Covering the kids on your health insurance

With all of the press surrounding Obamacare and health insurance plan compliance, it led me to thinking about divorced or separated couples covering their kiddos on their health insurance (because the law is what an attorney day dreams about).  Often times the court only requires one parent to provide the insurance, for a variety of reasons.  One parent’s plan may be too expensive, or the benefits may not be as good as the other’s coverage.  The individual incomes of each parent, whether or not they fall below a certain percentage of the federal poverty level, and if the child is covered by Medicaid are also factors for the court to consider.

Both parents may have a legal obligation to provide coverage for their children, if available at reasonable cost.  The word “reasonable” is quite open to interpretation in all areas of the law (and life in general), but luckily for all of us, the Michigan Child Support Formula Manual spells that out.  A “reasonable cost” for health care coverage is no more than 5% of that parent’s gross income.

Talking about health care insurance routinely raises one’s blood pressure when you contemplate what you pay for coverage and what the insurance company provides you with in benefits.  It seems like the companies deny claims right and left despite the enormous premiums you pay each year.  I regularly feel like I need a drink after getting off the phone with my insurance company.  Many parents cover the children on their health insurance regardless of whether or not it falls within the 5% dollar amount, because they make too much money to qualify for a government assisted plan but don’t want their children to go without coverage.

If you cover your children on your health care insurance and either receive or pay child support, be certain to include that coverage amount for child support calculation purposes.  The parent paying for the health care coverage will receive a credit (read:  deduction) in the formula if he pays support, or a premium adjustment payment (read: additional support monies) if he receives support.  Additionally, if the cost of your health care skyrockets at each yearly open enrollment, you may wish to have child support reviewed based on this new, higher cost that you are contributing.

For those of you who might be worried that you are paying a premium adjustment to your ex and reimbursing her for her personal health care coverage, don’t fret.  The child support formula calculates the cost for the children only based on the number of individuals on the policy.

One last bit of medical advice:  the next time you have to call up your insurance company to find out why your son’s asthma medication isn’t covered anymore, pour that drink before you pick up the phone.

If you are interested in learning more, or downloading a free copy of the Michigan Child Support Formula Manual and its supplement, you can find them both on the Michigan Courts One Court of Justice website: http://courts.mi.gov/Administration/SCAO/OfficesPrograms/FOC/Pages/Child-Support-Formula.aspx.

Destination Divorces

Destination weddings are still popular with many couples, but how many “destination divorces” do you hear about?  I’d venture to say not too many.

If you happen to get divorced in a foreign country, does the United States recognizes that divorce as valid?  The answer is:  it depends.  The United States Supreme Court has long asserted that if the individual had the right to a fair trial, without prejudice or fraud, had the right to be present, and the “system of jurisprudence [was] likely to secure an impartial administration of justice between the citizens of its own country and those of other countries,” the judgment would be given comity.  Hilton v Guyot, 159 US 113 (1895).

The Michigan Court of Appeals echoed this position in Dart v Dart, opining that if the parties were afforded due process, present in court and had a hearing on the merits of the case, the judgment would be upheld.  Dart v Dart, 224 Mich App 146, 155 (1997).

In the 2009 unpublished case of Tarikonda v Pinjari, Michigan Court of Appeals Docket #287403, the Michigan Court of Appeals was faced with the question of whether or not to uphold an Indian divorce.  The parties were married in India and had one child born in the United States.  They resided in Michigan for about two years.  When the parties separated, the wife stayed in Michigan and the husband moved to New Jersey. 

Shortly after separating, the husband secured a divorce by traveling to India.  Pursuant to Indian law, a husband can actually divorce his wife by pronouncing that he divorces her three times.  This is called the “triple talaq.”  Pinjari did just that in his written triple talaq, and received a divorce certificate.  Just think, if this kind of quick and easy divorce were allowed in the United States, I’d be out of a job.

Tarikonda filed for divorce in Michigan a month after her husband received the Indian divorce.  The lower court granted the husband’s request to dismiss the Michigan divorce complaint on the basis that the couple was already divorced in India.  Tarikonda was told to register the Indian divorce in Michigan and she could pursue custody and support in a separate complaint.

Tarikonda appealed on the position that the Indian divorce should not have been given comity as it “is violative of due process and contrary to public policy.”

