Retirement - You Gotta Share It!

You slave away from 8-5 daily, almost 52 weeks a year at your job.  You put up with your coworkers, boss and the fact that the maintenance staff never seems to empty your trash can and vacuums around all the crumbs you left on the floor.  The only good thing your job has going for it is a great pension and 401k plan (although it’s probably one or the other in today’s economy), and you can’t wait to be able to sit back, relax and collect all that money each month.

Because your wife never seems to pick up after you either, you decide that it is time to file for a divorce – you want to live out your glory years on a beach with some young babe, and having a wife would foil those plans.  But when you walk into your local divorce attorney’s office for a consult, he says something that stops you dead in the middle of that daydream – your wife gets part of your retirement?!?  She has her own job, she has her own retirement, and she didn’t put in all that time at your employer!

Here’s the kicker – per MCL 552.18, “any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court.”  And, any rights in an unvested retirement plan where you accrued those benefits during the marriage may be subject to division as well. 

The good news is, if your retirement is up for grabs, so is hers.  Typically, barring any premarital amounts in the retirement plan, each spouse is entitled to one-half of the other’s retirement benefits that were accumulated during the marriage (date of marriage to date of divorce).  If you worked at your employer’s prior to the blessed wedding, you most likely get to keep those funds and you’ll need to find out exactly what you had in your 401k or other plan at the date of marriage (or as close to it as the plan administrator can get) so that the premarital amount can be excluded.  Anything you earn after the divorce is yours to keep too, but your spouse can sometimes share in things like cost of living increases to the extent of her award.  Technically the courts can divide premarital and post-divorce monies too, but I rarely see this happen.

If the parties both have the same type of plan, it’s easy to divide – you simply take who has the larger amount, subtract the smaller amount, and split the difference.  At times the one spouse’s award can easily be rolled over into the other’s account by filling out paperwork and submitting it to the plan administrator.  In more complex situations, specific formulas are used to divide plans and determine your spouse’s exact monthly benefit.

The court documents used to divide most retirement plans are called a QDRO (Qualified Domestic Relations Order) and an EDRO (Eligible Domestic Relations Order).  Depending on your employer and type of plan, one of these will be used (unless you got lucky and could just roll it over without needing a separate order).  If your attorney is comfortable drafting these documents, he or she may prepare the QDRO or EDRO on his or her own, or if it’s more complex, it may be farmed out to companies that do this as their primary business.  Certain plans are a nightmare to work with and every comma has to be in the right place in order for the plan administrator to approve the order.  When I know that a large headache is in store, I will hire a company to draft the order – there are several well respected companies in Michigan that know the QDRO and EDRO game inside and out.

I like to send in my orders for “pre-approval” by the company first so I know whether or not it will be accepted before I obtain everyone’s signatures and enter it with the court.  If you don’t secure pre-approval, you run the risk of entering it with the court, submitting it to the company, and then being told it’s wrong and won’t be accepted.  At that point you have to draft an amended QDRO or EDRO, secure all the signatures again, enter it with the court again, and hope the company accepts it on the second try.  Getting a yes or no before doing all that work can alleviate a headache in the end, and save your clients money as well.

You and your spouse can agree to keep your own retirement and not share in those benefits, but that doesn’t happen too often – she needs that extra monthly income for fun with her new man too.

Erasing your crime

Occasionally we all do something that we regret and we look back and wish it could be erased from the memory of those who witnessed it.  Past criminal acts certainly fit into this category, and if you meet certain qualifications, those acts can disappear from the public’s eye.

If you’re looking to set aside a criminal conviction, also called an “expungement,” the State Court Administrator’s Office (SCAO) has a great packet which includes eligibility questions, instructions and forms to help you do this.  The forms you will need are MC 227 (Application to Set Aside Conviction) and MC 228 (Order on Application to Set Aside Conviction).  I can’t explain everything in my article, so obtaining this packet will give you extensive details and instructions as to what to do, and the great internet will provide you with the packet at the click of a button!

In order to be eligible to set your conviction aside, you must only have ONE conviction in your past, not including two minor offenses, as set forth in MCL 780.621(10)(b).  If you have a conviction from a federal court or another state, you’re not going to be able to apply.  The type of crime committed also makes a difference – for example, you cannot have been convicted of CSC (Criminal Sexual Conduct) in the first, second, or third degree, nor can you apply if you were convicted of an assault with intent to commit a CSC crime.  Being convicted of a felony or an attempt to commit a felony, where the potential max sentence is life behind bars, will bar you from an expungement as well.  Wanting to erase a driving or traffic offense is also a no go, and it must be at least five years from the date of your conviction and if you were thrown behind bars, at least five years after you were released from the clink.

If you don't fall into one of the categories above that exclude you from applying to set your conviction aside, you can likely get 'er done.  Now you have a little to do list in order to set this in motion.  You first need to obtain a certified copy of your conviction, which is relatively easy as you simply need to go to the clerk’s office and obtain a certified copy of the Judgment of Sentence, Order of Probation or Register of Actions in your case.  You will be charged a fee for this document, so bring some loot with you to pay up. 

