Author: Marie E. Matyjaszek
For some people, waiting six months or even two months for their judgment of divorce to enter is hard, especially when they want to indulge their romantic side. Finding someone new to listen to your concerns (or more likely bad-mouth your soon-to-be ex) is such a wonderful feeling. But, the questions remain – when can you start looking for that special guy who will indulge your shoe and purse fetish? Does the court care(about the guy, not the shoes. Of course the court thinks your shoes are fabulous)? And what about the kids?
Many people assume that if someone picks up a new love interest right after the divorce has been filed, that she’s been cheating all along – and they could be dead-on. In other cases, it’s amazing what taking off that wedding band does to some people – the number of digits they get in a bar increases and friends immediately start playing matchmaker. After all, half of finding Mr. Right is timing.
As I’ve mentioned before, Michigan is a no-fault divorce state, but the court can look at fault for the purpose of spousal support and property division. The Michigan Court of Appeals has addressed dating during a divorce in a number of cases throughout the years. In Knowles v. Knowles, 185 Mich. App. 497 (1990), the Court reversed a trial judge’s 70% wife/30% husband split of the parties’ property because the husband had allegedly had an affair. However, his tryst began after the marriage had broken down, and “it was improper for the trial court to hold divorcing parties to a standard of morality or behavior appropriate for marital partners.”
Knowles was differentiated in a 2000 ruling, with the Court of Appeals stating that if a wife had begun “her relationship with the other man before [her husband] filed for divorce and before [she] vacated the marital home, the evidence was properly admissible on the issue of fault.” See Repasky v. Repasky, Docket No. 212859.
The Court has reiterated its past decisions that “ ‘[t]he focus must be on the conduct of the parties leading up to the separation rather than on who left whom.’ ” See Roberts v. Roberts, Docket No. 238610. When parties separate or file for divorce, it’s clear that their intent is to live individual lives, but not necessarily alone. This doesn’t mean it’s a good idea – regardless of how little your former man supported your Louis Vuitton habit, no one escapes a divorce completely unscathed, even if you can shop without harassment afterwards.
Take some time to make sure you’re ready to move on, and if you have kids, think of them first and choose wisely. Don’t try to make your new friend a substitute dad – this never helps any relationship. Maybe some guys like the “just add water” instant family, but most men that I know stay away from drama about the same distance that I am from cleaning the litter box.
So, the take-away message is this: You can date and live it up as a single lady once you’re separated or have filed for divorce, but unlike those amazing 4-inch stilettos, there are no refunds on a rebound boyfriend. Besides, you still look good attempting to walk in those shoes all by yourself.
Courtesy of Jackson County Legal News, 6/14/10, Vol. 45, No. 36
Sunday, April 3, 2011
Friend or Frenemy of the Court: Opting in or out for support
Author: Marie E. Matyjaszek
The Friend of the Court (FOC) is a mystifying institution that people seem to either love or hate, without any middle ground. When you’re awarded child support or spousal support, you have to choose to either opt-in or opt-out, unless you are a recipient of governmental assistance, in which case the choice has been made for you – you’re in. It pretty much feels like the clock ticking down on Final Jeopardy – people are sweating under the bright lights, deciding how much they want to wager and if they’re going to risk it all, and wondering why Alex looks so smug.
Finally, time is up, and your answer boiled down to the fact that you didn’t trust your ex to pay you directly, so you’ve opted in to the FOC system. What does this mean exactly? Well, the Michigan State Disbursement Unit (read: giant support clearing house in Lansing) will attach an income withholding order to your ex’s paycheck, take out the monthly amount of support he’s supposed to pay, re-route it to the FOC of the county your case is in, and deposit it into an account of your choosing. He will also pay nominal service fees to have the FOC manage the account, which total $42 per year. Depending on how your ex is paid, the monthly support amount may be broken down into two or more separate deposits into your account each month. This has frustrated some of my clients when they are relying on that money to pay daycare or other expenses on a certain day.
