Injunction issued against Michigan’s antiquated abortion law

With the unprecedented leak of the US Supreme Court’s draft opinion that would overturn Roe v Wade, states are scrambling to address the legality of abortion, both for and against. Michigan is no exception, and has its own law from 1931, which criminalizes abortion, regardless of whether the pregnancy stemmed from rape or incest. Abortions were banned unless they were necessary to save the mother’s life, as was advertising or selling abortion medications (MCL 750.14 & 750.15). When Roe went into effect in 1973, Michigan’s law became unconstitutional and largely forgotten about.

If Dobbs v Jackson Women’s Health Organization overturns Roe, Michigan’s almost 100 year old law could be given new life.  The national protection and right to an abortion would vanish, and each state would be able to make its own decision. Planned Parenthood has sued Michigan’s attorney general, arguing that the 1931 law is in violation of Michigan’s constitution.  This week Judge Gleicher, Michigan Court of Claims judge, issued a preliminary injunction against the 1931 law, as she believes that the Planned Parenthood lawsuit will be successful.

Had the injunction not went into effect and if Roe was overturned, Michigan’s law would eliminate the right to an abortion unless the mother’s life was in jeopardy. Governor Gretchen Whitmer has filed a lawsuit claiming that the due process clause of Michigan’s constitution protects the right to an abortion. As the law is regulating a woman’s right to bodily autonomy, and not a man’s, it is also argued to be in violation of the equal protection clause. Michigan’s attorney general has already stated that she would not be enforcing the 1931 law; however, prosecutors in various counties have indicated their intent to uphold the law should it no longer be void.

Many view the injunction as a temporary victory and call for the Michigan constitution to be amended to specifically include the right to an abortion, leaving no doubt about the legality of the medical procedure. With the potential for Roe to be overturned, states would be wise to continue their efforts to update their laws.

Keeping Your Private Information Private

Despite being effective April 1, 2022, the new court rule requirement concerning privacy is not an April Fool’s joke.  Michigan Court Rule (MCR) 1.09(D)(9) provides that certain information which identifies a person cannot be included in any public court document, or any attachments, except as stated in the rule.  “Personal identifying information” is protected and includes:  birth dates, social security numbers or national identification numbers, driver’s license numbers or other state ID, passport numbers and financial account numbers.

At the start of most family law cases, parties must file a form called a Verified Statement, which requests much of the above personal information.  However, because that form is not placed in the public court file and is kept in the Friend of the Court’s confidential file, parties can provide this information when completing it.

Other forms created by the State Court Administrator’s Office (SCAO) may ask for personal identifying information, and the parties may have that information removed if it is not required by law. It will remain on the form if required or kept confidential. In my opinion, court orders regarding children are the number one place where parties and attorneys provide protected information, as they often state the children’s dates of birth. It will likely take a while to get out of this habit.

So, who is responsible for ensuring that your personal deets don’t end up splashed across your court record?  You and your attorney.  In section 10(a) of the court rule, it states: “The responsibility for excluding or redacting personal identifying information listed in subrule (9) from all documents filed with or offered to the court rests solely with the parties and their attorneys. The clerk of the court is not required to review, redact, or screen documents at time of filing for personal identifying information, protected or otherwise, whether filed electronically or on paper. For a document filed with or offered to the court, except as otherwise provided in these rules, the clerk of the court is not required to redact protected personal identifying information from that document, regardless of whether filed before or after April 1, 2022, before providing a requested copy of the document (whether requested in person or via the internet) or before providing direct access to the document via a publicly accessible computer at the courthouse.”

The clerk can redact the protected information at its own discretion, and if the court creates a document which contains any of the information after April 1, 2022, it must be redacted before it is made public. Websites that are publicly accessible cannot contain any of the protected information either.

The take home message from this article:  proceed with caution when filing court documents. If you want more information on this topic, you can visit the Michigan Courts website at courts.michigan.gov.

Lesser Known Child Support Formula Provisions

With tax season upon us, money remains at the forefront of many people’s minds and it seemed like an opportune time to touch on some of the lesser known provisions in the child support formula. Below are some provisions from the 2021 Michigan Child Support Formula Manual that clients are most surprised by.

When the court is calculating income, it can include “perks” that the parent receives through his or her job, as long as the parent did not pay for it, it reduces personal expenses, is received regularly and/or is significantly valuable.  This can include a company car that the employee can use personally, mileage reimbursement, housing monies and food.  However, it does not include tuition reimbursement, HSA contributions or uniforms.