Your next step is heading to a local police department for some fun finger painting – I mean finger printing.  The department will likely charge you a fee for this, but it’s usually not too bad.  Not surprisingly, the State Police will be checking on you and using these prints to determine if you have other convictions.  You’d be amazed at how many people claim to have forgotten about prior convictions or say they didn’t know they had them.

Once you have your certified copy and fingerprints, you need to sit down and fill out form MC 227 carefully and make the appropriate number of copies (all explained in the handy packet).  You must sign this form in front of a notary public or court clerk, file your application, paying another fee ($50 this time) and mail it out to the appropriate parties (prosecutor, Attorney General and State Police).  You’ve got to file a Proof of Service with the court to prove that you served the docs on the above parties.

It’s wise to wait to set your hearing until you have received your Michigan State Police background check report – usually it’s safe to say 6-8 weeks from when you file your application as the police can take time to process your request.

Be aware that both the prosecutor and Attorney General may attend and object to your application, and the victims of certain crimes can also appear as the prosecutor has to notify them of your application.  The court will make the ultimate decision as to whether or not your application should be granted, which is why you need to bring form MC 228, the Order on Application to Set Aside Conviction, with you to the hearing.  If the State Police report came back indicating no other crimes and the prosecutor and Attorney General have not objected to your application, there’s a good chance you’re going to get your wish.  If there are objections, you may still have your conviction set aside provided you have good evidence of how you have changed and a good argument as to why this should occur.

The court clerk should send the copy of the order to the appropriate parties, but I’d suggest making sure this happens, and if your application was granted, check your record to verify that your conviction no longer appears.  Again, do realize that the State Police will still keep a nonpublic record of your conviction, but to the public, it will look as though it never happened.

Here's the links to the packet and forms- http://courts.michigan.gov/Administration/SCAO/Forms/courtforms/generalcriminal/mc227.pdf
http://courts.mi.gov/Administration/SCAO/Forms/courtforms/generalcriminal/mc228.pdf

 

Three common divorce myths debunked

When people come to see me, I often hear the same concerns over and over again, which is not surprising given that the divorce process is like a train ride and all of the issues come directly to the depot – my office.  I hope to debunk three of the most common divorce myths in this article.

The first myth is the belief that when a couple is awarded joint physical custody of their kiddos, no one will pay child support.  People often think that an equal parenting time schedule automatically relieves them of the financial obligation to the other parent, but this is simply untrue.  Child support is partially based on the number of parenting time overnights one has, but income is an enormous factor in calculating child support (among other factors).  Even if you have exactly 182.5 overnights per year with Tommy, but you earn twice as much as his mom, you’re going to wind up paying child support.  The income differential between the parents will affect whether or not someone will pay support regardless of custody.  Of course, some parents will agree to reserve child support when they share custody, but if the Mrs.’ attorney runs the child support program and tells her even with joint physical custody she’s entitled to $200 or $500 per month, don’t bet that this will be the case (Tommy needs as many fabulous shoes as she has).

The second biggest myth revolves around the abandonment of your home.  People often separate during divorce and vacate the marital home, leaving the other party to turn it into a bachelor (or bachelorette) pad.  Many people worry that this means they have permanently abandoned the home, can’t ever come back, and that they’ve forfeited their claim to any equity in the property.  This is also false.  Remember that the deed to the home determines legal ownership, and in most cases, married couples hold the deed jointly.  Even if you’re not on the deed, it’s likely the address on your driver’s license, which shows that you certainly have a right to come and go to get your belongings, pick up the kids, etc.  Sure, when you move out, your husband may not expect you to come back every day, but it’s not unusual for the parties to still use the marital home as an exchange point for parenting time or get together to split up the household belongings.  Equity in the marital home is also not exclusive to the party that lives there either.

Courts can order “exclusive use” of the marital home which is an order that provides for only one party to reside at the marital home and prohibits the other from coming to the home or property (some exceptions exist depending on what’s written in the order).  If this happens, the party remaining in the home often changes the locks, garage door opener and pass code to prevent the other from disobeying the order.  Most often these orders are granted when there is an issue with domestic violence, substance abuse, or the parties simply cannot get along while living together.  If one party has vacated the home already and has a new place to live, and the party remaining is afraid that he will come back and clean out all the sweet Budweiser collectables, she may ask the court for exclusive use to prevent that (assuming he doesn’t break in and steal the stuff anyways – just because something’s in writing doesn’t mean people abide by it).

The last myth examined in this article goes along with the second – when one person leaves the marital home, are his financial obligations to the marital expenses for that home done and over with?  Nope.  Just because you move out does not mean you are exempt from contributing to things like the mortgage, utilities, taxes and insurance, especially if your paycheck was the one primarily used to pay these expenses in the past.  If you voluntarily fail to pay these expenses upon your move (and you know your spouse doesn’t have the means to do so on his or her own), the court can order you to continue your regular financial contribution to these expenses, or least a partial contribution with your spouse kicking in for the rest of the cost.  Yep, it’s expensive to get divorced.

