Kids and Divorce

The holidays are a time where most everyone focuses on their kids – getting their pictures taken with Santa, making Christmas cookies and homemade ornaments, and shopping for presents (my favorite part obviously because it involves shopping).  If you ask most parents what was the best day of their lives, they answer the day their child or children were born.  Now that I am a parent, I can absolutely agree with this statement because my daughter is literally the best thing that has ever happened to me.

 When great parents are in the midst of a divorce or custody dispute, they can somehow be transformed into controlling and vengeful individuals who use their children as pawns against the other.  They tell their children too much about “adult business,” and blame the other parent to the extent that the child begins to view him or her negatively (i.e. “I’m sorry Tommy, but Christmas will be slim this year since your father never pays his child support and can’t seem to keep a job for more than 2 weeks.”)  People will fight for everything under the sun and often use their children as an excuse for their behavior, saying that they “need” this or that for little Tommy or Susie, when in reality it is nothing more than an old set of dishes that were packed away in the basement.

I routinely tell clients that it’s not what you want, it’s not what your spouse wants, but it’s what is best for the kids.  If I had a dime for every time that someone came to my office and insisted on “50/50 custody” I would be enjoying a cocktail in Hawaii on Christmas instead of dressing my child in 12 layers of clothing to drive to my aunt’s house 30 miles away. 

 When a couple is together, they set up their households in a certain fashion and divide responsibilities between themselves in a particular way.  Sometimes this means that mom does the majority of the child care while dad brings home the bacon.  As more households now have two incomes, parents often split the child rearing responsibilities more equally, but when the relationship falls apart and a divorce is filed, one parent may not have the resources or appropriate residence to continue doing what had traditionally been done in the past.  What worked while the parties were married often does not work when they divorce.

I completely understand people’s hesitancy towards change, because I am not a huge fan of change myself (it’s practically catastrophic to me every time Target rearranges its store layout).  That being said, change is inevitable and a lot of good can come from it.  I would rather see a child grow up in two separate, yet loving households, than continue to live in a dysfunctional but “nuclear” family.  The end of a relationship, whether the parties were married or not, can be completely devastating to both the parents and the children no matter what their age, but you can and should minimize this for the kids. 

If the children ask what is going on, do your best to try to answer questions with your spouse together and reassure them that mom and dad are going to continue to work together to co-parent them.  Set up the same rules and routines in both households and keep the lines of communication open so that the child doesn’t start to take advantage of one parent’s weakness or guilt about the marriage not working out.  Buying tons of gifts for the kids will not make up for the fact that their parents are splitting up, and keeping things as normal as possible will help them get through the divorce.  If you’re really enjoying your new found freedom, remember that Tommy and Susie don’t need to see every date you take to the various holiday parties.

Be willing to try temporary arrangements for custody and parenting time so that the children can grow accustomed to living in two homes and not seeing mom and dad every day.  Don’t demand joint physical custody just to control your child support obligation – in a lot of cases, couples can deviate from the recommended guidelines and agree on reasonable support.  Blaming the other parent for taking all of your money and “blowing it on who knows what” is not something you should tell your kids, but I can guarantee that children hear this all too often.  Keep your financial problems neutral as to who caused them, and leave them out of all conversations if at all possible.

Complain to your friends and family when the kids aren’t around and try and let your kids be kids as much as you can.   Everyone hopes to relate to his or her children, and to be considered a friend in their eyes.  The best way you can do that is to be a parent first when they are young and need direction, providing them with as much love and security as you can while being respectful and polite to the other parent, as hard as it may be.  You certainly don’t ever want to have to explain to your child why your name is on Santa’s naughty list.

Family Matters

We have all wished that we could magically make our annoying brothers and sisters disappear at one point or another, especially during the “I’m not touching you…” game.  With the proper set of circumstances, this can happen (at least in the legal sense), as the Michigan Court of Appeals opined that terminating parental rights legally terminates the sibling relationship as
well.