If your long-lost relative left you an inheritance, the property or principal from the inheritance (or one and done present) is not usually considered income, but the interest and potential interest earned on it can be.

Similarly, if you have a really nice family member or friend who likes to bestow gifts upon you in the form of cold, hard cash, food, shelter or a car, the value of those items may be considered income.  If great aunt Martha lets you live in her semi-finished walk-out basement rent free, that could come into play when determining child support. To be considered, these items also should reduce your personal expenses or “[replace] or [supplement] employment income.” However, gifts from a current spouse do not apply (so keep buying your wife jewelry guys).

The court can include the cost that a parent’s spouse pays for the children in the case to be covered on the spouse’s health insurance, with the manual allowing “amounts paid by the parent’s household as the parent’s premiums paid to insure the children.” If the court orders that the insurance be covered in this way, the parent is “required to purchase coverage immediately should the alternative coverage stop” (for example, if the new spouse lost his or her job and therefore the insurance coverage, or if they later divorced and the children could no longer be covered). If the spouse provides insurance for the parent in the case, that parent does not receive the self-coverage credit.

Money that is received from either parent or the child that is Supplemental Security Income (SSI) is not includable in the formula as income, nor can it be used to offset the child support amount like Social Security Disability (SSD) income can. SSI, along with TANF funds, food stamps and the Federal earned income credit, are considered forms of “means tested income” and are not used in the formula. Any monies received by a parent for a child that is not the child of the case is not considered (for example, child support for an additional child by another parent, SSD benefits for children not of the case).

The formula manual and its supplement are large and complicated, and things are often overlooked, so hopefully this eliminates some of the confusion. Surprises are only fun when they sparkle.

For reference, the formula manual provisions detailed in this article are the following sections: 2.01D(1) & (2); 2.01L; 2.04A; 2.05A, B & C; 2.07F; 3.05B(3) & 3.05C(c).

Don't quit your job to avoid child support

Thanks in part to the pandemic and employment changes, child support is a hot topic in the courts right now.  When I came back to work after the 2020 shutdown, I was overwhelmed by the number of new pleadings requesting a change in child support, and it really hasn’t slowed down.  Businesses are short staffed and hiring signs are everywhere – I even got an application in my kids’ Happy Meals the other day (due to child labor laws, they won’t be able to apply, and will continue to live rent free).

Along with employment changes comes the misconception from parties that their income will be put at zero for child support calculations if they aren’t working.  While this can be true in some cases, many people have the ability to work and the Michigan Child Support Formula (MCSF) Manual takes this into account. Imputation is used in many cases where someone is unemployed, but not prevented from working. 

The court can use unemployment benefits as a person’s source of income for purposes of calculating child support. However, if those have run out, and the individual is still unemployed, we can assign them potential income – income that the courts believe he or she could be earning.  The MCSF sets forth factors to be considered when imputing an individual, and  imputing a second job when a person already works 35+ hours a week is inappropriate, as well as imputing overtime. Imputation can also be used when a person is “underemployed,” or voluntarily reduces his or her income.  If a person quits his or her job to avoid paying child support, the court can (and likely will) assign them potential income.

Among other factors, the formula considers the imputed person’s education, disabilities, access to transportation and criminal history. Even if there are some concerns with the factors, it doesn’t completely rule out assigning potential income – it will just be adjusted and take into account any issues the person has. If income is imputed, potential daycare costs (for the child in the case) may be included in the calculations.

Since many employers are now paying over minimum wage, with options for same day pay and bonuses, it’s becoming more difficult for individuals to argue they can’t find employment.  While imputation isn’t perfect, it is helpful in ensuring child support is properly charging, and motivating individuals to gain employment or keep their current job.

New Year, New Laws

With the new year upon us, bills that were delayed in becoming laws are beginning to take effect.  One that received overwhelming support – the repeal of the “tampon tax” – is effective February 3, 2022.  Feminine hygiene products, or period products, are expensive, and manufacturers charge a pretty penny knowing that they are a necessary purchase. Thanks to the new law, these items will no longer be subject to Michigan’s 6% sales tax, helping reduce the already tight budgets of many.