I hear plenty of complaints from divorcing clients, which as you’d imagine, can be very taxing at times.  However, the worst part of my job is not being able to tell people what they want to hear, but instead having to tell them what they need to hear.

Forgiving your ex

Great article on forgiveness in the family law setting!
http://www.huffingtonpost.com/eileen-barker/seven-reasons-to-forgive-_b_1877733.html

Courthouse Etiquette

Almost every day that I go to the courthouse I cringe at what I see and hear, and it appears that this gets worse in the summer time (the heat makes everyone crazy).  I’m all for having a good time no matter where I go, but there are some etiquette ground rules that should be followed when you’re going to the courthouse to conduct legal business.

The number one offense is by far wearing pajamas to court (this can also be expanded to other inappropriate clothing – booty shorts are not the best idea either).  Don’t get me wrong, I love a nice pair of comfy pants, but anything I wear in public is not going to have monkeys or Hello Kitty© all over it.  The other week I actually saw someone leaving the courthouse wearing what was definitely pjs, a bathrobe and slippers.  Presumably you’re not at the courthouse because you feel like hanging out there and instead you are probably paying a fine, attending a hearing or trying to obtain records of some sort.  Who is going to take you seriously when you are dressed like you just rolled out of bed?  You don’t have to get all glammed up, but you should have enough respect for yourself to put on your big boy pants and dress in something other than pajamas when you go to the courthouse.

Bringing children into the courtroom isn’t a fab idea either.  I realize that sometimes it’s difficult to obtain daycare and you may not have any control over when your hearing is scheduled.  However, children are unpredictable and the younger they are, the more this is true.  It can be very distracting and disruptive to bring the kiddos to the courtroom and it doesn’t make for a happy audience.  If the kids are older, and they understand what the court hearing is about, think about the emotional toll it takes on them to see their dad/mom/relative/family friend sentenced or yelled at by the judge.  Not a good idea all around.

Cell phones are not to be audible in court, and trust me when they do ring, everyone looks around for the guilty party.  It’s simple to turn it on vibrate or leave it in the car, so make sure you do.  Check with the specific courthouse for its rules also – some do not allow cell phones with cameras in the building unless you’re an attorney.  If you can silence your phone for a movie, you can certainly do it for a judge.

Throwing a fit on the sidewalk outside the courthouse is always entertaining but not necessarily in a good way.  It’s like watching a train wreck – you can’t look away.  Yes, we all have personal problems in our lives and it seems some more than others.  This doesn’t mean the general public wants to know why all of those people that testified against so and so are complete liars and why the judge was too hard on your friend for his no longer alleged crime.  Frankly it all looks ridiculous and not very civilized – wait until you get to your car or house to let it all out.

Following these simple suggestions won’t pay your fine or win your motion, but they will help you gain more respect with the judge, lawyers and other courthouse officials.  Besides, isn’t a little respect what you wanted in the first place?

 

 

 

ALLISON BATES FOR JACKSON COUNTY, MI PROSECUTOR!

The time to vote is just a few days away, and I urge all Jackson County, MI voters to support Allison Bates for Jackson County Prosecutor.  I have known Allison for over a decade and have seen nothing but an intelligent, determined, hard working attorney who gives 150% to every case she takes on.  When I worked with Allison in the prosecutor’s office, I quickly learned that Allison has a very strong stance against crime and the determination to back up her words with action.  In addition to having a substantial amount of support from the law enforcement community, Allison certainly has support from local attorneys as well, including myself.  I strongly urge the Jackson community to vote for Allison Bates as our next prosecutor.

Don't litigate, mediate!

Ever have one of those days where you wish there was a sane, unbiased person to sort out your problems and make it all work?  If you are going through a family law matter, a mediator may be able to do just that, and probably at less cost than your attorney battling it out in court.

Mediation is a very common tool used in family law disputes, and it’s used at various stages of the game as well.  Some couples will hire a mediator to sort everything out before they even file the divorce action, mostly so they are not under the time constraints of the court system with its looming deadlines and scary case scheduling orders.  Others resort to mediation if they can’t agree on everything despite their best negotiation efforts, and some judges mandate the use of mediation prior to the case’s set trial date.  I think that parties are more likely to go into mediation with an open mind if they feel they are not forced into it, and rather choose to go down that path on their own. 

Resolving a case through mediation requires a few things – clients that can keep an open mind and are willing to listen to all options presented for settlement, a full and complete understanding of the case, its issues and the parties’ assets and debts, and a competent mediator.  Most mediators are attorneys that regularly practice the area of the law that they are being hired to mediate, but some are licensed social workers, counselors or hold a degree in a similar field.  If you’re hiring a mediator to handle a family law matter, you’d want to ensure that the person has a good track record for successful mediation, has all of the necessary software (i.e. child and spousal support guidelines if those are at issue), and is not involved in any way with the case at hand.  At times you’d be surprised to learn that your client did a little comparison (or at times, bargain) shopping before hiring you, and may have consulted with the person you’d like to hire as the mediator.  If that’s the case, I can’t imagine that the other side would consent to hire someone who has likely given his or her spouse advice about the divorce, and it presents significant ethical issues for the mediator as well.

