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!