Switching gears, Michigan International Speedway, a long-established mecca to NASCAR fans, will be allowed to sell liquor if it holds at least two days of motorsports events each year.  This is down significantly from the previous requirement of seven days and is in response to the COVID-19 pandemic which prompted cancellations of all sorts of events. If there is one activity that goes along with NASCAR, it’s drinking, and fans will be happy to know they can still have that beer even with reduced races. And as I mentioned in my October article, a second chance law for drunk driving offenders takes effect later this month.

There is now a required criminal background check for individuals who are working with senior citizens. The law has retroactive effect to October 1, 2020, and applies to new and existing employees, subcontractor and subcontractor employees, as well as certain volunteers who have more personal contact with senior citizens. The checks must be updated every three years, as some employees may be less than forthcoming with new legal troubles.

My personal favorite is the law that lets people renew their vehicle registration for two years instead of one.  As time consuming as it is to go to the Secretary of State office, or use its website, I am more than happy to delay this activity to every other year. This law doesn’t go into effect until this October, which leaves most having to do another two years in a row unless they are late fall/early winter birthdays. Even so, I’ll take it.

Hopefully these new laws and others will bring a welcome change for 2022.

What Money Can Buy

Over Christmas break, I fell into the deep hole of clicking on every hyperlink and wasting copious amounts of time reading online (as one does). It’s probably no shock that I am drawn to legal topics, especially those that are off the wall.  During one such spiral, I learned that oil baron Henry Flagler used his wealth and power to have the Florida legislature enact a law allowing him to divorce on the grounds that his spouse was incurably insane.  

Flagler was thrice married, first to Mary #1, then Ida Alice and finally Mary Lily (aka Mary #2).  Mary #1 died at age 47 of poor health, which was an easy path to marriage #2.  However, in 1895 Ida Alice was institutionalized for mental illness at Pleasantville Sanitarium (a fantastic name for an insane asylum if you ask me).  

Back in the day, one could not divorce a spouse for simply being insane; accordingly, Henry used his moolah to make it happen.  According to a 1901 news article in the “San Francisco Call,” Flagler went to Miami with Judge Jones and Judge Raney, with Raney sponsoring a new law which allowed insanity to be grounds for divorce.  

Coincidentally, notice of Flagler’s intent to divorce Ida appeared in papers and was tacked to the courthouse shortly after the trio’s arrival in Florida.  Four years after the passing of the law, it was repealed, with Flagler being the only individual to be divorced under the law.

Rumors swirled that Henry and Mary #2 were involved pre-divorce, and their marriage a mere 10 days post-divorce seems to bolster that theory.  Flagler built her the opulent estate known as Whitehall, which is now the Flagler Museum.

Karma, however, had the last laugh.  Flagler fell down the steps at Whitehall and died shortly thereafter.

I want a Hippopotamus for Christmas

With the holidays approaching, Christmas music is being played just about everywhere you go.  Gayla Peevey sang “I want a Hippopotamus for Christmas” back in 1953, and may be happy to learn the US District Court in Cincinnati, Ohio, afforded drug lord Pablo Escobar’s hippos the legal recognition as interested persons or people.

The hippos were illegally imported by Escobar in the 1980s and lived on his ranch in Columbia, with a host of other animals. When he died a decade later, the four hippos were left on his property due to the difficulty in moving them.  Facing no threats, they reproduced at an alarming rate and now number close to 100.  They also apparently have no fear of people, and take frequent trips into town (presumably for shopping).

Because of their growth, they pose a threat to the area’s biodiversity, as well as humans.  The government began sterilizing some of the animals, and others are proponents of simply killing them. If you’re wondering how the US became involved in a Columbian lawsuit, the Animal Legal Defense Fund (ALDF) petitioned the US District Court to award “interested persons” status to the hippos so American experts could testify in the court case.  A federal law allows “anyone who is an ‘interested person’ in a foreign lawsuit to ask a federal court to permit them to take depositions in the US in support of their case.”

Previous attempts to award animals personhood in the US have been denied, but Judge Karen Litkovitz has changed that in granting the ALDF/hippos’ request.  Many of the arguments in support of the recognition make sense – animals already have various protections under the law and this allows for enforcement of these rights.  In addition, businesses have standing in court and they are not biologically “people.”

I don’t know what impact, if any, the US ruling will have in a Columbian court.  However, this case sets precedent for the future rights of other animals; in the past, similar cases for chimpanzees and elephants were denied.  Maybe the judge has a soft spot for hippos - like the song says, “only a hippopotamus will do.”