If possible, try to resolve as many of the “easy” issues in the divorce prior to mediation so that you are mediating only those contested and sticky problems that linger despite all of the 10 page settlement proposals faxed back and forth between counsel.  Sometimes you have to put all of the concerns in a divorce on the table for mediation, from custody, spousal support, the wedding china you never used, and Rufus the overweight canine BFF, but hopefully the parties can resolve some matters beforehand.  Each side has to prepare a brief or summary of his or her position, contested issues and important facts and information (especially what the marital estate is comprised of) to give to the mediator for review prior to the meeting.

Mediation can occur with or without attorneys, at a neutral location (advised) or at one of the attorney’s offices, Friend of the Court or courthouse.  At times the parties get along well enough to sit in the same room and stare at each other without World War Three erupting, and in other cases you had better have two rooms for the mediator to traipse back and forth.  With most mediations, the parties will equally split the cost for the mediator, with some charging a flat fee and others billing on an hourly basis for his or her time (those are the ones where the clients tend to talk really fast).

If no agreement can be reached via mediation, then the parties can at least say they tried and feel good that they made the effort.  Those cases are likely to go to trial and have the issues litigated in open court.  Sometimes mediation leads to partial agreements, which are certainly better than nothing.  Obviously any agreements made need to be reduced to writing and signed by both parties, or preserved in some fashion such as recording the agreement.  I’ve had good success with mediation and many cases have had a complete resolution, even when it seems like they are on opposite ends of the spectrum at the start.

Per Michigan Court Rule 3.216(A)(2), domestic relations mediation is not binding, but the parties can agree to the mediator making recommendations if there are outstanding issues when mediation is complete, which is called evaluative mediation.  

In my opinion, it’s always best to try mediation if the parties are willing and the case appears to be a good fit.  It will cost you less than a trial (God willing), and you’re likely to get a result you can live with.  In addition, if you had a part in crafting the eventual settlement, you’re more inclined to abide by it and see it through, as opposed to a judge telling you what you’re going to do with your life.  After all, the only time you want someone telling you what to do is when it involves beaches and tropical drinks.

5 things I wish all attorneys did

While I’m not perfect, I try hard not to fall prey to the things that drive me crazy, especially when it comes to my fellow attorneys.  I have a top 5 list of all time things I wish attorneys did or didn’t do on a regular basis, and thought I’d share.

The first is responding timely.  Clearly I wish this was something that everyone exercised on a regular basis.  There is nothing more infuriating than having worked your butt off on documents or settlement negotiations, cleared it all with your client and sent it off to opposing counsel, waiting for a reply.  And you keep waiting.  Wait for it……..nope, still nothing.  You can call, email, or write a letter yet never get anywhere.  Meanwhile your client is breathing down your neck and you can honestly say none of it is your fault, although that doesn’t ease your client’s already tense demeanor.  I try to reply to all messages, written or otherwise, within no more than 48 hours.  If you haven’t heard from me in that time frame, I’m probably sick or won the lottery and decided to bail on my job (unfortunately only the former has ever occurred, but I’m still hopeful).  We’re all busy people, but the faster you reply, the better chance we can close the case and everyone can move on.

Don’t personally attack me or my client.  Family law is stressful enough, and the emotions of the clients are at an all time high – it benefits everyone to stick to the facts and not sink low enough to take personal jabs.  All this does is make a tumultuous situation worse and stall negotiations.  There is no need to make fun of a person’s weight in pleadings (this happens more than you think) or call someone names in a letter.  Don’t forget that I have to pass these documents on to the client, which means they will see the nasty junk that was written about him or her.  Sometimes you do have people who do things which are really reprehensible, but most of the time the inappropriate comments are nothing more than below the belt and unnecessary.

Be prepared.  I’ve done my homework, read the law and know the facts of the case (other than those that some clients feel the need not to share with me, which is always fun).  You should be prepared too – if not for your own good, then for the person that is paying you – the client.  People notice when one side has got his ducks in a row and the other doesn’t, including the judge.

There’s the old saying that an attorney only lies when he opens his mouth, but I’d like to believe that this isn’t true.  Everyone has a reputation whether they want to or not, good, bad or mixed.  And of course, everyone has an opinion, which can mean more depending on who it’s coming from.  The last thing anyone wants to be labeled as is a liar.  We all know that some clients pick and choose what they tell us and we can only report what we’re told.  However, there are times where we know the other side is being shady and maybe it’s not just the client.  Having opposing counsel know that she can trust you is key to resolving the matter timely and successfully. 

Being courteous is another pet peeve of mine – both in my personal and work life.  It’s not always possible because at times you are under the gun with a time constraint or an emergency situation; but if an attorney asks me to postpone a motion for a week or two because he was recently retained, I’m likely going to do it.  I’ve been there and I know there’s a good chance I’m going to need to ask for the same professional courtesy from him one day, so it behooves me to accommodate him, plus it’s just the right thing to do.  The same goes for not serving people at the last minute with pleadings – although I totally admit I’ve been guilty of this a time or two but I’ve got to be really peeved to do so – giving people time to respond is the best way to ensure that all the facts come out and everyone can be prepared to argue their respective side.

