ALLISON BATES FOR JACKSON COUNTY, MI PROSECUTOR!

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

Don't litigate, mediate!

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

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

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

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

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

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

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

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

5 things I wish all attorneys did

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reality of pet custody battles

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

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

This is the third part of a three part series.

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

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

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

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

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

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

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

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

Spousal Support Factors - show me the money! Part Two

This is the second part of a three part series.

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

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

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

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

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

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