If your ex falls behind in payments due to a loss of income, failure to report his employment change, or some other reason, the FOC is supposed to timely bring enforcement action when the arrearage is more than a month late. However, the ginormous volume of cases that the FOC manages makes it easy for your case to slip through the cracks, so you should always let the FOC know you’re not getting your money by filing a written complaint promptly. If your case is within the FOC system, it can also set hearings on issues like support, health care contributions, parenting time, custody, or other matters that relate to your case. The bonus is that if you don’t like the FOC ruling, you can generally appeal these to the actual judge assigned to your case and prepare yourself for round two.
The FOC offers a bevy of services that are simply too numerous to mention, and like any other governmental institution, it’s understaffed and underfunded. If you don’t want to use the FOC, you and the opposing party must both elect to opt-out of the system. Some people just don’t want everyone knowing their business – that’s usually why they’re getting divorced anyways. The biggest consequence of opting out is that you are no longer entitled to any FOC service or enforcement. If you have a parenting time complaint, or medical reimbursement issue, you have to go directly to the court which probably means you’re going to have to use your tax refund on an attorney and not that new hot tub you wanted (and you’ll get really aggravated when you see your attorney picking out his new hot tub). And, there’s no guarantee that your ex’s support is going to magically show up in your bank account when it’s supposed to if you opt to have him pay you directly.
Some judgments or orders provide that if the payer is behind a certain amount of months in support the parties will automatically opt back in to the FOC, but you have to file paperwork to do so; you can’t just show up, toss your papers to the person at the window and say “I’m in,” although I don’t doubt that this has actually occurred before.
I have to work with the FOC on almost a daily basis, and unless it’s blatantly obvious that the payer isn’t going to send those checks, I try not to influence my client’s decision to opt-in or opt-out. Everyone’s experience with the FOC is different, especially if you’re an attorney versus a party to a case. Let’s face it, I ultimately get to sit on the fence – I’m just trying to prevent any splinters.
Courtesy of Jackson County Legal News, 5/17/10, Vol. 45, No. 32
The Friend of the Court (FOC) is a mystifying institution that people seem to either love or hate, without any middle ground. When you’re awarded child support or spousal support, you have to choose to either opt-in or opt-out, unless you are a recipient of governmental assistance, in which case the choice has been made for you – you’re in. It pretty much feels like the clock ticking down on Final Jeopardy – people are sweating under the bright lights, deciding how much they want to wager and if they’re going to risk it all, and wondering why Alex looks so smug.
Finally, time is up, and your answer boiled down to the fact that you didn’t trust your ex to pay you directly, so you’ve opted in to the FOC system. What does this mean exactly? Well, the Michigan State Disbursement Unit (read: giant support clearing house in Lansing) will attach an income withholding order to your ex’s paycheck, take out the monthly amount of support he’s supposed to pay, re-route it to the FOC of the county your case is in, and deposit it into an account of your choosing. He will also pay nominal service fees to have the FOC manage the account, which total $42 per year. Depending on how your ex is paid, the monthly support amount may be broken down into two or more separate deposits into your account each month. This has frustrated some of my clients when they are relying on that money to pay daycare or other expenses on a certain day.
If your ex falls behind in payments due to a loss of income, failure to report his employment change, or some other reason, the FOC is supposed to timely bring enforcement action when the arrearage is more than a month late. However, the ginormous volume of cases that the FOC manages makes it easy for your case to slip through the cracks, so you should always let the FOC know you’re not getting your money by filing a written complaint promptly. If your case is within the FOC system, it can also set hearings on issues like support, health care contributions, parenting time, custody, or other matters that relate to your case. The bonus is that if you don’t like the FOC ruling, you can generally appeal these to the actual judge assigned to your case and prepare yourself for round two.
The FOC offers a bevy of services that are simply too numerous to mention, and like any other governmental institution, it’s understaffed and underfunded. If you don’t want to use the FOC, you and the opposing party must both elect to opt-out of the system. Some people just don’t want everyone knowing their business – that’s usually why they’re getting divorced anyways. The biggest consequence of opting out is that you are no longer entitled to any FOC service or enforcement. If you have a parenting time complaint, or medical reimbursement issue, you have to go directly to the court which probably means you’re going to have to use your tax refund on an attorney and not that new hot tub you wanted (and you’ll get really aggravated when you see your attorney picking out his new hot tub). And, there’s no guarantee that your ex’s support is going to magically show up in your bank account when it’s supposed to if you opt to have him pay you directly.