I don’t want to cringe when I see the name opposite mine on the pleadings, and I certainly don’t want people to feel that way when they see my letterhead in their mailbox.  I try my best to do the best job for my client and maintain a good relationship with others in my field, and it’s always helpful if the other side does the same.  There’s always room for improvement no matter who you are, although I still plan on repeatedly telling my husband that I am already perfect.

'Honey, there's just this one little thing'...Pre and post nuptial agreements

So you’re getting married!  Summer is such a good time to have a wedding – gorgeous flowers are blooming, there’s more sun than snow and your family law attorney is always in a better mood when he can go golfing after your appointment!  Wait…why are you seeing an attorney before you’re married?  Isn’t that the kind of meeting you have after the years of wedded bliss have vanished?  Nope, if you want to protect the assets you’ve accumulated, a pre-nuptial (also called antenuptial) agreement should be on your mind.

Pre-nups, as they are commonly called, are enforceable in Michigan provided certain conditions are met – the agreement must be reduced to writing with both parties signing their lives away,  “the agreement must be fair, equitable, and reasonable under the circumstances, and must be entered into voluntarily, with full disclosure, and with the rights of each party and the extent of the waiver of such rights understood.  In addition, the agreement should be free from fraud, lack of consent, mental incapacity, or undue influence.”  Rinvelt v Rinvelt, 190 Mich App 372, 378-79 (1991).  Circumstances surrounding the agreement must not change so drastically that when one of the parties later on tries to enforce it, this enforcement would be almost as outrageous as Jesse James cheating on Sandra Bullock.

Per Reed v Reed, 265 Mich App 131 (2005), if you’re trying to void a pre-nup later on, your crystal ball will not help you, as the change in circumstances must be unforeseeable.  (Then again, if you’d had a crystal ball to use in the first place, you would’ve seen the problems that lied ahead with his constant nagging about your occupation of the entire master and spare bedroom closets, and planned accordingly to purchase a larger home).

If you think all of this sounds like a contract, then you’re right – the courts use contract law to interpret and wage legal battles over these agreements.  Some pre-nups use standard, boiler-plate language that doesn’t say too much, and others are insanely specific, with infidelity clauses, voiding of provisions once the parties have been married so many years, etc.

Post-nuptial agreements are also executed after the parties are married for the same basic reasons, but I would venture to say those are far less common.  I mean, how many people are willing to sign things away after they’ve already bought the cow and the milk?  I’ve seen some people offer to reconcile with their estranged spouse, but only if the spouse signs a post-nup – I know this doesn’t seem legit, but it may be enforceable.

Post-nups come in two forms based on the parties’ intentions – the first being if you plan to stay hitched, and the second being if you are indeed separating and/or divorcing.  If you’re checking out of the marriage, then these agreements are reviewed based on contract law and fairness is not something the court has to consider. 

However, if you are going to stay  married, per Wright v Wright, 279 Mich App 291, 297 (2008),  “under Michigan law, a couple that is maintaining a marital relationship may not enter into an enforceable contract that anticipates and encourages a future separation or divorce.”

Pre and Post-nups are standard with the elite and wealthy in society who actually have significant assets to consider, especially when the situation bears a resemblance to that of  Britney Spears and Kim Kardashian.  However, if you’re like the rest of us, you probably have more debt than anything else, so you can put that legal retainer to better use – your future bride’s wedding shoe fund.

*Courtesy of Jackson County Legal News, Vol. 47, No. 70, 6/7/12

Reality of pet custody battles

Pet custody battles don't just happen between spouses as this article points out.
http://www.cnn.com/2012/05/15/us/new-york-dog-custody/index.html?hpt=ju_c2

Spousal Support Factors - Show me the money! Part 3 of 3

This is the third part of a three part series.

As the spousal support factors come to a close, we’re running out of ways you can continue to drain money from your ex.  The next factor is “the health of the parties,” which is fairly straight-forward – the healthier you are, the more likely you’re going to be able to work, and you’re less likely to rack up serious medical bills and go into debt (the thought of having to spend hard-earned money on lab tests versus purses is just sickening).  Conversely, if you’re not in good health, spousal support can help cover the gap if you only work part-time or have to quit working sooner due to your illness.

The Court also looks at “the parties’ prior standard of living and whether either is responsible for the support of others.”  If you lived high off the hog (who came up with that expression anyways?!), the court takes that into consideration and realizes that just because you’re divorcing doesn’t necessarily mean you have to live like a pauper, although of course cutting back might be a good idea.  Perhaps you should only take one trip to Europe this year instead of two, and of course invite me along – be advised, I don’t pack light.

If you are supporting your elderly mother or handicapped child, the court considers this care of others as another reason that you may qualify for spousal support.  For example, if the parties have a disabled child who has reached adulthood but still requires care and assistance, which one party took upon him or herself, spousal support from the other party certainly helps ease that heavy burden.

