Hilarious You Tube Divorce Dance

Check out this link to a hilarious You Tube video - this is what we all wish court was like!

http://www.youtube.com/watch?v=zbr2ao86ww0&feature=youtube_gdata_player

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

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

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

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

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

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

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

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

First stop on the road to divorce: FOC Conciliation Hearing

Over the next few articles I am going to discuss the top three most common hearings that occur during a divorce action.  Motions come up here and there, but these three things will be faithfully set in each and every case.  Attending them may or may not be necessary, but chances are good you’ll go to at least one of them.  The first one is the subject of this article – Friend of the Court Conciliation hearing.

When you file a divorce action that involves minor children, you have to wait a minimum of six months before the court will divorce you.  There are exceptions to this rule, but the chances of you being divorced in less than six months are about as good as my husband magically turning into David Beckham (or, in his opinion, me turning into Faith Hill).  As one would imagine, a lot of parties separate before or during the divorce action, and they want to have a laid-out plan for when they see their kids.  In order to speed this process along, the Friend of the Court in Jackson County sets a meeting called Conciliation.  The purpose is to lay out the basics when it comes to the kids while the divorce is pending.  Five topics are discussed at Conciliation – custody (both legal and physical), parenting time (who has the kids when), child support (who pays who and in what amount), child care contribution and health care contribution (both factored into child support). 

A lot of attorneys I know are split on whether or not to attend Conciliation with their clients.  Because it results in a recommendation for a court order, some consider it crucial to be there.  If I do go, most of the time I end up sitting there like a bump on a log as the Conciliator really just wants to hear from the clients and not from the attorneys.  However, if the client feels better with me present, or if opposing counsel is attending, I will gladly go.  It obviously saves the client moolah if I do not attend.  If she feels comfortable handling the matter on her own, then I’d rather sleep in (a lot of these hearings occur at 8 am and I live an hour from work.  Beauty sleep is important you know.  That’s the only way I’m going to wind up looking like Faith.)

The child support factors, including child care and health care are fairly straight-forward – the Conciliator takes a look at each party’s income, tax status and exemptions, and health care available through employers, and plugs that information into the computer program which magically spits out a number for one party to pay the other.  Unreimbursed health care costs for the kids are also divided between the parties based on the abracadabra method as well.

Custody and parenting time is where it can get brutal.  The Conciliator is supposed to take a look at the 12 factors outlined in the Best Interests of the Child statute, MCL 722.23, consider each party’s strengths and weaknesses, and make a determination in the child’s best interest as to which parent should have custody (or shared custody), as well as the days and times the child spends with each of her parents.  Most of the cases end up with joint legal custody, meaning that both parties have the right to participate in the important life decisions that come up in the child’s life – education, medical, religious upbringing, etc. 

Physical custody can either be sole or joint – sole is when one parent has the child in his or her care most of the time, and the other parent has weekend visitations and perhaps a mid-week visit.  Joint physical custody is when the parties have an equal or approximately equal parenting time schedule and share roughly the same amount of time with the kids.

Because parenting time overnights are considered in the child support formula, you hear all sorts of accusations that he only wants joint physical custody so that he doesn’t have to pay oodles of child support to the other parent, or if he has to pay full guideline amount he’s going to default on the mortgage, she leaves him no choice…it honestly sounds like a broken record after a while, similar to how the radio stations ruin good songs by playing them once an hour, every hour, every day.

If the parties can reach an agreement on the five Conciliation issues on their own, the Conciliator can draw that up and have everyone sign right then and there.  The attorneys can also prepare the paperwork, but surprisingly, when the clients hear it’s free for the Friend of the Court to do so, they tend to like that option better.  If the parties still live together, they may choose to reserve the issues until they separate.

Sometimes you can’t reach an agreement if your life depended on it, and the Conciliator makes his or her own recommendation and proposed order on the issues presented and submits it to the parties and the court.  If you don’t like what the Conciliator has to say, you can object to it within 21 days after service of the recommendation and order.  Then the court can decide what stays and what goes.

If possible, I think it’s better to try to reach an agreement instead of leaving it in the hands of someone who only meets you for a couple of hours.  You and your spouse should know what’s best for the kids, but spite and otherwise unfriendly emotions that crop up during divorce can alter one’s perception substantially.  Focus on the kids and the clean slate for the future – not on the old dirty laundry.

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

Clarification of grandparents' rights

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

Social Media disclosures can affect divorce proceedings

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

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

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

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

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

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

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

Marijuana and family law? An unlikely pairing

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

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

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

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

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

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

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

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

Adopting step-children creates an 'instant family'

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

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

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

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

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

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

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

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

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

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