Who gets to plan your funeral? It depends.

When you die, there is a pecking order as far as who gets to decide the details surrounding your funeral.  You may be thinking, “what do I care?  I’ll be dead!” but plenty of Michigan funeral directors have to contend with angry family members and friends when disputes arise.  



A new law went into effect on March 31, 2017, Public Act 20 of 2017 (previously Senate Bill 39), which clarifies what it means to be a “surviving spouse.”  In Michigan, the first person up to bat to decide what to do with you after you’ve passed on to the great beyond, is a designated individual. What better control to have from the grave than to hand-pick the person, right?  The second in command is a “surviving spouse.”  From there you have children, grandkids, parents, grandparents and siblings.



Being in family law, I am well aware of the unconventional (some might say warped) relationships that people have with each other.  I’ve seen people who are legally married but haven’t seen or heard from their spouse in decades, even if they have children.  Do they file for divorce at any point?  Nope.  Sometimes it’s because they don’t have the money, aren’t sure how to go about it, or, just simply don’t care enough to do anything.  They give real meaning to the saying out of sight, out of mind.  The spouses may very well be in committed, long-term relationships with others and have additional children.



Another scenario is when the couple decides to file a separate maintenance action, which I often hear referred to as a “legal separation.”  Basically, everything is divided up (property, retirement benefits, money), and a determination is made as to custody, parenting time and support if children are involved, but the parties agree to stay legally married.  Both individuals have to agree to the separate maintenance judgment being entered, as opposed to a divorce, where it’s going to happen whether you both like it or not.  



Due to the fluid nature of our society, marriages don’t always look like the “traditional” thing anymore.  The practice before the new law was that when someone died, if there was a dispute as to who the surviving spouse was, the funeral director had the unfortunate duty of making that decision.  Public Act 20 of 2017 provides explicit definitions for the term surviving spouse, and if there is a disagreement, probate court gets the first chance at bat, not the funeral director.



The basic take-away from the new law is that if you are legally married to the decedent, you are the surviving spouse.  If you are divorced or your marriage was annulled, you are not the
surviving spouse. If you have a “decree of separation,” it does not terminate your married couple status, and is not considered a divorce.



As with most laws, there are a host of exceptions outlined as well.  One is if you are a bigamist and in a relationship with another person at the time of the decedent’s death, you are not a surviving spouse.  If you “…did any of the following for 1 year or more before the death of the deceased person:  [w]as willfully absent from the decedent spouse; [d]eserted the decedent spouse; [w]illfully neglected or refused to provide support for the decent spouse if required to do so by law,” you are not the surviving spouse. (See Section (e)(i)-(iii) of Public Act 20 of 2017). Other exemptions are also highlighted in the law.



So, in addition to engaging in important relationship talks like “do you want kids,” you should consider whether you really want this person determining if you are cremated and sprinkled across the water, or stuck in the ground for all eternity.  Who knew being dead involved so many decisions?

Immunity for cops in "undercover" positions may end

A lot of employers offer perks to employees, most commonly tuition reimbursement, coverage of car or cell phone bills, and the like.  However, if you are a Michigan police officer, your job comes with a very different type of “benefit” (if you can call it that):  immunity from the law if you sleep with a prostitute during an investigation.  Yes, you read that correctly.



Still on the books is a law that allows undercover police to actually engage in sex with prostitutes during the course of their investigation.  Whatever happens “under the covers,” while they are undercover, doesn’t really matter, as the law currently stands.  



Shockingly, Michigan is not the only state to ever have this law, but it IS the only state where the law is still valid.  Hawaii eliminated this exemption from its books in 2014.  It’s surprising to me that this law has not been voided at this point, especially with the visibility and crackdown by law enforcement on human trafficking.  However, it is very doubtful that police academy recruits are signing up to enjoy this exemption, or that any police agency would train officers or encourage use of the law (wouldn’t that make for an interesting first day on the job).



Representative Gary Glenn is working with University of Michigan law school professor Bridgette Carr, to end this exemption for police officers, through the introduction of House Bill No. 4355.  Senator Judy Emmons has sponsored it as Senate Bill No. 275.  The proposed law seeks to amend MCL 750.451a, to state that certain laws do not apply to police as they are carrying out official law enforcement duties, “unless the officer engages in sexual penetration as that term is defined in section 520A while in the course of his or her duties.” 



I think everyone can understand that there needs to be some leeway for undercover cops in various situations – if they don’t act the part, there is a much greater chance that they will be exposed as police officers, subsequently putting their lives in danger.  Because some unsavory individuals (who are not necessarily police officers but may pose as one) are aware of the immunity provision, they use it to threaten sex workers.  Michigan is not a stranger to sex trafficking, as you may recall during the plethora of arrests during the recent 2017 Detroit auto show.