Some judgments or orders provide that if the payer is behind a certain amount of months in support the parties will automatically opt back in to the FOC, but you have to file paperwork to do so; you can’t just show up, toss your papers to the person at the window and say “I’m in,” although I don’t doubt that this has actually occurred before.
I have to work with the FOC on almost a daily basis, and unless it’s blatantly obvious that the payer isn’t going to send those checks, I try not to influence my client’s decision to opt-in or opt-out. Everyone’s experience with the FOC is different, especially if you’re an attorney versus a party to a case. Let’s face it, I ultimately get to sit on the fence – I’m just trying to prevent any splinters.
Courtesy of Jackson County Legal News, 5/17/10, Vol. 45, No. 32
Client control: Get a hold of yourself!
Author: Marie E. Matyjaszek
You need them to pay your bills, fund your trips and otherwise allow you to “live the dream.” No, not your parents. Clients. Without them, you wouldn’t have a career, wouldn’t be able to practice law, wouldn’t be the guy with a fancy law degree and mountains of debt to show for it. So, you have to keep them coming in like a steady stream, but you don’t necessarily have to agree with or like everything they do. At times, it seems that your advice goes in one ear and out the other, with the client doing what he or she wants anyways.
The worst part of my job is having to tell a client what they need to hear, not what they want to hear. They are already in a horrible situation, dividing up their belongings, arguing over the kids, and hurting because their marriage didn’t work out. With all of this going on, the last thing they need is me telling them they did something wrong.
When a client repeatedly ignores my advice, or better yet, a court order, it goes downhill quickly. The other attorney starts calling me constantly, updating me on the problems, threatening to file this motion and that motion, asking for attorney fees, trying to force a psychiatric evaluation of my client, blah blah blah. They are the same threats I use when the shoe is on the other foot; I’m familiar with the consequences of people’s actions.
Just when you think your client has “seen the light,” undoubtedly due to one of your amazing lawyerly speeches, you start to get the same phone calls the next day. No lawyer wants the reputation of not having client control – it makes you look incompetent and usually results in the other side running to court before trying to resolve an issue amicably.
I can only protect the client from so much fallout; after a certain point, there runs a good chance that my representation of him will end. There really isn’t much of an option when the client doesn’t care about what I say, and we all have other clients that will listen and deserve attention being paid to their cases.
As soon as a client starts to behave inappropriately, be as clear and stern with him as possible – he may be too ashamed to admit fault, but most clients won’t do it again. If the behavior doesn’t stop, it’s always helpful to remind them of the monetary consequences – the more they misbehave, the more motions are filed, attorney fees are won, and your time spent trying to dig them out of that grave is adding up fast. You may have to rein the client in a few times – lawsuits don’t bring out the best in people and rational thinking comes a bit slower during the proceedings. Putting your advice in writing, in particular the warnings, is a good idea in case he decides you caused his loss in court.
Of course, you can’t discount the possibility that your client simply won’t listen to you – if that’s the case, it’s time to get out of the matter. If the trust has broken down, the lawyer-client relationship is no longer symbiotic and the rest disintegrates quickly. Chances are that at this point, the client thinks that he’s doing the right thing and won’t listen to you no matter what you say. After all, since lawyers never admit that they’re wrong, why would we expect our clients to behave any different?
Courtesy of Jackson County Legal News, 4/19/10, Vol. 45, No. 28
You need them to pay your bills, fund your trips and otherwise allow you to “live the dream.” No, not your parents. Clients. Without them, you wouldn’t have a career, wouldn’t be able to practice law, wouldn’t be the guy with a fancy law degree and mountains of debt to show for it. So, you have to keep them coming in like a steady stream, but you don’t necessarily have to agree with or like everything they do. At times, it seems that your advice goes in one ear and out the other, with the client doing what he or she wants anyways.