In the case Wilson v King, 298 Mich App 378 (2012), Marquita Wilson had her rights to her three children terminated in February 2008, and they were adopted by Diane King.  Less than a year later, in September 2008, Wilson had another child, Mac, and for a period of time, King’s adopted children visited with their half-sibling Mac.  However, this eventually came to an end.  Wilson wanted the visitation to continue, and filed a lawsuit requesting that a sibling visitation schedule be put in place.  The trial court dismissed her action because Michigan law does not provide for such a case to be filed.

Wilson appealed, and interestingly enough, the Court of Appeals affirmed the lower court’s ruling, but for a different reason.  While the trial court dismissed the case as having no basis in law, the Court of Appeals relied on the “effect of adoption” statute, MCL 710.60.  Specifically, the statute states: “The person or persons adopting the adoptee then become the parent or parents of the adoptee under the law as though the adopted person had been born to the adopting parents and are liable for all the duties and entitled to all the rights of parents.”

In the eyes of the law, the “natural” or biological family relationships are terminated and the adoptive family takes the place of the natural one.  Because the three adopted children are now viewed as the biological children of King, Wilson’s child is not any relation to them.  Based on this thinking, the Court of Appeals stated that the “adoption of the three older children legally severed their sibling relationship with Mac.  Consequently, even if a cause of action to obtain sibling visitation exists, [Wilson’s] complaint is deficient because the children seeking
visitation are not Mac’s siblings.”

The Court of Appeals was quick to note that it was not making any determination as to the validity of a sibling visitation claim; however, I highly doubt that this is the last we will hear of these types of cases.  How is it fair and equitable for the court to punish the children for the
actions of their parents?  When considering custody and parenting time, judges will often keep the children on the same schedule as their half-siblings or step-siblings so that the bond between the siblings is fostered.  We also look at the child’s preference if he or she is considered to be of sufficient age.

Because there does not yet exist a proper cause of action for sibling visitation, the best interest factors are not applicable, but I have to wonder if this logic causes more harm than good.  The court is denying visitation between children who know, without a doubt, that they really are
related, regardless of what the law says.

While brothers and sisters can be obnoxious at times, most of us agree that we are better with them than without.  Our siblings are a part of our history, our family makeup, and a link to our past.  It doesn’t seem right for a court to determine, based on the actions of the parents, whether or not they are a part of our future.

Preparing for your divorce consult

No one wants to make an appointment with a divorce attorney, just like no one wants to see flashing lights in their rear view mirror when they are rushing somewhere.  When these things happen, it’s best to be prepared so you can leave with the least amount of harm as possible.

After a divorce consultation, most clients tell me that they learned a lot, but at times the amount of information is overwhelming, along with the impact of a divorce on their family.  In order to have the best outcome to the appointment, I have a few tips as to what you may be expected to bring to the appointment, and what types of issues are discussed.

First and foremost, always bring a list of questions that you have with you to the appointment.  If you hear something you don’t like at the beginning of the appointment (like how your spouse has a great case for spousal support), your mind may go blank and prove rather useless for the rest of the meeting.  Feel free to take notes as to what the attorney said (hey, you have to watch us write down your life story, so you are welcome to write down our comments).  This will save you from having to call or email later and ask the same questions.

Most attorneys will have a detailed intake form, which has spaces for pretty much everything you can think of as far as assets, debts and your personal life.  Just like when you’re at the doctor’s office, you have to answer questions you probably don’t want to, but remember that everything said between you and your attorney is confidential.  You need to be honest – we can’t help you if we don’t know the whole story or are being lied to.

As far as assets, attorneys don’t need an inventory of every item in your house (not yet at least – sadly this does happen in some cases later on).  However, we need to know details about your residence and vehicles– do you own, rent (or lease), mortgage/loan company, whose name is the loan in, present balance, if there was a premarital interest, has there been an appraisal and what is the current value of vehicle.  Relative to your bank accounts, stocks, bonds, and retirement, information needed includes if the accounts are joint or individual, financial institutions they are held at, balances, loans against the accounts, beneficiary information, and if any of the monies were premarital in nature.  Life insurance policies can be whole (with cash value) and term (without cash value), and are also considered in your marital estate, and specifics on those items are typically asked.

