Erasing your crime

Occasionally we all do something that we regret and we look back and wish it could be erased from the memory of those who witnessed it.  Past criminal acts certainly fit into this category, and if you meet certain qualifications, those acts can disappear from the public’s eye.

If you’re looking to set aside a criminal conviction, also called an “expungement,” the State Court Administrator’s Office (SCAO) has a great packet which includes eligibility questions, instructions and forms to help you do this.  The forms you will need are MC 227 (Application to Set Aside Conviction) and MC 228 (Order on Application to Set Aside Conviction).  I can’t explain everything in my article, so obtaining this packet will give you extensive details and instructions as to what to do, and the great internet will provide you with the packet at the click of a button!

In order to be eligible to set your conviction aside, you must only have ONE conviction in your past, not including two minor offenses, as set forth in MCL 780.621(10)(b).  If you have a conviction from a federal court or another state, you’re not going to be able to apply.  The type of crime committed also makes a difference – for example, you cannot have been convicted of CSC (Criminal Sexual Conduct) in the first, second, or third degree, nor can you apply if you were convicted of an assault with intent to commit a CSC crime.  Being convicted of a felony or an attempt to commit a felony, where the potential max sentence is life behind bars, will bar you from an expungement as well.  Wanting to erase a driving or traffic offense is also a no go, and it must be at least five years from the date of your conviction and if you were thrown behind bars, at least five years after you were released from the clink.

If you don't fall into one of the categories above that exclude you from applying to set your conviction aside, you can likely get 'er done.  Now you have a little to do list in order to set this in motion.  You first need to obtain a certified copy of your conviction, which is relatively easy as you simply need to go to the clerk’s office and obtain a certified copy of the Judgment of Sentence, Order of Probation or Register of Actions in your case.  You will be charged a fee for this document, so bring some loot with you to pay up. 

Your next step is heading to a local police department for some fun finger painting – I mean finger printing.  The department will likely charge you a fee for this, but it’s usually not too bad.  Not surprisingly, the State Police will be checking on you and using these prints to determine if you have other convictions.  You’d be amazed at how many people claim to have forgotten about prior convictions or say they didn’t know they had them.

Once you have your certified copy and fingerprints, you need to sit down and fill out form MC 227 carefully and make the appropriate number of copies (all explained in the handy packet).  You must sign this form in front of a notary public or court clerk, file your application, paying another fee ($50 this time) and mail it out to the appropriate parties (prosecutor, Attorney General and State Police).  You’ve got to file a Proof of Service with the court to prove that you served the docs on the above parties.

It’s wise to wait to set your hearing until you have received your Michigan State Police background check report – usually it’s safe to say 6-8 weeks from when you file your application as the police can take time to process your request.

Be aware that both the prosecutor and Attorney General may attend and object to your application, and the victims of certain crimes can also appear as the prosecutor has to notify them of your application.  The court will make the ultimate decision as to whether or not your application should be granted, which is why you need to bring form MC 228, the Order on Application to Set Aside Conviction, with you to the hearing.  If the State Police report came back indicating no other crimes and the prosecutor and Attorney General have not objected to your application, there’s a good chance you’re going to get your wish.  If there are objections, you may still have your conviction set aside provided you have good evidence of how you have changed and a good argument as to why this should occur.

The court clerk should send the copy of the order to the appropriate parties, but I’d suggest making sure this happens, and if your application was granted, check your record to verify that your conviction no longer appears.  Again, do realize that the State Police will still keep a nonpublic record of your conviction, but to the public, it will look as though it never happened.

Here's the links to the packet and forms- http://courts.michigan.gov/Administration/SCAO/Forms/courtforms/generalcriminal/mc227.pdf
http://courts.mi.gov/Administration/SCAO/Forms/courtforms/generalcriminal/mc228.pdf

 

Three common divorce myths debunked

When people come to see me, I often hear the same concerns over and over again, which is not surprising given that the divorce process is like a train ride and all of the issues come directly to the depot – my office.  I hope to debunk three of the most common divorce myths in this article.

The first myth is the belief that when a couple is awarded joint physical custody of their kiddos, no one will pay child support.  People often think that an equal parenting time schedule automatically relieves them of the financial obligation to the other parent, but this is simply untrue.  Child support is partially based on the number of parenting time overnights one has, but income is an enormous factor in calculating child support (among other factors).  Even if you have exactly 182.5 overnights per year with Tommy, but you earn twice as much as his mom, you’re going to wind up paying child support.  The income differential between the parents will affect whether or not someone will pay support regardless of custody.  Of course, some parents will agree to reserve child support when they share custody, but if the Mrs.’ attorney runs the child support program and tells her even with joint physical custody she’s entitled to $200 or $500 per month, don’t bet that this will be the case (Tommy needs as many fabulous shoes as she has).