The Court of Appeals agreed with Tarikonda, noting that she was denied due process as she had no notice of the triple talaq and was not given the right to be present or have an attorney.  Further, this type of divorce denies women equal protection as they cannot pronounce a triple talaq on their husbands and receive a divorce.  The lack of an equitable property division was also contrary to Michigan law.

The lesson to be learned from this case:  don’t get a destination divorce in a country where you can simply say you’re divorced three times and it becomes true.  That only works if you’re wearing ruby slippers and click your heels.

Keeping Secrets Pays

Confidentiality is a common theme throughout the legal world, and for good reason.  The most recognized example of this is the fact that conversations between attorney and client are privileged and held confidential, which you would think promotes an open and honest relationship between the two, but that is not always the case (read:  clients lie, despite the fact that you can’t tell anyone what they say).

In family law, many settlement agreements are kept out of the public file, especially in high profile cases, so that the privacy of the divorcing couple and their family is held intact.  In a world outside of family law – GASP!  There is such a thing? – when resolutions are reached behind closed doors, those involved are often held to confidentiality agreements so that no one knows what really happened or how much was awarded.  Lawsuits are often publically humiliating for corporations and individuals; naturally, the PR people want to minimize any potential damage to the extent possible.  Many people assume that the higher the monetary award, the more truth there was to the allegation that brought the lawsuit in the first place.

This type of confidential agreement was brought to light in Florida for the Snay family.  Patrick Snay sued his former employer, Gulliver Preparatory School, claiming age discrimination when he was not brought back on board to head the school.  The school and Snay eventually reached an agreement – meant to be confidential – where Snay would receive $80,000 as a settlement, in addition to $10,000 in wages and $60,000 for his attorneys.  The agreement did allow exceptions to the confidentiality so that Snay and his wife could speak to his attorneys and other “professional advisors.”

Unfortunately, Snay decided to let his daughter in on the secret, claiming that she was entitled to know “something” due to the fact that she was involved in the family ordeal and had needed therapy.  This probably wouldn’t have been a big deal, except that Snay’s daughter posted a little something on her Face Book page, which just so happened to have 1,200 individuals following it (and I thought I was doing good with 420 friends):  “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”

Gulliver Preparatory Schools was less than impressed and refused to fork over the $80,000, based on a breach of the confidentiality agreement.  Various court hearings and appeals were held, but Gulliver prevailed in the end.

I wonder if Snay’s darling daughter still got to go on that European vacation.

Sperm Donation Leads to Lawsuit

It’s said that no good deed goes unpunished, and that appears to be the case for Kansas resident William Marotta, who simply wanted to help a couple fulfill their dream of having a child.

Craig’s List can be used to solicit, sell and advertise a variety of wanted items, and apparently sperm is one of them (good to know).  This is how couple Jennifer Schreiner and Angela Bauer got in touch with Marotta and arranged for him to provide his donation in 2009, which he did free of charge.  Schreiner and Bauer worked off of the “DIY” method and did not utilize any type of medical assistance in order to conceive their daughter, who was later born as a result of Marotta’s donation. 

Everyone involved wanted to be smart about the situation, and the parties signed a contract stating that Marotta did not have any parental rights to the child and was not financially responsible for her, which only seems fair, right?  Wrong.  Because the couple later separated and Kansas law doesn’t recognize same-sex marriages, only the biological mother (Schreiner) could be held legally responsible for the child. When Schreiner later needed government assistance, the State of Kansas sought out the father in order to have him help support the child.

Government agencies routinely come after the non-custodial parent for child support when the other parent receives assistance, and rightfully so.  If there is a parent out there who could provide for the child, and/or reimburse the state for monies spent on the child, the state will make every attempt to locate him or her.

One of the most unusual aspects in this case is that had the former couple went through a doctor for the insemination, Marotta would not be liable under Kansas law.  Apparently Kansas is taking the position that Marotta and Schreiner could have conceived the child the old fashioned way, whereas if they had used a doctor, it would have solidified that he was a sperm donor and nothing more. 

Marotta said he had no idea that the couple wasn’t using a doctor, but I find that a bit hard to believe – he was trolling on Craig’s List for a place to donate his sperm and he naturally assumed that those same individuals would be using medical assistance when he directly provided the product requested?  That’s a bit sketchy, at best.

Marotta is appealing the decision, as one would expect.  He probably imagined good karma coming his way for his donation, and instead he was hit with a lawsuit.
 