“Contributions of the parties to the joint estate” takes a gander at what each party did to help build the marital estate, whether through working or raising the children while the other party was employed, etc.  The next factor is repetitive if you ask me – “a party’s fault in causing the divorce.”  This runs parallel to the very first factor, the past relations and conduct of the parties.  As I’ve said before, Michigan is a no fault state, but the court can still look at it as one factor of many in determining spousal support award and property division.

The second to last factor is “the effect of cohabitation on a party’s financial status.”  If you are shacking up with your Sugar Momma or Daddy and she or he is footing some of the bills, you presumably have more disposable income that could go towards a spousal support payment.  However, if you’re the one receiving the payment and are cohabitating with someone else, maybe your bills went down and you don’t need as much support as you had been previously receiving from your ex. 

Let’s say you were to split from your new relationship and that break up negatively impacted your financial status.  Assuming your spousal support award is modifiable, you could file a motion with the court to modify your award based on a change in circumstances.

The very last factor to consider is what I deem a catch all – “general principles of equity.”  After all, despite what everyone really thinks, a court’s job is to be equitable and fair in its rulings.  When all things are considered in a case, if it’s fair and just for both parties to award spousal support, then the court can rely on this factor as part of its reasoning.  Most attorneys include this factor in their pleadings even though it doesn’t exactly have a neat and tidy definition – if there is another reason that isn’t really covered by the rest of the factors, why not throw it in here.

Unless both parties come to an agreement about it, the court has the ultimate decision to “make it rain” money from your ex, and uses the factors covered in my last few articles to help it reach a decision on spousal support.  Keep in mind that spousal support is not a guaranteed right, so you might want to set some of your own money aside for those shopping sprees just in case.

Spousal Support Factors - show me the money! Part Two

This is the second part of a three part series.

Who doesn’t love getting paid for something they did years ago, like getting married?  Spousal support can give you that feeling of love even when you’re not in love anymore.

The next spousal support factor to be examined is “the ages of the parties.”  Obviously the older you are the less likely you are going to be able to work and support yourself, or the less of a chance you are going to be able to fork over cash each month to your ex (unless you’re Hugh Hefner or Larry King of course).  A young wife with an old husband has a better chance of maintaining employment than an old wife with an old husband, but it doesn’t necessarily mean that the trophy wife won’t get spousal support, as the court has to take into account various other factors as well (think back to article one for starters).

“The ability of the parties to pay spousal support” is factor #6.  If you’re raking in serious dough each month then you’re more apt to be able to divert some of those funds into your ex’s shoe or classic car account.  While you may not be one of them, there are still quite a few people, both men and women, that are earning a substantial living at the present time.  The rest of us are likely burdened by debt, working too much for too little, and facing financial pressure we seemingly can’t control.  For the regular folk, they may not be able to afford to pay any spousal support, unless they want to start living with their parents again.  Further, the court can look at more than just what we normally consider income, i.e. a paycheck, as income can include items such as your retirement pensions, Social Security payments, or disability payments.

The court must also look at “the present situation of the parties” in determining a spousal support award.  Did your ex move out because she just couldn’t stand your towels on the floor anymore?  Because of your messy habits, is she now facing a myriad of bills on her own, like rent, utilities and credit cards?  If one of the spouses in a marriage is disabled and unlikely to find work, yet the other is doing well in her or his career, this factors in well.

The last factor to be examined this go ‘round is “the needs of the parties.”  If your wife was a stay-at-home mom or doesn’t have any real marketable skills, she actually needs spousal support more than a wife who has maintained a career alongside yours during the marriage.  You can double up on some of the other factors and say that because of the poor health of one spouse, and the crippling medical bills he or she faces, that’s another consideration for needing support.

The amount of cash flow and your individual ability to work compared to your ex will help determine if you have to continue to share the fruits of your labor with the former Mr. or Mrs.  If you’re the one receiving support, you don’t necessarily mind having those ties to your past – now if only you could get paid for all those other annoying habits you put up with.

Spousal Support Factors - show me the money!

*Note:  This is the first part in a series of articles about Spousal Support.

I figured I should get the factor-specific articles out of the way since I seem to be on a roll with them lately.  This time, however, I’m focusing on the spousal support (or alimony) factors, which are a little trickier than child support.  Most people agree that child support should be paid because they see the money as benefitting their children (although I’ve often heard that mom just goes out and spends Tommy’s support on some sweet new shoes and hairstyle for herself.  Honestly though, those cut and colors are expensive). 

Spousal support is not a “guaranteed right,” as much as anything in the legal world can be considered guaranteed.  Unlike the Michigan Child Support Guidelines, which are to be followed unless the parties agree to deviate from them, the Michigan Spousal Support Guidelines are just that – guidelines.  Nothing is really mandatory and it is routinely said that spousal support guidelines are both high in terms of the dollar amount and the years of recommended support.

The factors for determining spousal support are outlined in various cases, the two big ones being Parrish v Parrish, 138 Mich App 546 (1984) and Sparks v Sparks, 440 Mich 141 (1992).  The first four factors will be examined in this article and the next two articles will finish them off. 