Hopefully, the law will be amended quickly and unanimously to void this exemption – although I’m sure people would be interested to hear from anyone who actually opposes it.

A "Wonder"ful outcome at the Supreme Court

You may recall my past article about a young girl named Ehlena Fry, and her fight against Napoleon (Michigan) Community School’s refusal to allow her service dog, Wonder, to assist her while obtaining her education.  Her family sued the school, intermediate school district, and the former principal, for the perceived civil rights violation.  The lower courts sided with the school, and ruled that Ehlena had to exhaust administrative remedies before filing a legal action.



The US Supreme Court decided to change Ehlena’s luck, and on February 22, 2017, it unanimously ruled that Ehlena could file her legal action without exhausting the administrative remedies available first.  See 580 U.S. ____(2017); No. 15-497.  Of primary focus was determining if the substance of the complaint was based around the denial of a “FAPE” – which stands for “free appropriate public education,”or, if the main concern is “disability-based discrimination.”



In writing for the court, Justice Kagan provided a hypothetical, asking if “the plaintiff [could] have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school – say, a public theater or library; [a]nd second, could an adult at the school – say, an employee or visitor – have pressed essentially the same grievance.”  



As Ehlena’s lawsuit concerned discrimination based on disability, and did not focus on a FAPE denial, the lawsuit should have been allowed to proceed through the court system, without the exhaustion of the administrative process. The US Supreme Court vacated the Court of Appeals’ ruling, and remanded the case so that a determination could be made relative to whether or not the crux of Ehlena’s lawsuit is the “adequacy of special education.”
 

The distinction made by the US Supreme Court relative to the correct path to take with these types of cases will assist other families who face hurdles in educating their special needs child. One can hope that it also triggers all school systems to accommodate children, when appropriate, without the necessity of a lawsuit.

No get out of jail free card

A new published case has come out from the Michigan Court of Appeals – Rodene Cassidy v Robert Cassidy, Jr., having been decided January 10, 2017 (Michigan Court of Appeals Docket Nos. 328004; 328024 and 333319).  It details a salacious extramarital affair, which ends up costing the ex-husband big bucks.  Heck, even his mistress gets the blame for part of the debt.



The story begins with the marriage of Rodene and Robert in 1997 (we will call him Bob for fun).  Alas, the marriage was not meant to be as Bob started having an affair with Mary Hansen, with the two lovebirds conveniently working together.  Rodene found out about Bob’s extracurricular activities in 2012 and promptly filed for divorce.



Turns out Robert was a very generous paramour, having given Hansen anywhere from $300,000-500,000 throughout the years to buy and remodel her house.  Naturally, once this came to light, Rodene was none too pleased, given that the money was marital in nature.  Throughout the life of the case, and after 15 (yes, 15) long days at trial, Genesee County Judge Behm determined that Bob and Mary “engaged in concerted activity and conspired to defraud [Rodene] of her rightful share in the marital estate.”  As a result of this finding, Mary’s home was subject to a constructive trust, Bob was responsible for the entirety of the tax liability (shockingly, there was “significant under-reporting of income”), spousal support was awarded to Rodene, and, what really appeared to get to Bob – an award of just over $150,000 in attorney fees that he had to pay for his now ex-wife’s attorney.



At this point in my article, no one should be surprised to learn that Bob’s moral turpitude extended to his ability to follow court orders.  He failed to pay his portion of the property settlement, spousal support, and attorney fees.  It’s interesting to note that Mary was liable for part of the property settlement as well as she was added as a third party to the divorce case.  By time the hearing rolled around to address his contempt, Bob had paid the spousal support, but not the rest.



As you would imagine, the court was pretty irritated with Bob by this point.  Throughout the proceedings, he lied and misled the court and Rodene, which significantly drove up the costs of litigation.  The lower court had warned Bob on multiple occasions that he could be jailed for his failure to follow orders, and the judge had finally had it – she sentenced him to 10 days in jail for nonpayment of attorney fees.  If he paid the money owed before the 10 days in the pokey was up, he wouldn’t have to keep going.



Bob and Mary both appealed the rulings, but the focus of this article is Bob landing in jail over non-payment of his ex-wife’s attorney fees.  Bob never contested that he was in contempt of court, but rather that his due process rights were violated, saying “he had no prior notice,” and that the “trial court’s written order for contempt contained harsher terms [than] what the trial court had verbally indicated at the hearing.”



Luckily for Rodene, the lower court meticulously analyzed the case and explained exactly why it did what it did.  There were several times where Bob was warned of all of the possible sanctions for contempt, including jail, and he stated in court that he understood.  To put it simply, the Court of Appeals wasn’t buying what Bob was selling.  



The lower court’s ruling on all of the appealed issues was affirmed by the higher court. I can only imagine the look on Bob’s face when he reported to jail.