The second biggest myth revolves around the abandonment of your home.  People often separate during divorce and vacate the marital home, leaving the other party to turn it into a bachelor (or bachelorette) pad.  Many people worry that this means they have permanently abandoned the home, can’t ever come back, and that they’ve forfeited their claim to any equity in the property.  This is also false.  Remember that the deed to the home determines legal ownership, and in most cases, married couples hold the deed jointly.  Even if you’re not on the deed, it’s likely the address on your driver’s license, which shows that you certainly have a right to come and go to get your belongings, pick up the kids, etc.  Sure, when you move out, your husband may not expect you to come back every day, but it’s not unusual for the parties to still use the marital home as an exchange point for parenting time or get together to split up the household belongings.  Equity in the marital home is also not exclusive to the party that lives there either.

Courts can order “exclusive use” of the marital home which is an order that provides for only one party to reside at the marital home and prohibits the other from coming to the home or property (some exceptions exist depending on what’s written in the order).  If this happens, the party remaining in the home often changes the locks, garage door opener and pass code to prevent the other from disobeying the order.  Most often these orders are granted when there is an issue with domestic violence, substance abuse, or the parties simply cannot get along while living together.  If one party has vacated the home already and has a new place to live, and the party remaining is afraid that he will come back and clean out all the sweet Budweiser collectables, she may ask the court for exclusive use to prevent that (assuming he doesn’t break in and steal the stuff anyways – just because something’s in writing doesn’t mean people abide by it).

The last myth examined in this article goes along with the second – when one person leaves the marital home, are his financial obligations to the marital expenses for that home done and over with?  Nope.  Just because you move out does not mean you are exempt from contributing to things like the mortgage, utilities, taxes and insurance, especially if your paycheck was the one primarily used to pay these expenses in the past.  If you voluntarily fail to pay these expenses upon your move (and you know your spouse doesn’t have the means to do so on his or her own), the court can order you to continue your regular financial contribution to these expenses, or least a partial contribution with your spouse kicking in for the rest of the cost.  Yep, it’s expensive to get divorced.

I hear plenty of complaints from divorcing clients, which as you’d imagine, can be very taxing at times.  However, the worst part of my job is not being able to tell people what they want to hear, but instead having to tell them what they need to hear.

Forgiving your ex

Great article on forgiveness in the family law setting!
http://www.huffingtonpost.com/eileen-barker/seven-reasons-to-forgive-_b_1877733.html

Courthouse Etiquette

Almost every day that I go to the courthouse I cringe at what I see and hear, and it appears that this gets worse in the summer time (the heat makes everyone crazy).  I’m all for having a good time no matter where I go, but there are some etiquette ground rules that should be followed when you’re going to the courthouse to conduct legal business.

The number one offense is by far wearing pajamas to court (this can also be expanded to other inappropriate clothing – booty shorts are not the best idea either).  Don’t get me wrong, I love a nice pair of comfy pants, but anything I wear in public is not going to have monkeys or Hello Kitty© all over it.  The other week I actually saw someone leaving the courthouse wearing what was definitely pjs, a bathrobe and slippers.  Presumably you’re not at the courthouse because you feel like hanging out there and instead you are probably paying a fine, attending a hearing or trying to obtain records of some sort.  Who is going to take you seriously when you are dressed like you just rolled out of bed?  You don’t have to get all glammed up, but you should have enough respect for yourself to put on your big boy pants and dress in something other than pajamas when you go to the courthouse.

Bringing children into the courtroom isn’t a fab idea either.  I realize that sometimes it’s difficult to obtain daycare and you may not have any control over when your hearing is scheduled.  However, children are unpredictable and the younger they are, the more this is true.  It can be very distracting and disruptive to bring the kiddos to the courtroom and it doesn’t make for a happy audience.  If the kids are older, and they understand what the court hearing is about, think about the emotional toll it takes on them to see their dad/mom/relative/family friend sentenced or yelled at by the judge.  Not a good idea all around.

Cell phones are not to be audible in court, and trust me when they do ring, everyone looks around for the guilty party.  It’s simple to turn it on vibrate or leave it in the car, so make sure you do.  Check with the specific courthouse for its rules also – some do not allow cell phones with cameras in the building unless you’re an attorney.  If you can silence your phone for a movie, you can certainly do it for a judge.

Throwing a fit on the sidewalk outside the courthouse is always entertaining but not necessarily in a good way.  It’s like watching a train wreck – you can’t look away.  Yes, we all have personal problems in our lives and it seems some more than others.  This doesn’t mean the general public wants to know why all of those people that testified against so and so are complete liars and why the judge was too hard on your friend for his no longer alleged crime.  Frankly it all looks ridiculous and not very civilized – wait until you get to your car or house to let it all out.

Following these simple suggestions won’t pay your fine or win your motion, but they will help you gain more respect with the judge, lawyers and other courthouse officials.  Besides, isn’t a little respect what you wanted in the first place?

 

 

 

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.