The worst part of my job is having to tell a client what they need to hear, not what they want to hear. They are already in a horrible situation, dividing up their belongings, arguing over the kids, and hurting because their marriage didn’t work out. With all of this going on, the last thing they need is me telling them they did something wrong.
When a client repeatedly ignores my advice, or better yet, a court order, it goes downhill quickly. The other attorney starts calling me constantly, updating me on the problems, threatening to file this motion and that motion, asking for attorney fees, trying to force a psychiatric evaluation of my client, blah blah blah. They are the same threats I use when the shoe is on the other foot; I’m familiar with the consequences of people’s actions.
Just when you think your client has “seen the light,” undoubtedly due to one of your amazing lawyerly speeches, you start to get the same phone calls the next day. No lawyer wants the reputation of not having client control – it makes you look incompetent and usually results in the other side running to court before trying to resolve an issue amicably.
I can only protect the client from so much fallout; after a certain point, there runs a good chance that my representation of him will end. There really isn’t much of an option when the client doesn’t care about what I say, and we all have other clients that will listen and deserve attention being paid to their cases.
As soon as a client starts to behave inappropriately, be as clear and stern with him as possible – he may be too ashamed to admit fault, but most clients won’t do it again. If the behavior doesn’t stop, it’s always helpful to remind them of the monetary consequences – the more they misbehave, the more motions are filed, attorney fees are won, and your time spent trying to dig them out of that grave is adding up fast. You may have to rein the client in a few times – lawsuits don’t bring out the best in people and rational thinking comes a bit slower during the proceedings. Putting your advice in writing, in particular the warnings, is a good idea in case he decides you caused his loss in court.
Of course, you can’t discount the possibility that your client simply won’t listen to you – if that’s the case, it’s time to get out of the matter. If the trust has broken down, the lawyer-client relationship is no longer symbiotic and the rest disintegrates quickly. Chances are that at this point, the client thinks that he’s doing the right thing and won’t listen to you no matter what you say. After all, since lawyers never admit that they’re wrong, why would we expect our clients to behave any different?
Courtesy of Jackson County Legal News, 4/19/10, Vol. 45, No. 28
Pets in divorce: Is 'Snowball' man's best friend or woman's best friend?
Author: Marie E. Matyjaszek
Most days I prefer the company of my pets over humans – let’s face it, they don’t talk back and love you unconditionally. It’s not surprising that pet products and care are fast growing industries, especially since people are waiting longer to get married and have children – their pets are becoming increasingly important and considered a part of their family.
As a divorce attorney, I am seeing more parties wanting the ownership of their pets specified in the divorce judgment, and several clients have considered the “custody” of their pets to be a deal-breaker. It is not uncommon for my client to make it clear in the initial meeting that he can’t have Snowball or she doesn’t deserve to have his Buddy. As a huge animal lover and pet owner myself, I know what it means to have that ball of fur greet you after a lousy day at work or a fight with your husband over his extension of time for your diamond upgrade.
The current law on awarding pets in a divorce is simple – they are considered chattel, divisible like all other types of property. If the dog was yours before the marriage, then chances are that he is premarital and yours to keep. Receiving the pet as a gift also helps your case to retain him and all of the chewed furniture too. However, there is a push to treat pets as a separate category called “living property.” While in school at Michigan State University College of Law, I took several classes taught by Professor David Favre, who continues to educate other would-be lawyers at MSU. Professor Favre defined the term “living property” in one of his papers as “physical, movable living objects – not human – that have an inherent self-interest in their continued well-being and existence.” Using this train of thought would encourage the Courts to look at the pet as more than just property, a living being whose best interests should be considered before awarding him to one party or the other.
Who walked the dog the most and took her to the vet when she was limping? Who cleaned that nasty cat litterbox without complaint? Does the animal seem to favor one “parent” over the other? I think it’s important for the Courts to view animals beyond property because the treatment that they receive is critical to their well-being and health. You can’t randomly award a dog to one party just like you could settle the dispute over a television and expect it to have the same outcome – set it up in the new home and leave it for the owner to enjoy. The Courts should consider the emotional attachment of the pet to that particular owner, and the attachment of the owner to the pet.