Imputation - what you need to know, Part 2

This article will continue looking at the Michigan Child Support Formula (MCSF) 2017 imputation factors found in §2.01(G), and examine the remaining factors considered by the court when assigning a parent “potential income“ for purposes of calculating child support.



Factor (g) – “[d]iligence exercised in seeking appropriate employment,” is a great factor for causing drama in a hearing.  I’ve never had a case where both parties agree that the unemployed or underemployed parent is trying his or her best to look for a job.  Usually, the word lazy is tossed around, along with allegations of mooching and playing the infamous “system.”  It’s loads of fun, but I digress.  This factor requires the court to inquire into exactly what the parent has been doing to obtain employment – has he or she applied to jobs online?  In person?  Attended job fairs?  Gone to staffing or contract agencies?  You get the idea – the more effort put forth, the better.



The next factor, (h), takes a look at what evidence there is “that the parent in question is able to earn the imputed income.”  Has this parent been able to earn a similar (or higher) amount of income in the past?  Does he or she have college degrees or post-graduate degrees that could command a certain level of income?  It’s important to be realistic with imputation, and ensure that the figure used is actually obtainable.



Personal history and one’s current life situation is examined in factor (i) – the court has to look at marital status, how the party is supporting him or herself, criminal records, driver’s license status and how he or she gets around town.  If a person doesn’t have a car or access to a reliable mode of transportation, it makes it pretty hard to obtain, and subsequently maintain, a job.  A significant criminal record, or certain convictions, can definitely reduce the overall size of the job market for a person as well. 



Parenting time, or how often the kiddos are in each parent’s house, is important to imputation also, as evidenced by factor (j).  The more time the children are present, the greater the financial strain on that parent’s wallet.  If the kids are hardly ever with the imputed parent, he or she is not going to be forking over as much cash to care for them.

The last factor, (k), considers if “there has been a significant reduction in income compared to the period that preceded the filing of the initial complaint or the motion for modification.”  What has changed from then to now?  Typically, people don’t file for support reviews unless something has changed, usually income or job status, despite how much I would like to think that people simply love dealing with the court.


The court has a lot to ponder when it comes to assigning a party potential, or imputed, income.  The factors are imperative in deciding what’s appropriate, and it violates case law and the MCSF Manual if each one is not addressed.  The more knowledge that both parties, and the court, have about the imputed party’s background and history, the better chance for a fair outcome for all involved.

Imputation - what you need to know, Part 1

People file for child support modifications all the time, hoping to get an increase to help with the adjustment of rising prices, for just about everything, or a decrease, due to a change in income or job loss.  Whatever the reason for the petition, it’s rare to have both parties happy with the outcome.  And to top it off, just because you ask for child support to be increased doesn’t mean that will be the result – if the support formula recommends a decrease, so be it.  The same situation plays out if one party asks for support to be lowered – if the formula recommends an increase, there you have it.  Hard feelings don’t even begin to explain the reaction when that happens. 

 

Child support frustrations heighten when a party is imputed, or assigned potential income.  The support formula manual allows for imputation when a parent is “voluntarily unemployed or underemployed, or has an unexercised ability to earn.”  See Michigan Child Support Formula (MCSF) 2017 §2.01(G).  Basically, it boils down to the court being able to “pretend” that a parent makes a specific amount of money for the purposes of child support.  The parent doesn’t actually earn the money attributed to him, or he may earn a portion of it, but not as much as the total figure that is used to calculate support.

 

According to the MCSF Manual, imputation should not exceed 40 hours a week or include overtime/shift premiums.  If you are already working 35+ hours a week, imputation should not be utilized.  Not surprisingly, in order for the court to assign a party potential income, it must analyze a set of 11 factors (what would a court document be without factors anyway?).

 

The imputation “dos” and “don’ts” are found in the MCSF Manual, Section 2.01(G)(2)(a)-(k).  I will examine these factors in this article and the next – let’s begin!

 

The first factor requires the court to examine the past employment experience and work history of a party, to include why the person is no longer employed.  We all know people who just can’t keep a job, and it’s always someone else’s fault.  Well, if your ex was fired for showing up to work intoxicated for the third time, that’s a legitimate fact to consider for imputation, as it should be.  This factor makes the most sense – what did you do in the past and why aren’t you doing it anymore.  How much experience a person has at a particular job is also telling as to what they could realistically earn in the future.

 

The second factor focuses on educational background, training and skills.  In theory, the higher the degree, the more money can be made, right?  While that may not always be true (think of Bill Gates), in general, people with a doctorate degree have the potential to earn more than those with a high school diploma.