The first factor is “the past relations and the conduct of the parties.”  This is where everyone plays the blame game and talks about how promiscuous, abusive and overall awful their spouse was during the marriage.  As I’ve said before, I personally think the promiscuity part has significantly less impact on the court’s decision than it used to back in the day.  If there are repeated offenses, domestic violence or actual evidence of really lousy behavior, then you have a better shot at this factor panning out for you.  It’s been my experience that all my clients think their spouses were total arses during the marriage (hence the divorce), and one’s behavior can be very subjective depending on who you’re talking to.

The second factor is “the length of the marriage.”  This is a no-brainer – the longer you’re married, the more likely you’re going to qualify for a potential award of spousal support.  There aren’t a set number of years, but I’d say on average the awards are for those couples who have enjoyed not so wedded bliss for 10 or more years.  However, note that the courts will not consider your courtship or the time period that you “resided in sin” as part of this overall number.

“The ability of the parties to work” is factor tres.  If you’re able to work, you’re less likely to need moolah from your former spouse.  On the flip side, if your sugar daddy or momma can’t work, you’re less likely to extract money from them in the form of spousal support.  I run into cases where one spouse has been a “stay at home mom/dad” and really hasn’t had that much work experience; therefore, her or his ability to quickly secure employment is not as likely as those cases where both parents worked throughout the marriage.  If the parties are older or disabled, this also impacts their ability to hold a job.

The last factor for this article’s examination is “the source and amount of property awarded to the parties.”  Case law has held that one party should not have to drain his or her property awarded in order to survive if spousal support is a reality.  As was so aptly put by the Michigan Court of Appeals in Hanaway v Hanaway, 208 Mich App 278, 296 (1995), “…where both parties are awarded substantial assets, the court, in evaluating a claim for alimony, should focus on the income-earning potential of the assets and should not evaluate a party's ability to provide self-support by including in the amount available for support the value of the assets themselves.  Given the length of the marriage, the magnitude of the marital estate, and defendant's capital position and earning potential after the divorce, [Mrs. Hanaway] should not be expected to consume her capital to support herself.”

The next four factors are up for consideration in April.  Spousal support is a hard pill to swallow, so if your attorney thinks you might be on the hook, bring a big bottle of water with you to keep it down.

Separate Maintenance v Divorce - What's the difference?

Let’s say you like your spouse, but you don’t “like them” like them.  You don’t necessarily want to divorce him but you sure as heck don’t want to be completely committed to him either.   If this is the case, you may want to file a “separate maintenance” action.  The most common reasons that people choose a separate maintenance action are because they have very strong religious beliefs against an actual divorce, or that they don’t want to lose the health care insurance that their spouse provides, most likely through their employer. 

You see, once a couple is divorced, they are no longer eligible for health care insurance through their former spouse’s employer unless it’s through COBRA.  COBRA is ridiculously expensive and can only be used for a maximum of 36 months.  However, a lot of companies are now treating separate maintenance actions the same as a divorce – just like having a baby is a qualifying event to change coverage (albeit a much happier one), separate maintenance actions also set off that alarm for HR to make changes to qualifying dependents on the employee’s health insurance policy.  For example, my hubby’s employer would kick me off his policy if we were “legally separated,” which is what a separate maintenance action would be considered.

To file for separate maintenance, you’ve got to follow the same rules as if you were filing for divorce.  In turn, the court can divide your property, award assets, distribute debts, order support payments and award custody and parenting time rights.  A Judgment of Separate Maintenance is filed instead of a Judgment of Divorce.  It’s still one stop shopping except that you’re not actually divorced.  Don’t think you can go out and get remarried the next day.

There is a catch – if your spouse wants to be divorced, he or she can file a counterclaim for divorce and there isn’t really anything you can do about it.  You cannot force someone to stay married to you (just like you can’t force your spouse to quit watching ESPN 24/7 – with all those universal remotes, no matter how many times you hide or throw them away he can always buy another one).  So if your hubby files a counterclaim for divorce, your separate maintenance action is out the window unless he changes his mind (unlikely, especially if you actually have been throwing out the remotes).

Separate maintenance actions are nowhere near as common as divorce actions, primarily because if you’re going to carry on like you are divorced, you might as well be.  Besides, if you find your new Prince Charming, you want to truly be single so you can tie that knot again!

Former Jackson County, MI District Court Judge Justin Charged with 4 Felonies

Click on the below link to read the latest on former Jackson County, MI District Court Judge Justin

http://www.mlive.com/news/jackson/index.ssf/2012/02/former_jackson_county_judge_ja.html

Certainly there is more to come from this, and while I never practiced in front of Judge Justin, his removal from the bench and now these criminal charges are troubling for any attorney to hear.  You try to do what is right and you expect those ruling on your cases to do the same.  If they aren't, then the justice system really isn't so just.

Child Custody Factors: Conclusion

The holidays have come and gone, and perhaps the reconciliation attempts for your marriage or relationship are no longer successful.  You held out for your presents, and now it’s time to file the paperwork.  The last five child custody factors are here at last so you can be fully aware of what the court will consider.