Because there is no set case law defining the “best interests” of a pet like there is a child, I would advise amicable divorcing parties to try to come to an agreement on the animal on their own since the Court doesn’t have specific guidelines to follow. I’ve seen divorces where the custody of the pets is effectively broken down into legal and physical custody, where both parties have to agree on operations, inform the other of vet appointments, and decide where the dog resides most of the time. Parenting time is being set forth in Judgments, specifying who gets to see the pet on what day and for what length of time. Monetary support for the animal, including regular needs such as food, vet care and toys, are being shared between the divorced couple at an increasing rate.
If you’ve always treated your pet as a member of your family, the Courts should too. Parties will surely fight over who gets the beloved dog or cat, and in some divorces, Buddy may end up being awarded to one side or the other if they can’t come to an agreement. If that’s the case, I’d advise the winner to avoid stepping on any flaming brown bag that appears on her doorstep – just pour water over it.
Courtesy of Jackson County Legal News, 3/29/10, Vol. 45, No. 27
Most days I prefer the company of my pets over humans – let’s face it, they don’t talk back and love you unconditionally. It’s not surprising that pet products and care are fast growing industries, especially since people are waiting longer to get married and have children – their pets are becoming increasingly important and considered a part of their family.
As a divorce attorney, I am seeing more parties wanting the ownership of their pets specified in the divorce judgment, and several clients have considered the “custody” of their pets to be a deal-breaker. It is not uncommon for my client to make it clear in the initial meeting that he can’t have Snowball or she doesn’t deserve to have his Buddy. As a huge animal lover and pet owner myself, I know what it means to have that ball of fur greet you after a lousy day at work or a fight with your husband over his extension of time for your diamond upgrade.
The current law on awarding pets in a divorce is simple – they are considered chattel, divisible like all other types of property. If the dog was yours before the marriage, then chances are that he is premarital and yours to keep. Receiving the pet as a gift also helps your case to retain him and all of the chewed furniture too. However, there is a push to treat pets as a separate category called “living property.” While in school at Michigan State University College of Law, I took several classes taught by Professor David Favre, who continues to educate other would-be lawyers at MSU. Professor Favre defined the term “living property” in one of his papers as “physical, movable living objects – not human – that have an inherent self-interest in their continued well-being and existence.” Using this train of thought would encourage the Courts to look at the pet as more than just property, a living being whose best interests should be considered before awarding him to one party or the other.
Who walked the dog the most and took her to the vet when she was limping? Who cleaned that nasty cat litterbox without complaint? Does the animal seem to favor one “parent” over the other? I think it’s important for the Courts to view animals beyond property because the treatment that they receive is critical to their well-being and health. You can’t randomly award a dog to one party just like you could settle the dispute over a television and expect it to have the same outcome – set it up in the new home and leave it for the owner to enjoy. The Courts should consider the emotional attachment of the pet to that particular owner, and the attachment of the owner to the pet.
Because there is no set case law defining the “best interests” of a pet like there is a child, I would advise amicable divorcing parties to try to come to an agreement on the animal on their own since the Court doesn’t have specific guidelines to follow. I’ve seen divorces where the custody of the pets is effectively broken down into legal and physical custody, where both parties have to agree on operations, inform the other of vet appointments, and decide where the dog resides most of the time. Parenting time is being set forth in Judgments, specifying who gets to see the pet on what day and for what length of time. Monetary support for the animal, including regular needs such as food, vet care and toys, are being shared between the divorced couple at an increasing rate.
If you’ve always treated your pet as a member of your family, the Courts should too. Parties will surely fight over who gets the beloved dog or cat, and in some divorces, Buddy may end up being awarded to one side or the other if they can’t come to an agreement. If that’s the case, I’d advise the winner to avoid stepping on any flaming brown bag that appears on her doorstep – just pour water over it.