 
 

Ex Parte Orders

Personally, I’m not a fan of surprises unless it involves presents, preferably sparkly and 14 carat.  Professionally, it would be an ideal world to have ample notice before every hearing, for every client to tell the truth (and nothing but the truth), and to never get a panicked phone call that an ex parte order was just served on my client. 

What is an ex parte order you ask?  Well, if you have the right circumstances, a court can sign an order awarding you the relief that you seek in your motion, without giving notice to the opposing party.  The order itself is not enforceable until the opposing party is served with it, because obviously you can’t abide by something you know nothing about.

The court has the authority to issue an ex parte order pursuant to Michigan Court Rule (MCR) 3.207, if it “is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.”

Here’s a good example of a common reason for an ex parte order in a divorce case:  John has filed for divorce.  This makes his wife, Jane, very mad, so she drains the bank accounts and starts cashing in savings bonds to give herself as much money as possible before the inevitable split of assets in the divorce.  Naturally, John is not happy about this turn of events, so he asks the court to issue an ex parte restraining order, prohibiting Jane from taking money out of their accounts, such as bank accounts, 401ks, whole life insurance policies, etc., and to prevent her from spending or hiding the money she has already plundered.  If John had to provide Jane with notice that he filed a motion, and had to wait for the court hearing, there’s a good chance Jane might use that week or so of time to do exactly what John is trying to prevent her from doing.  Then, after taking all of their riches, Jane hops on a plane with her destination being any country that doesn’t have extradition to the United States). 

Ex parte orders for custody, parenting time and support are also entered by the court, especially if there is an unfortunate situation such as domestic violence between the parties, abuse of a child, or issues with drugs or alcohol.  In these cases, if the moving party had to wait to give notice of the hearing, there is the concern that the abuse would continue or worsen, neglect of the child would occur if parenting time was not supervised, or that a parent may all together disappear with the minor child.

Specific language advising the opposing party of their right to object to the order, and what happens if they fail to object, must be included in the ex parte order itself.  Be aware that even if you object to an ex parte order that you are served with, you still have to follow the terms of that order until you have the hearing on your objection.  Even then, it’s not a guarantee that the judge will change the terms of the order.  The objection time period is very short – only 14 days – so you have to act fast if you are unhappy with the order (which is a very good assumption).

Ex parte orders are not something judges take lightly, and neither should you.  It is imperative that you provide ample evidence that what you are seeking is immediately necessary and that your order contain the mandatory language set forth in the court rule.   

My last piece of advice:  when the opposing party is served with the ex parte order, I would suggest skipping the usual surprise party balloons – somehow I don’t think they will make the surprise a happy one.

Kids and Divorce

The holidays are a time where most everyone focuses on their kids – getting their pictures taken with Santa, making Christmas cookies and homemade ornaments, and shopping for presents (my favorite part obviously because it involves shopping).  If you ask most parents what was the best day of their lives, they answer the day their child or children were born.  Now that I am a parent, I can absolutely agree with this statement because my daughter is literally the best thing that has ever happened to me.

 When great parents are in the midst of a divorce or custody dispute, they can somehow be transformed into controlling and vengeful individuals who use their children as pawns against the other.  They tell their children too much about “adult business,” and blame the other parent to the extent that the child begins to view him or her negatively (i.e. “I’m sorry Tommy, but Christmas will be slim this year since your father never pays his child support and can’t seem to keep a job for more than 2 weeks.”)  People will fight for everything under the sun and often use their children as an excuse for their behavior, saying that they “need” this or that for little Tommy or Susie, when in reality it is nothing more than an old set of dishes that were packed away in the basement.

I routinely tell clients that it’s not what you want, it’s not what your spouse wants, but it’s what is best for the kids.  If I had a dime for every time that someone came to my office and insisted on “50/50 custody” I would be enjoying a cocktail in Hawaii on Christmas instead of dressing my child in 12 layers of clothing to drive to my aunt’s house 30 miles away. 

 When a couple is together, they set up their households in a certain fashion and divide responsibilities between themselves in a particular way.  Sometimes this means that mom does the majority of the child care while dad brings home the bacon.  As more households now have two incomes, parents often split the child rearing responsibilities more equally, but when the relationship falls apart and a divorce is filed, one parent may not have the resources or appropriate residence to continue doing what had traditionally been done in the past.  What worked while the parties were married often does not work when they divorce.