 

Next, the court must look at a party’s physical or mental disabilities that impact the “ability to work, or to obtain or maintain gainful employment.” MCSF Manual §2.01(G)(2)(c).  This is the factor that causes the most arguments at my hearings – inevitably, if one party professes to be disabled, the other is absolutely certain that it’s all a lie, because the disabled party can do x, y and z on a regular basis.  It’s at times hard for me determine the veracity of this type of testimony, in particular from individuals who represent themselves, and don’t know what type of documents to bring, or witnesses to call for the hearing.  When a party is receiving a disability benefit, it can quiet the questioning by the other side.

 

A court must also look at whether or not a person is available to work, not to include times where looking for work was impossible.  You can’t expect someone to be out pounding the pavement and handing in resumes if that same person was in the pokey or hospitalized.

 

The last two factors for this article concern the “local geographical area” – what are the job opportunities, going wages, and number of hours available around town?  For some areas that have been hit hard with job loss, it may be difficult to find a full-time job in that particular region, and not everyone can just pack up and relocate to a more profitable community.  Salaries are higher in areas with a higher cost of living, so that needs to be factored in as well.

 

Stay tuned for the factors finale in the next article.

2017 Michigan Child Support Formula Changes

Well, the “Redcoats” aren’t coming, but the 2017 Michigan Child Support Formula is!  Starting January 1, 2017, the new formula and its manual will take effect, along with some welcome and I’m sure, unwelcome, changes.  I would like to highlight the two topic changes that I personally think will cause the most noise (cheers and jeers) among practitioners and clients alike – retirement and health care.  

 

The biggest “BOO!” I see coming revolves around what a party contributes to his or her retirement.  Under the current manual (2013 edition), the court can take into account voluntary retirement contributions made by a party as a deduction for purposes of the child support formula.  This amount can be up to 5.5% of one’s gross income.  The 2017 formula eliminates this option, and only provides for mandatory or nondiscretionary retirement contributions.

 

Realistically, we all want to save for retirement, and in my opinion, the voluntary retirement contribution deduction was a good thing.  The court should consider that people need to support themselves in the future.  The 2013 formula provided for a cap of 5.5%, so if an individual contributed a substantial amount over 5.5%, anything above the 5.5% would not be considered.  Alas, the powers that be did not agree with (or ask) me. 

 

Another retirement change is that employer contributions to a person’s pension or retirement have been removed from what is considered income.  To be honest, I don’t know too many people that utilized that provision previously, so I doubt it will be missed.

 

Health insurance changes will likely generate the largest cheers from the crowd, with modifications to allow for credit for a party’s spouse who covers the children on his or her health insurance.  This just makes sense.  The manual states that “[t]he court may permit a parent to provide required coverage through alternative means, such as a spouse’s or other household member’s coverage or coverage provided by a nonparent-custodian…provided that a parent is required to purchase coverage immediately should the alternative coverage stop.”  (MCSF Manual §3.05(B)(3)).  The manual goes on to say, “If the parent provides insurance for the children-in-common using a spouse’s or household member’s benefits, consider amounts paid by the parent’s household as the parent’s premiums paid to insure the children.”  (MCSF Manual §3.05(C)(1)(c)). 

 

One of the biggest complaints I hear is that it’s not fair to ignore the cost a spouse pays to cover their step-children on his or her insurance.  And, that’s a legitimate complaint – the money is likely coming out of a marital pot, and there’s no reason to pretend that health insurance costs are cheap.  Consideration of the cost to provide for that insurance has also changed – the 2013 formula provided that parents had to cover their children on their insurance as long as it did not exceed 5% of their gross income to do so.  The 2017 formula, section 3.05(A), has increased that reasonable cost to not exceeding 6% of the providing parent’s income.

 

Also, a new deduction was added – the cost that a parent pays to provide him or herself with mandatory health care coverage.

 

The last health care change that I think is important to note is the annual ordinary medical cost.  This cost represents the dollar amount the payee has to pay each year prior to the payer’s requirement to contribute a percentage to unreimbursed health care costs for the minor children.  This also assumes that the payer is contributing an ordinary medical portion in his or her total child support cost each month.  The current numbers are:  $357 for 1 child; $715 for 2 children; $1,072 for 3 children; $1,430 for 4 children, and $1,787 for 5 or more children; with all of those amounts being per year.

 

For orders entered after the 2017 effective date, the new amounts are:  $403 for 1 child; $807 for 2 children; $1,210 for 3 children; $1,614 for 4 children, and $2,017 for 5 or more children, all per year.  While the numbers have jumped a decent amount, so has health care.  The average cost most parents spend out of pocket each year for their children’s health care is often much more than the amounts provided by the formula.

 

I will likely supplement this article down the road, once I’ve had the chance to fully utilize the new formula with actual cases.  I’m not a huge fan of change, so my Spidey senses are tingling with a whole new formula manual after 4 years.  Here’s to hoping it’s received and put into practice well!