Courtesy of Jackson County Legal News, 3/29/10, Vol. 45, No. 27
'It wasn't me': The role of fault in divorce
Author: Marie E. Matyjaszek
Michigan is a no-fault divorce state. That means that you can wake up tomorrow, decide you don’t like the color of your husband’s eyes and file for divorce. While you don’t need a “fault” in order to start the divorce proceedings, some faults do come into play during the course of the divorce. So what faults can you punish your spouse for in the divorce? Do affairs and questionable behavior really matter in the Court’s eyes?
Every case is different, which is something of a mantra that my clients hear repeatedly during their proceedings. But I still can’t stress it enough – your case is going to be considerably different from that of your co-worker and fellow cubicle dweller Lucy (who has already established in her mind that no one’s divorce could be worse than hers). Even if this is your first or sixth divorce (yes, I’m serious), the circumstances you find yourself in usually vary greatly from your past experiences or those of your friends.
Fault of a party can be looked at by the Court in determining spousal support and property division; in fact, one of the spousal support factors the Court considers is the past relations and conduct of the parties. However, before you start airing your husband’s dirty laundry in a public courtroom or pleadings (let’s not forget anyone off the street can go into the courthouse, hand over her car keys and peruse your entire public divorce file), you need to think about whether or not you created any of those stains. Trust me, the mud-slinging rules in divorce are a free-for-all and often end up like a WWE match – but there are no attractive ring girls in bikinis parading around to lighten the mood. Considering most of my colleagues are male, this is a major disappointment.
There are some cases where I can honestly say “it’s mostly his fault” or “it’s mostly her fault” but those instances are rare. More often both parties led to the breakdown of the marriage but not to the extent that either one will be severely punished in the final judgment.
In my opinion, affairs and questionable behavior are becoming less important in determining the outcome of a divorce. First, I think it’s becoming less surprising (and some might argue more acceptable) to have those clandestine trysts. It doesn’t make it right, but when people tell me that they know or suspect that their spouse has cheated, I barely blink. The more common affairs are, the better chance that they are working their way into the pseudo-norm.
Second, affairs are not always that easy to prove. That “nagging suspicion” gets me nowhere in court and only winds up costing the client serious cash when they allow their suspicions to impede negotiations and settlement talks. If you can’t verify it, you could wind up looking like you’re on a major smear-campaign as you try to prove that he was Client #10. There is a huge difference between what you know and what you can prove in court. Pictures, emails, cards or receipts for bling that you’re not wearing are great, but they don’t surface very often. Also, keep in mind that courts are not inclined to consider any relationships that began after separation or filing of the divorce. Whatever you suspect or even know will unfortunately never matter as much as you want it to.
With today’s economy, it’s harder to secure large property settlement awards or spousal support because your man lost his job or isn’t getting those expected commission checks. Fault seems to matter less when there isn’t anything worth awarding – half of zero still equals zero.
However, for all of you who are calling your favorite motel as you read this, you shouldn’t breathe a huge sigh of relief, because it’s just my opinion. And we all know what those are like.
First published 3/8/10, Jackson County Legal News, Vol. 45, No. 24
Michigan is a no-fault divorce state. That means that you can wake up tomorrow, decide you don’t like the color of your husband’s eyes and file for divorce. While you don’t need a “fault” in order to start the divorce proceedings, some faults do come into play during the course of the divorce. So what faults can you punish your spouse for in the divorce? Do affairs and questionable behavior really matter in the Court’s eyes?
Every case is different, which is something of a mantra that my clients hear repeatedly during their proceedings. But I still can’t stress it enough – your case is going to be considerably different from that of your co-worker and fellow cubicle dweller Lucy (who has already established in her mind that no one’s divorce could be worse than hers). Even if this is your first or sixth divorce (yes, I’m serious), the circumstances you find yourself in usually vary greatly from your past experiences or those of your friends.
Fault of a party can be looked at by the Court in determining spousal support and property division; in fact, one of the spousal support factors the Court considers is the past relations and conduct of the parties. However, before you start airing your husband’s dirty laundry in a public courtroom or pleadings (let’s not forget anyone off the street can go into the courthouse, hand over her car keys and peruse your entire public divorce file), you need to think about whether or not you created any of those stains. Trust me, the mud-slinging rules in divorce are a free-for-all and often end up like a WWE match – but there are no attractive ring girls in bikinis parading around to lighten the mood. Considering most of my colleagues are male, this is a major disappointment.