I completely understand people’s hesitancy towards change, because I am not a huge fan of change myself (it’s practically catastrophic to me every time Target rearranges its store layout).  That being said, change is inevitable and a lot of good can come from it.  I would rather see a child grow up in two separate, yet loving households, than continue to live in a dysfunctional but “nuclear” family.  The end of a relationship, whether the parties were married or not, can be completely devastating to both the parents and the children no matter what their age, but you can and should minimize this for the kids. 

If the children ask what is going on, do your best to try to answer questions with your spouse together and reassure them that mom and dad are going to continue to work together to co-parent them.  Set up the same rules and routines in both households and keep the lines of communication open so that the child doesn’t start to take advantage of one parent’s weakness or guilt about the marriage not working out.  Buying tons of gifts for the kids will not make up for the fact that their parents are splitting up, and keeping things as normal as possible will help them get through the divorce.  If you’re really enjoying your new found freedom, remember that Tommy and Susie don’t need to see every date you take to the various holiday parties.

Be willing to try temporary arrangements for custody and parenting time so that the children can grow accustomed to living in two homes and not seeing mom and dad every day.  Don’t demand joint physical custody just to control your child support obligation – in a lot of cases, couples can deviate from the recommended guidelines and agree on reasonable support.  Blaming the other parent for taking all of your money and “blowing it on who knows what” is not something you should tell your kids, but I can guarantee that children hear this all too often.  Keep your financial problems neutral as to who caused them, and leave them out of all conversations if at all possible.

Complain to your friends and family when the kids aren’t around and try and let your kids be kids as much as you can.   Everyone hopes to relate to his or her children, and to be considered a friend in their eyes.  The best way you can do that is to be a parent first when they are young and need direction, providing them with as much love and security as you can while being respectful and polite to the other parent, as hard as it may be.  You certainly don’t ever want to have to explain to your child why your name is on Santa’s naughty list.

Family Matters

We have all wished that we could magically make our annoying brothers and sisters disappear at one point or another, especially during the “I’m not touching you…” game.  With the proper set of circumstances, this can happen (at least in the legal sense), as the Michigan Court of Appeals opined that terminating parental rights legally terminates the sibling relationship as
well.

In the case Wilson v King, 298 Mich App 378 (2012), Marquita Wilson had her rights to her three children terminated in February 2008, and they were adopted by Diane King.  Less than a year later, in September 2008, Wilson had another child, Mac, and for a period of time, King’s adopted children visited with their half-sibling Mac.  However, this eventually came to an end.  Wilson wanted the visitation to continue, and filed a lawsuit requesting that a sibling visitation schedule be put in place.  The trial court dismissed her action because Michigan law does not provide for such a case to be filed.

Wilson appealed, and interestingly enough, the Court of Appeals affirmed the lower court’s ruling, but for a different reason.  While the trial court dismissed the case as having no basis in law, the Court of Appeals relied on the “effect of adoption” statute, MCL 710.60.  Specifically, the statute states: “The person or persons adopting the adoptee then become the parent or parents of the adoptee under the law as though the adopted person had been born to the adopting parents and are liable for all the duties and entitled to all the rights of parents.”

In the eyes of the law, the “natural” or biological family relationships are terminated and the adoptive family takes the place of the natural one.  Because the three adopted children are now viewed as the biological children of King, Wilson’s child is not any relation to them.  Based on this thinking, the Court of Appeals stated that the “adoption of the three older children legally severed their sibling relationship with Mac.  Consequently, even if a cause of action to obtain sibling visitation exists, [Wilson’s] complaint is deficient because the children seeking
visitation are not Mac’s siblings.”

The Court of Appeals was quick to note that it was not making any determination as to the validity of a sibling visitation claim; however, I highly doubt that this is the last we will hear of these types of cases.  How is it fair and equitable for the court to punish the children for the
actions of their parents?  When considering custody and parenting time, judges will often keep the children on the same schedule as their half-siblings or step-siblings so that the bond between the siblings is fostered.  We also look at the child’s preference if he or she is considered to be of sufficient age.

Because there does not yet exist a proper cause of action for sibling visitation, the best interest factors are not applicable, but I have to wonder if this logic causes more harm than good.  The court is denying visitation between children who know, without a doubt, that they really are
related, regardless of what the law says.

While brothers and sisters can be obnoxious at times, most of us agree that we are better with them than without.  Our siblings are a part of our history, our family makeup, and a link to our past.  It doesn’t seem right for a court to determine, based on the actions of the parents, whether or not they are a part of our future.