Unfortunately, having assets usually means you have debt, so a complete picture of your credit card balances and outstanding loan details can help your attorney better assess how things may be divided up between the two of you.  If you are unfamiliar with the amount of debt in your name, running your credit report beforehand can be very beneficial.

Income and employment benefit information for each party, such as the cost of health insurance, are factors for child and spousal support, and are necessary to run accurate guideline recommendations.  Many people bring previously filed income taxes, which can be very helpful especially if the parties are self-employed or if their income varies significantly from year to year.

Of course you are asked questions about the kids if you have any, how you and your spouse cared for them (jointly or more one-sided), cost of daycare, and what you’d like to see for parenting time and custody.  Explanations as to options for custody and parenting time should be given as they are usually the source of many disagreements during the divorce.

Your attorney wants to help you, but keep in mind that he or she is not a miracle worker – try to go into the appointment with an open mind and realistic expectations.  Otherwise, the retainer fee won’t be the only thing you’re upset about.

Bankruptcy Blues

Divorce often leaves people in a financial bind, whether it’s going from a two income household down to one, or one spouse being forced to work after being a stay at home mom or dad.

At the start of a divorce, I typically advise clients to pull their credit reports – you can do so for free (yes, really, no gimmicks or anything) at www.annualcreditreport.com, which allows you one free report per year from each of the three reporting agencies – Experian, TransUnion and Equifax.  This can lead to an unfortunate enlightening about the financial status of their marriage – often people have no idea that their credit card debt was so high, and the wife had no clue she was on the loan to the useless fishing boat he just had to have (who wants to stab worms and pull hooks out of slimy, scaly fish anyways?).

When divorcing parties have all debt and no assets, bankruptcy becomes high on the list of things to talk about with your attorney.  Bankruptcy law is a very specialized area and individuals should seek expertise counsel to advise them as to their particular situation.  At times it may be more advantageous for a person to file bankruptcy with their spouse instead of individually, or it could be better to wait until the divorce is finalized as opposed to doing so while the divorce is ongoing.  In some cases, a person may not even qualify to file bankruptcy, so the option may be completely off the table.  Your family law attorney likely knows several bankruptcy lawyers that can assist you in making the right decision.

If you do decide to file bankruptcy during your divorce proceedings, doing so will keep you married longer.  As part of the divorce, your marital assets and property are divided between the two of you, and that division is then set forth in your final judgment.  However, when either one of you file bankruptcy, an automatic stay is triggered which stalls the divorce action as a court cannot divide any property while the bankruptcy is ongoing.  Once the bankruptcy is complete, the divorce starts chugging along again and the property can be divided.  Parties must still stay on top of their divorce matter even if a bankruptcy is filed, because issues such as custody and parenting time can be addressed and potential settlements can be discussed as well, which will finalize the case much quicker once the bankruptcy proceedings are resolved.

Certain items cannot be discharged in bankruptcy, specifically support obligation debt and property settlement debt that is owed to one’s spouse, ex or child.  If a judgment includes a provision about property settlement, it is still nondischargeable but will not be as high up the totem pole as support obligations; therefore it’s important to distinguish between the two in a judgment.

It is not uncommon for one spouse to take control of the marital finances, leaving the other relatively in the dark about the parties’ savings, debts and expenses.  Divorce is not the best time to find out about these financial indiscretions, and it’s best to take an active role from the start – you don’t have to take over the dreaded obligation of balancing the checkbook, but look at all the bank statements and bills when they arrive (by mail or electronically).  After all, you’re already at an attorney’s office – at least try to save yourself from more disappointment.

The Company You Keep

People say you if lay down with dogs you’re going to wake up with fleas.  While offensive to my dogs, who have always been flea free (knock on wood), this theory holds true with respect to who you expose your children to.

