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

Factors used by the courts in determining child custody: Part One

If you have children, they are going to be the most important aspect of your divorce (unless you’re parenting a la Darth Vader).  The court has to use a specific set of factors to determine custody, which are set forth in Michigan’s “Best interests of the child” statute – MCL 722.23.  There are 12 total factors that I will discuss here and over the next coming articles.

It’s important to distinguish between the two types of custody – legal and physical.  Legal custody pertains to which parent can make and participate in the important life decisions of the child – education, medical, religious upbringing and the like.  It does not include things like whether or not your child can have Butterfingers® and Mountain Dew® immediately before you turn him over to your ex for parenting time. 

Legal custody can be either sole, where only one parent makes the decision, or joint, where the parents share in the choices for their child.  I would venture that joint legal custody triumphs in 95% of all cases end, as most parents can communicate well enough to be involved in their child’s important life decisions.

Physical custody refers to which parent has the child in her or his physical care the majority of the time.  It is also either sole, where one parent has the child most of the time, and the other typically has mid-week and weekend visits, or joint, where the parents share an equal or approximately equal parenting time schedule.  Since your parenting time is what actually controls when you see your children, the terminology for sole or joint physical custody often has more of an emotional or implied meaning rather than actually affecting how much the children are in your care.

All of that being said, the first factor is “The love, affection, and other emotional ties existing between the parties involved and the child.”  This refers to which parent the child is attached to emotionally – who does Tommy look to when he is hurt, go to when he cries (besides grandma).  Most of the time this factor is equal for both parents, but of course when divorcing some couples feel the need to “one-up” the other and act like the child only seeks mom or dad’s attention.  Kind of like the person in dog obedience class that puts bacon grease on his fingers so that the dog worships him and it appears as if that person has mad training skills.  (I’ve seen it happen people – such a disgrace).

The second factor is “The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.”  This factor plays off the first and looks at whether or not each parent exercises proper discipline and parenting skills, encourages and assists them in school and religious upbringing if applicable.  Among other things, the court can consider if parents use corporal punishment (i.e. spanking), time outs, or other types of child-rearing techniques; how they show the child love (hugs, telling him); if the parents have high school degrees, post-secondary/graduate education, attend parent-teacher conferences and if either parent is religious or attends church.

Factor three is “The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs.”  I find that parents really enjoy bashing each other with this category, claiming “I carry the health insurance and pay for it,” or “He doesn’t even know the name of the doctor, let alone when Tommy’s due for vaccinations.”  (HINT – it’s not always every three years like Fido’s rabies shot.  On the plus side, you don’t have to license your children).

Employment is obviously a heavy hitter in this factor, because if you don’t have a job it makes it very difficult to provide your child with day-to-day necessities.  In this economy, as long as you’re trying to gain employment and don’t have a pattern of being jobless, this factor won’t be too damaging if you’re unemployed.

Stay tuned for the rest of the child custody factors, and in the meantime, please swap out Tommy’s Mountain Dew® for water.

Courtesy of Jackson County Legal News, 11/14/11, Vol. 47, No. 11

The third and final hearing - The Divorce Trial

The divorce trial is your swan song – the final culmination of what you’ve been fighting for all these months.  Despite valiant efforts, you can’t reach a total agreement with your spouse – maybe you’ve agreed on some but not all of the issues, or perhaps everything is up for grabs.

Most divorce attorneys will recommend that you settle your case if you can – regardless of the judge’s reputation and skill, the truth is the judge barely knows you and will most likely only listen to your arguments for a few hours.  In my opinion and experience, the majority of divorce cases settle (I’ve heard a statistic that as high as 97% of divorce cases resolve without a trial).  Do whatever you can to minimize the outstanding disputes in your divorce, as this will lessen the number of issues the judge has to resolve as well as reduce your attorney fees and court costs.  If you can settle some or all of the property issues – who gets the house and cars, how the financial assets (bank accounts, retirement, non-retirement investment accounts, etc.) are going to be divided – you can put an agreement on the record as to those specific items and go to trial over the rest.  In doing so, you’re left with a smaller portion of your estate to wage battle over.

Custody, parenting time and child support are the most common deal breakers in a divorce case, and rightfully so – the time you spend with your children is priceless and it should be the paramount issue in your matter.  Stay tuned for future articles that will discuss the “Best Interest Factors” that the court has to consider when making a custody ruling.

During the trial, you get to call the witnesses that you listed on your previously filed witness list, and your spouse is able to do the same with his.  Both attorneys can cross-examine the other spouse’s witnesses, mitigating any damage that person created, or call a rebuttal witness to challenge what an earlier witness testified to.  The parties themselves are the most important of those called, and hopefully your testimony as well as those of your supporting witnesses will make your argument favorable to the judge.

It’s important to listen to all of your attorney’s prep tips for your testimony – wear appropriate clothing (courtroom appropriate, not Saturday night bar hopping appropriate), answer questions honestly and concisely, and don’t be afraid to say you don’t know the answer to a question or that you can’t remember the answer.  If you don’t understand the question, then ask for it to be rephrased in a way so you can better know what is being asked of you.  Control your emotions and behavior as much as possible – no eye rolling or snarky remarks.  No matter what the facts, you certainly do not want the judge to see you as an “unlikeable” person with a vendetta against your spouse.

Exhibits are used to buttress your argument or perhaps impeach something your spouse testified to (although I’m sure he legitimately forgot that he withdrew $20,000 in marital funds the day before he filed for divorce).  The attorneys make closing arguments to solidify your position and then…you wait.

Don’t expect the judge to make a same-day decision, although sometimes that does happen.  It’s more likely that the judge will take it under advisement where you will wait a couple of weeks before he calls the attorneys to a hearing to issue his ruling, and some judges submit a written opinion that is shipped out to both attorneys after the trial.  You can appeal a judge’s ruling, but most parties don’t have the resources or time to do so and stick with what the judge decided, even if they do not believe they came out on top.

You’re never going to be completely happy with the outcome of your divorce, but the more control you maintain over it the more likely you’re going to be able to live with the final decision.  Settle what you can, take the rest to trial and listen to your attorney’s advice for what to do – and save the debut of the little black dress that screams “I’M SINGLE!” for after court.

Courtesy of Jackson County Legal News, 10/17/11, Vol. 47, No. 89