment of divorce, leaving him with a limited do over on the property, and of course, the spousal support win. This case is an excellent reminder that the court cannot issue a non-modifiable spousal support award absent agreement of the parties – proving that change isn’t always a bad thing.

Timing is everything for your divorce

Family law requires a lot of patience, both for attorneys and clients. Knowing when and where you can file and how long the process takes keeps it moving smoothly.

To file for divorce in Michigan, a party must have resided in Michigan for 180 days and in the county of filing for 10 days immediately preceding the filing of the complaint (see MCL 552.9). The only exception to the 10 day requirement is if all of the following apply: “the defendant was born in, or is a citizen of, a country other than the United States of America,” the parties have a child together, and “there is information that would allow the court to reasonably conclude that the minor child or children are at risk of being taken out of the United States of America and retained in another country by the defendant.”

 

For most people, there’s no residency issue as they’ve lived in Michigan for years. However, I have seen people file in a county other than where either one resides, which is problematic unless all the above exceptions are met (spoiler alert: they usually aren’t). It is exceptionally depressing to tell parties they must start all over again in the correct county and pay more filing fees.

 

If the divorce is filed properly, 60 days is the bare minimum amount of time from start to finish (see MCL 552.9f). Naturally there are exceptions – if the cause for divorce is desertion, or “when the testimony is taken conditionally for the purpose of perpetuating such testimony.” Gotta love that lawyer lingo.

 

If you have kiddos, your minimum time frame is extended to 6 months, which is where patience comes in handy. Most divorcing couples want it over and done with ASAP, and 6 months can seem like a lifetime. However, if the divorce is contested, you can easily surpass the 6 month mark, with or without children.

 

I’ve already addressed two exceptions in this article, and you guessed it, there is a third – an exception to the 6 month rule! If you can show the court that you have “unusual hardship” or “compelling necessity,” you can accelerate your divorce finalization time to 60 days. Depending on how stringent your judge is, this may not be an easy task. Examples of “unusual hardship” are one party leaving for active military duty, bankruptcy filing, refinancing, or other financial concerns. While it may be true, telling the judge “I’m over it” doesn’t usually work.

 

Most people want their divorce finalized in record time, but it’s important to understand the minimum legal timelines to stay grounded in reality. A lot of planning and time went into your wedding – expect the same for your divorce.

Moral fitness matters

When courts look at determining custody and parenting time, they must focus on the best interests factors set forth in MCL 722.23. Most are pretty self-explanatory, albeit in lengthy legal jargon, but one that often stumps is f – the moral fitness of the parties involved.

It’s a fair bet to say that most people don’t believe their exes have stellar morals, for a variety of reasons. Maybe they cheated, maybe they “borrow” their neighbor’s cable services, or maybe they have a criminal record. Or maybe, it’s things that the ex finds personally objectionable – smoking, not going to church or drinking. So where does the court draw the line on determining if a party is morally fit for purposes of custody and parenting time?

 

In the 1994 Michigan Supreme Court case Fletcher v Fletcher, 447 Mich 871, mom had an affair (or two depending on who you ask) during the marriage. Because of this, the trial court found in favor of the dad on factor f, believing that the affair provided a poor moral example for the children. The Court of Appeals reasoned that since the children had no idea she had an affair, her behavior didn’t give them a poor moral example. Michigan’s Supreme Court agreed, but noted that the laser focus on “moral example” overlooked factor f’s critical words, “fitness of the parties involved.”

 

The words moral fitness referenced in factor f relate to “a person’s fitness as a parent.” The court should not focus on who would win the overall moral superiority contest, but rather how and if their moral fitness impacts their ability to properly parent their child. The court held that “questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.”

 

The fact that you had an affair or other moral slipup doesn’t equate to being a lousy parent. The specifics of each alleged moral mishap need to be taken into consideration, instead of treating it as an automatic black mark on that parent’s column. People should still try to make good choices, but not every skeleton in your closet needs to come out in court.

MI's Safe Storage Law is in effect

Gun violence is at the forefront of every election, political and legal conversation, and provisions relative to gun safety find their way into domestic relations orders at times.  Michigan recently enacted the secure storage law, Public Act 17 of 2023, effective February 13, 2024, aimed at reducing unintentional gun deaths and injuries.

According to the CDC, there were more than 48,000 firearm related deaths in the United States in 2022, and firearm injuries were in the top five leading causes of death for individuals aged 1 to 44, and the greatest cause of death for those aged 1 to 19.

 

To help combat this, the new law requires that an individual in control of the premises they are on, who leaves a firearm unattended where he’s aware a minor is or likely to be present, must store it in a locked box, or keep it unloaded and locked with a locking device rendering it inoperable. If you are on someone else’s property, you can also store the firearm in your vehicle in a locked box, or keep it unloaded with a locking device. You must lock your vehicle.

 

Penalties for violations of the law increase depending on what happens with the weapon after a minor obtains it. Like most laws, there are exceptions, such as minors who have the firearm with their guardian’s permission, use it for work, farming or target practice.

 

Obligations are also set forth for federally licensed firearms dealers who sell in the state of Michigan. If any of this law applies to you or your clients, read the entire statute carefully to ensure compliance.

 

Individuals can request free gun safety kits through Project ChildSafe by going to its website. After filling in the desired location, a list of participating law enforcement departments will display. Gun safety is imperative to saving lives, and compliance with the new law is extremely important in meeting that goal.

*Project ChildSafe link: Get A Safety Kit – Project Childsafe

Breaking up is hard to do

No one likes being dumped, and if you’re currently embroiled in legal issues, the last thing you need is to be dumped by your lawyer. Here are my top tips to foster a healthy attorney-client relationship.

Don’t hire a champagne attorney on a beer budget. Yes, lawyers are expensive, and some people have family or friends to help them foot the bill, but if you truly cannot afford the services of the attorney you’d like (whether from the outset or partway through the case), be honest with your attorney. Some may offer sliding scales, reduced rates, payment plans or participate in pro bono services. They may also be able to recommend a competent attorney at a price you can afford.

 

Once you decide on an attorney, read the retainer agreement more than once. Ask questions if you don’t understand something in the contract. Ultimately, once you sign it, you are responsible to uphold your end of the bargain. Not doing so could lead to termination of representation.

 

Return documents and respond to emails timely. The time constraints you may find burdensome are often set by the court, court rules or statute – it is not your attorney being unreasonable. If you can’t comply with a deadline, let your attorney know immediately so he can ask about an extension. If you don’t cooperate, your attorney can’t put forward a successful case.

 

Speaking of timing, show up to court and appointments on time. Many matters are still being held via Zoom, which means less justification for tardiness. Being late shows a lack of respect and preparedness. A professional you’ve hired to work for you shouldn’t have to wait on you, and vice versa – keep each other informed as to any delays.

 

Be respectful to your attorney’s staff, ALWAYS. They are the gatekeepers and are extremely knowledgeable people to have on your side. Behind the scenes is their world, and they are likely to be the ones setting up hearings and appointments, drafting documents and helping manage your case. They may also have an hourly rate or charge for particular services – this should be spelled out in your retainer agreement. If you don’t see anything in the contract, ask so you’re not surprised when you get your bill.

 

Last, be honest. About everything. You can do yourself no greater disservice than lying to your lawyer. If you can’t tell the truth to someone bound by legal pinky promises, who can you tell?