Just because you divorce or separate from your significant other, no one expects you to become a hermit or monk, never to go out or date again.  However, the courts do expect you to make smart choices about who you choose to fraternize with if you have children. 

When clients tell me they started dating again, especially during the divorce, I immediately ask if he has a criminal record and if he has met the kids.  People make mistakes and sometimes the past really is left behind, so it’s probably not going to cause any concern if you start planning picnics with your new boyfriend and the kids, even if he had a joyriding conviction at age 18.

Then there’s the person who chooses to date a man twice convicted of domestic violence or let a friend who’s facing a drug charge move in to help pay the rent.  If you don’t have kids, chances are good no one but your parents and friends are going to judge you.  However, when your ex comes over for parenting time, he will notice that “I just went to a Jimmy Buffet concert” smell wafting from your new roommate’s space and start asking questions.  Pretty soon these questions lead to an internet criminal record search and a trip to an attorney’s office.

Even if you don’t expose your children to your new questionable friend, your poor decisions impact your kids – if you can’t make good choices for yourself, there’s concern you won’t make good choices for your kids either.  This can be even more concerning if your past contains some of the same mistakes and activities (i.e. drug use, alcohol abuse).

Depending on the seriousness of the criminal charges or convictions, your ex may very well be justified in filing a motion with the court for a no contact order between your children and Mr. or Ms. Not So Perfect, or it could go as far as a change in parenting time and custody.  I have seen courts order supervised parenting time, suspend parenting time, or set the matter for a more in depth hearing to determine the outcome, all because of the company one parent chose to keep.

For most people, exposing their children to a violent person or someone with a lengthy criminal record would not be an option under any circumstance.  However, emotions can definitely cloud one’s judgment, and the need for rental income can be very tempting when you go from a double to single income household.  If you do choose to make new friends with some unsavory characters, remember that the courts have to look out for the best interest of your children, especially if it appears you are not.

Medical Reimbursement - Watch the clock

The worst part about getting your mail every day is the prospect that it contains bills – and if you or your children have health concerns, it can make walking to the mailbox more like walking the plank. 

Most divorce judgments and child support orders contain a provision where the parents have to divide the cost of unreimbursed medical expenses for the children.  Typically, the parent who receives child support has to pay a certain amount of money out of pocket, called an “ordinary medical expense,” before the other parent’s percentage towards the unreimbursed costs commences.  At present, the 2013 amounts are:  $357 per year for one child, $715 for two, $1,072 for three, $1,430 for four, and $1,787 for five or more children.

If an ordinary medical expense is included in your court order, the parent paying support is actually contributing to this annual amount each month in his child support based on a percentage determined by the child support formula.  Even if you don’t reach the out of pocket amounts, you don’t have to return the money to the parent paying support.

Let’s say you pay the ordinary medical expense before the year runs out, and you now want your ex to pony up his percentage towards unreimbursed medical costs for your child.  How do you go about doing this the right way?

Naturally, there’s a form for this, called “Client Demand for Medical Payment” (SCAO Form FOC 13a) and instructions as well – you can conveniently find these on the Jackson County Friend of the Court’s webpage.  Fill out the forms appropriately, and be sure to attach all supporting documentation so there’s no question that your ex owes that amount or that you have paid your portion.

One of the biggest problems people face is waiting too long to ask for the reimbursement – there are of course time limits on basically everything in the law.  The magic number is 28 days – you have to request the payment from your ex within 28 days of the actual expense or within 28 days of your insurance company finalizing its claim.  Once you’ve done so, your ex has 28 days to respond to your request for payment.  If he doesn’t, you can ask the Friend of the Court for enforcement (assuming you utilize the FOC’s services of course).

In order for the FOC to assist you, there are time frames yet again, conveniently listed at the bottom of the form for your reference.  In addition to the 28 day limitations described above, you must also submit your enforcement request to the FOC no later than one year after you paid the expense, and within six months after your ex defaults in paying the amount required.  If you have health care insurance, you have to submit your claims to the insurance company within two months after the expense was incurred. 