So far I’ve covered the factors that involve emotional ties between Tommy and his parents, ability to provide guidance, education, food, daily needs, how often mom or dad move around, moral fitness, and the mental and physical health of Tommy’s parents. 

The next factor in the “Best interests of the child” statute, MCL 722.23, is “The home, school, and community record of the child.”  The court wants to know how Tommy is doing in school, if he’s involved in the community (think Boy Scouts, sports, youth groups, neighborhood activities, etc.) and whether or not the potential custody dispute could impact those positive or negative ties.  Obviously if Tommy is hanging around a gang at school, failing classes and smoking things he shouldn’t be while living with mom, it may be time to consider a change.  If he’s doing well, getting 4.0s in all classes, participating successfully in basketball and track, how is the potential custody change going to impact this?  After all, you want him to get a full ride to college, don’t you?

“The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference,” is factor (i).  People are always curious as to what age triggers the court’s consideration of the child’s opinion, and there is no hard and fast rule to this.  I would say the average would be 12 years old, but I’ve seen judges swayed by children younger than this, and also rule against the preference of a much older child.  Most children under 10 don’t necessarily know what’s best for them, and we all know that teenagers ALWAYS know what’s best for them.  Just ask Miley Cyrus.

Mom and dad’s ability to get along is the subject of factor (j) – “The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.”  Does mom talk smack about dad to Tommy?  Does dad refuse to let mom call and talk to Tommy when it’s his parenting time?  I’m not saying dad had to give Tommy $100 to buy his mom a Christmas gift, but he should encourage the relationship between mom and Tommy, and try to co-parent as much as possible.

If there’s been any abuse in the marriage or relationship, the court considers this in factor (i) – “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”  It’s never appropriate to physically abuse anyone and there is a high risk for the safety of the child if the parties have been violent with each other.  It’s called the “cycle of violence” because it is very difficult for people involved in the cycle to get out.  Note that the child does not have to be present during the violence, nor does he have to be a victim of it for the court to consider this factor.  Due to the fact that domestic violence is not always reported, when this subject is discussed, the other side is quick to deny the allegation and it is often a he said-she said situation without any documentation or witnesses.

The last factor is a catch-all, “Any other factor considered by the court to be relevant to a particular child custody dispute.”  If you think there is any other important information the court needs to know that doesn’t fall squarely into one of the other 11 factors, now’s the time to speak up.

As you can see, there are many considerations that the court needs to reflect on when awarding custody.  When I go over these factors with my clients, it often leads to a serious bash session about how horrible a person the significant other is, and we revisit every mistake that person has made in the last 15 years.  Don’t lose sight of heart of the matter – it’s the “Best Interests of the CHILD” statute – you know, Tommy.

Courtesy of Jackson County Legal News, January 19, 2012, Vol. 47, No. 30

Physical and mental health of the parties are a part of custody determination

Hopefully now that Halloween is well past us, you’ve chosen to substitute Tommy’s candy and pop addiction for fruit and milk.  You may think that a court doesn’t care about your or your child’s eating habits, but the physical health of the parties is one of the many factors that a court can consider when awarding custody in a divorce or a custody battle between unmarried parents.

Here’s a quick review of our examination of the “Best interests of the child” factors codified in MCL 722.23 – the first three factors focused on the emotional attachment between the child and his parents, the ability of the parties to guide and properly raise the child, and if they can provide day to day necessities and care.  The next factor is subsection (d), “The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”  This factor looks to the past and how often the minor child has been with each parent, who has lived in the respective homes (do significant others move in and out as regularly as Lindsay Lohan violates probation?), is the home clean and safe, does Tommy have his own room and appropriate items, etc.

Factor (e) is “The permanence, as a family unit, of the existing or proposed custodial home or homes.”  Are mom and dad frequent flyers with U-Haul, moving from place to place due to eviction or relationship breakups, or have they stayed put for quite some time, with no move being anticipated in the future?  Children need a stable routine and a stable residence to come home to each day.  Try to keep your moves to a minimum (unless you’re on “Dancing With The Stars,” but that’s a whole different set of moves).

“The moral fitness of the parties involved” is another item up for custody consideration.  Does either party have a criminal record longer than the receipts on the television show “Extreme Couponing?”  Even if there is no actual conviction for a crime, is it well known that he or she likes to engage in a little weekend activity that stretches the definition of “recreational?”  The court wants to ensure that the children are raised by parents that attempt to instill good morals and ethics, not those who constantly end up on the wrong side of the law.

The next factor is definitely where I get the most humorous answers from clients when we review the statute for court – “The mental and physical health of the parties involved.”  It’s my understanding that almost everyone thinks their ex is crazy, but there are cases where one of the parties suffers from serious mental and emotional issues that he or she may or may not be receiving treatment for.  The courts will often order psychiatric evaluations, require counseling, and ensure that the individual is complying with treatment plans, including medication.

The remaining five factors are up for discussion in my January article.  Don’t miss it (or Tommy’s next dental check-up either – I’m sure there’s more than one cavity building thanks to the candy.)

Courtesy of Jackson County Legal News, 12/8/11, Vol. 47, No. 18