Being organized and keeping good records is a must in ensuring reimbursement for your children’s health care costs.  Failing to follow any of the time frames means you may end up paying these costs on your own – let’s face it, the doctor’s office is probably not going to be sympathetic to you missing a deadline.

The Burnett Case - a good summer read

If you want a drama filled read involving lawyers, dementia and a sex change, look no further than the recently published Court of Appeals Burnett case (with an absurdly long actual case name – In re Estate of Devon Pearl Burnett, Devon Pearl Burnett, by and through her Guardians, Joseph Buxbaum and Beryl Ellen Niles and her conservator and personal representative, Beryl Ellen Niles v Bobbie Eliza Burnett, Court of Appeals Docket No. 309640, April 16, 2013).

The Burnetts were married in the ‘80s in Ann Arbor and later moved to Pennsylvania.  One day Mrs. Burnett decided to visit her daughter, Beryl Niles, in Michigan and never came back (apparently the marriage was not so good at this point).

Mrs. Burnett’s kids became her guardians in her advanced age when dementia reared its ugly head, and they filed for divorce on her behalf.  Mr. Burnett was not at all pleased about this and filed motions for summary disposition, both of which he lost.  A divorce judgment was entered and he subsequently appealed. 

Mr. Burnett’s first motion seems to hold more merit – he contended that guardians and conservators had no legal right to file a divorce on behalf of an incapacitated individual, and therefore, the divorce complaint had to be dismissed.

Unfortunately for Mr. Burnett, this exact legal issue was already decided in the 2003 case Houghton v Keller, 256 Mich App 336, in which the Court of Appeals held that indeed an incapacitated person’s guardian could file a divorce on that person’s behalf.  To top it off, the Michigan Court Rules give guardians and conservators the legal right to do exactly what Mrs. Burnett’s children did, and file for divorce on her behalf.  This is why one should do his homework before filing pleadings.

The second motion filed by Mr. Burnett was a bit more of a stretch.  He was born a man but decided to undergo gender reassignment surgery and became a woman in 2003, well after the parties were married in 1984.  His argument was that since he was now considered a woman, and Michigan law doesn’t recognize same-sex marriages, their marriage was not valid so a divorce could not be granted.

On its face this argument seems to lack common sense, and to me it appears that grasping at straws is putting it mildly.  The Court of Appeals readily admitted that same-sex marriage is not recognized in Michigan, but here’s the obvious problem with Mr. Burnett’s argument – at the time the parties entered into the marriage contract in 1984, he was indeed a man and Mrs. Burnett was indeed a woman.  Voila, valid marriage contract which entitled her to a valid divorce years down the road, regardless of his gender at the present time.

My personal opinion was that Mr. Burnett did not have a great case from the start and it’s not surprising that he lost his arguments, albeit very interesting ones that make for a good read.  Interestingly, Mrs. Burnett died during the course of the case – making me wonder if Mr. Burnett believes in divine intervention.

Parenting Time Factors: Part Dos

This is the second part of a two part series.

Last month we examined the first five factors for parenting time that the courts should consider, outlined in the Michigan statute, MCL 722.27a(6)(a-i).  Now it’s time for the last four, but before I start, a quick comment on the fourth factor from the last article, “the reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.”

I had explained this in terms of the abuse between the parents during the exchange of parenting time, but failed to mention that this factor can also involve the actions of a minor child.  Unfortunately, at times a child can be abusive to his or her parent, and while I’ve thankfully only seen this in a limited number of cases, it does happen.  This factor can relate to the abuse of a parent at the hands of a child or the other party, and both possible scenarios should be taken into consideration by the court.

Now, moving on to factor six, “Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.”  Is the schedule proposed or ordered something that mom or dad can actually exercise?  Work shifts, where one lives, the distance necessary to travel and other considerations are all things that can impact the reality of whether or not the parenting time schedule will actually function properly and allow the parent to see the child on those designated days and times.

The next factor is “Whether a parent has frequently failed to exercise reasonable parenting time.”  This is why I harp on my clients to make sure they utilize the parenting time schedule they presently have to the fullest, because it can come back to bite you if you don’t.  Obviously if you’re not using all the time you have now, what are the chances that a judge will increase your time in the future?  Not likely.  And if the motion is to reduce a parent’s time with his or her child, there’s a greater chance it will be granted if the parent isn’t complying with the current order.  So please dear parents, use your parenting time!

Have you ever thought that your ex will use parenting time to hide or keep the child from you?  That’s the subject of the next factor, “The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody.  A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.”

If your ex has ever used parenting time as a way to prevent you from having your child during your rightful time, has ever refused to give him or her back on time, or threatens any of this, it needs to be taken into consideration when modifying or establishing any parenting time schedule.  A lot of clients are fearful of this happening, and the person threatening this behavior will often stop after a stern talk from his or her attorney that this is not a good idea under any circumstance.  However, in a domestic violence situation, this is much more of a reality and all such comments and behavior need to be documented and reported quickly.

The final factor is what we call a “catch all,” in that you can include whatever else you think is relevant, as the statute literally states, “Any other relevant factors.”  People will toss in concerns with illegal behavior, abuse, moral issues and the like in an effort to prove their case in court.

The court will look at the Best Interest of the Child Factors, MCL 722.23, for parenting time also, but it is imperative to go through the various statutory parenting time factors when pleading your case to ensure that you have everything covered.  In doing so, you’re giving yourself the best chance possible at success.

Parenting Time Factors, Part Uno

I have seen more sun in the last few weeks than I’ve seen for about five months, which is a reminder that summer is coming faster than we think.  In the family law world, this also means that plenty of parents are gearing up for their often extended summer parenting time.

Naturally, there is a statute in Michigan that provides the court with factors to look at “when determining the frequency, duration, and type of parenting time to be granted.”  MCL 722.27a(6)(a-i).  The first five factors will be examined in this article and the next four in May. 

The first factor is “[t]he existence of any special circumstances or needs of the child.”  This can apply when your child has a physical or mental disability which requires frequent therapy, hospitalizations, doctor appointments, etc. that would make it difficult for parents to have equal parenting time or parenting time during the week.  Most parents are fortunate enough not to have this factor apply, but it certainly does come into play when your child has special needs.

“Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing,” is the second factor.  This one really irritates my male clientele when their children are babies because many believe that their ex should be required to pump her breast milk and give it to the father to use during parenting time.  Often the father’s belief is that if this were required, and he was provided with all of the milk the baby needed, nothing would prevent him from having equal parenting time with the infant.  However, the courts will still consider the fact that only mom can provide this type of nutrition and therefore the child has to be physically present in her care more often than dad’s.

The third factor is “[t]he reasonable likelihood of abuse or neglect of the child during parenting time.”  Clearly if there is a realistic chance that the child will be harmed while in the care of a parent, parenting time needs to be limited, supervised or all together suspended.  Past instances and evidence of abuse, including photos, police reports, valid protective services claims and the like are often used to show that this factor is relevant to a particular case.

Factor four ties into three – “[t]he reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.”  If there was domestic violence in the parents’ relationship, and they are frequently swapping the kids for parenting time, it stands to reason that increasing contact with each other in turn increases the possibility that domestic violence could erupt during the exchanges. 

Traveling for parenting time is also a significant consideration, especially with more parents having to move away to find better or any employment.  Specifically, the statute states:  “The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.”  If the parents live a significant distance apart, whether in the same state (think about the UP in Michigan), or in different states, putting junior on a plane or through a 4 hour car ride one-way isn’t always going to be feasible.

In these cases, it makes more sense to offer the parent longer periods of parenting time so that junior is not constantly trapped in the car, missing out on sleep and school events.  Instead, the child can spend more time in one place, but less frequently, to cut back on issues with travel.

Most people agree that parenting time should change as the kids age and change, and the above five factors are only some of the statutory factors the court may consider – keep a look out for the last 4 in May!

Tax time and the kiddos

Since my dog Verdict was born on April 15, I always remember her birthday and tax day, the former of course being a much more enjoyable holiday to celebrate.  She wanted me to tell you that all birthday treats, bones and toys can be sent directly to her, “Verdict,” care of my office.

When tax day rolls around each year, clients become concerned about who gets to claim Tommy as an income tax dependency exemption.  It is often a disputed subject during the divorce as the exemption can provide significant financial benefit to a parent.  Since 1985, the IRS mandates that the custodial parent receive the right to claim the child’s exemption, unless the custodial parent has voluntarily agreed to release the exemption to the non-custodial parent in writing.  Plenty of parents do agree to alternate the exemption each year if there is just one child, or each parent takes one child if there are two children, etc.

IRS Form 8332, “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent,” is the form that the parent needs to fill out.  Part 1 provides for the release of the exemption for the current year only.  Part 2 of the form provides for the release for all future years relative to that child’s exemption.  Part 3 allows for the revocation of the release of that claim.  To check out the form yourself, go to http://www.irs.gov/pub/irs-pdf/f8332.pdf. 

All of my Judgments of Divorce or other orders incorporating language about the child’s income tax exemption require the parents to cooperate and fill out this form as it needs to be filed simultaneously with the non-custodial parent’s income tax return.  The IRS provides for exceptions to this depending on the date of your judgment or agreement, and if the language complies with what it deems to be “substantially similar to Form 8332.”

Another common question that arises is whether or not the client can change the judgment’s terms regarding which parent receives the exemption.  Well, that depends on what the judgment states.  Per Fear v Rogers, 207 Mich App 642 (1995), the child’s tax exemption can be treated as part of the support provisions of the judgment or the property division provisions of a judgment.  The Fear court stated that the exemption normally should be considered part of the child support award in a judgment, but the court “was not persuaded that the federal income tax dependency exemption is so intricately related to child support that it would be appropriate to preclude parties to a divorce action from ever choosing to treat the income tax dependency exemption as a property issue rather than a child support issue.”  Id. at 646.

So, it boils down to where the language is contained in your paperwork.  If it is contained within the child support section, it is modifiable.  Some reasons for modifying the exemption award would be a change of custody or parenting time – if the original parent awarded the exemption in the judgment no longer has custody, the parent who now has custody should be awarded the exemption. 

If the language is contained within the property division section of the judgment, then it is treated as part of the property settlement, making it non-modifiable, absent an agreement between the parties to change it. 

Wherever I place the exemption provision in the judgment I specifically state that both parties understand that the provision is either modifiable or non-modifiable in the future, so that everyone is on the same page and doesn’t gripe that they had no idea whether or not it could be changed (although to be honest, the griping will likely occur regardless).

Be sure to check out where your income tax dependency exemption is contained in your paperwork and if applicable, complete IRS Form 8332 as this can save you from a headache when it comes around to tax time each year.  I think we all agree that tax season causes enough strife as is.

Very interesting article on surrogacy and Michigan

http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html?hpt=hp_c1

Hague Convention on Civil Aspects of International Child Abduction

Plenty of parents express fear that their child’s father or mother would withhold the child from the other parent, or sneak out of the state or country with the child, never to be seen from again.  Most of the time, this does not happen, but if it does, it’s generally across state lines where authorities can more easily locate and reunite the child with his mother or father.

However, we have all heard the horror stories that are plastered across the internet where a parent takes his children to visit relatives in a foreign country, never to return.  The aggrieved parent flies out to that country, displays legal paperwork and begs for help at every embassy she can think of, only to be turned away because the country’s officials won’t recognize these documents as official.

In an effort to prevent and rectify international parental abductions of children, a myriad of countries have agreed to abide by the terms of the Hague Convention regarding international child abduction.  The objects of the Convention on the Civil Aspects of International Child Abduction, which concluded October 25, 1980, are “a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”  See Chapter 1, Article 1 of the Convention.

However, not every country abides by the terms of the Convention, which is something American father Colin Bower knows all too well.  In August 2009, Bower’s ex-wife, an Egyptian and British citizen, took the couple’s two sons to Egypt and has refused to return them to Bower, who has sole custody of both boys.  Because Egypt is not a party to the Hague Convention on Child Abduction, the cooperation of the country is pitiful at best.  While Bower has been allowed a few supervised visits with his children, he is still being prevented from taking them back to the United States. 

A full list of those countries who are convention partners can be found on the website:

http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html#.

Michigan’s parenting time statute, MCL 722.27a, has recently been amended to require specific language be contained in all parenting time orders relative to international child abduction.  The orders must contain a prohibition “on exercising parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction.”  However, this does not apply “if both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction.”  See MCL 722.27a(9).

To some people, a piece of paper means nothing and no amount of language can actually prevent something from happening in cases like this.  If people abided by all court orders, I would probably be out of a job.  However, amending the parenting time statute is an important step that Michigan lawmakers have taken to recognize the serious issue of international child abduction, and it will hopefully cause parents to think twice about any actions they may take.

Interesting article on protecting what you send electronically!

http://www.cnn.com/2013/02/04/tech/mobile/breakup-data-precautions/index.html?hpt=hp_c4

Same-sex marriage and the law

Brangelina told the world that they wouldn’t get married until everyone could get married, including people of the same sex.  Based on their engagement and soon-to-be wedding rumors, it sounds like they can’t wait that long.

In 1996, the Defense of Marriage Act (DOMA), 1 USC §7, was passed by the Federal Government, and it states the following:  “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”  The Federal government cannot recognize same-sex marriages and states do not have to legitimize same-sex marriages that occurred in another state. 

On October 18, 2012, the United States Court of Appeals, Second Circuit, struck down DOMA, holding that it violates the equal protection clause in the Constitution, being only the second Federal court to do so.  The Supreme Court of the United States will be hearing two cases on same-sex marriage in 2013, with an anticipated decision in the summer, just in time for all of the mega-popular summer weddings of course.

While some states have passed laws allowing for same-sex marriage, Michigan isn’t one of them.  Several states will issue marriage licenses to same-sex couples, or provide for a legal union similar to marriage for those of the same gender.  Various companies and employers will also provide health care benefits to “domestic partners,” in an effort to conform to the rapidly changing public opinion to recognize the validity of same-sex relationships.

So what’s the harm in letting same-sex couples get hitched?  As the saying goes, let them be as miserable as the rest of us.  Frankly, from a family law legal perspective, there are more problems with not letting same-sex couples marry. 

Let’s say a lesbian couple decided to have a child, and one of the partners becomes pregnant after artificial insemination.  She is listed on the birth certificate as the mother.  And the other mother?  Well, she’s not on the certificate, or Affidavit of Parentage…or anywhere else.  So the couple continues their relationship for years, and then decides to break up.  Well, in Michigan, what rights does the non-biological mother have to the minor child that she’s raised as her own?  None.  She can’t go out and file a paternity or custody claim like any boyfriend who’s fathered a child with his ex-girlfriend, because she’s not a biological parent.  She’s also not the husband of the bio mom, and their child was not born during any legally recognized marriage.  Further, same-sex couples cannot legally adopt a child together in Michigan. 

The Michigan Supreme Court has not recognized custody rights for gay, unmarried individuals who are not biologically related to the child at issue, leaving the non-biological partner without any legal remedies.  Some ex-partners may agree to a joint custody arrangement, with parenting time, support, etc. and simply never file any papers with the courts, which happens in both same-sex and heterosexual relationships that go awry.  However, like most break ups, things are not amicable all the time, leading to one parent unfairly withholding the child from the other. 

If you’re the other half of a failed same-sex relationship, you may be denied the opportunity to continue to raise your child, which can have a catastrophic impact on that child’s physical, emotional and mental wellbeing.  It appears that the child’s best interests, which are to be the primary focus of the court in deciding custody and parenting time, only applies to heterosexual relationships.