There are some cases where I can honestly say “it’s mostly his fault” or “it’s mostly her fault” but those instances are rare. More often both parties led to the breakdown of the marriage but not to the extent that either one will be severely punished in the final judgment.
In my opinion, affairs and questionable behavior are becoming less important in determining the outcome of a divorce. First, I think it’s becoming less surprising (and some might argue more acceptable) to have those clandestine trysts. It doesn’t make it right, but when people tell me that they know or suspect that their spouse has cheated, I barely blink. The more common affairs are, the better chance that they are working their way into the pseudo-norm.
Second, affairs are not always that easy to prove. That “nagging suspicion” gets me nowhere in court and only winds up costing the client serious cash when they allow their suspicions to impede negotiations and settlement talks. If you can’t verify it, you could wind up looking like you’re on a major smear-campaign as you try to prove that he was Client #10. There is a huge difference between what you know and what you can prove in court. Pictures, emails, cards or receipts for bling that you’re not wearing are great, but they don’t surface very often. Also, keep in mind that courts are not inclined to consider any relationships that began after separation or filing of the divorce. Whatever you suspect or even know will unfortunately never matter as much as you want it to.
With today’s economy, it’s harder to secure large property settlement awards or spousal support because your man lost his job or isn’t getting those expected commission checks. Fault seems to matter less when there isn’t anything worth awarding – half of zero still equals zero.
However, for all of you who are calling your favorite motel as you read this, you shouldn’t breathe a huge sigh of relief, because it’s just my opinion. And we all know what those are like.
First published 3/8/10, Jackson County Legal News, Vol. 45, No. 24
Is your divorce a sand trap for your future earnings?
Author: Marie E. Matyjaszek
You can’t believe how nasty your wife is getting in this divorce - she wants everything and then some! Can a mere dozen indiscretions while you traveled around the world as a pro golfer really be that big of a deal? You’re anticipating some heavy cash coming in from some of your sponsors and even though you won’t receive it until a few years after the divorce, she still wants a cut. Well, thanks to a recent decision by the Michigan Court of Appeals, your future bonuses are not considered part of the marital estate subject to division, so you can keep those to yourself. I wouldn’t recommend texting this news to your girlfriends though.
In the just-decided case Skelly v. Skelly, (December 29, 2009), the Michigan Court of Appeals reversed a Wayne County Circuit Court decision that awarded part of the husband’s future bonuses from his employer to his wife, to the tune of 40%. Tom was a successful employee of Ford Motor Company (who I’m sure dreamt of being pro golfer on the side) and his better half Patty was a homemaker. Because no one wants to work for an automobile company these days, Ford offered Tom a “retention bonus” which totaled $108,000 if he’d stay with the company through May of 2009. He got part of the payment in 2007 and was going to get the other installments in 2008 and 2009; however, if he decided to take his career strictly to the fairway and leave Ford before May of 2009, Tom had to pay the entire bonus package back.
The trial court ruled that these future bonuses were marital property, and the last bonus payment, while correctly considered separate property, was subject to invasion and awarded her 40% of all of it. If you’ve earned some money during your wedded bliss, it’s almost always going to be considered marital property, and you get to watch helplessly as she spends it at Victoria’s Secret. You’ll wonder why the children’s toys keep coming to your house in those cute pink bags, but there’s not much you can do about it. However, “speculative bonuses do not fit into either the category of marital assets, or separate assets, because they do not yet exist.” Tom had not yet earned these bonuses, and the time period for when they could potentially be earned was after the two were divorced, so they were not a marital asset.
The Court of Appeals ruled that the bonuses were not a separate asset either, as Tom “did not take his retention bonus away from the marriage because he had yet to earn it.” Separate assets can be subject to invasion in a divorce, if one party needs that extra support, or if the spouse had helped accumulate those separate assets. Luckily for Tom, this was not the case.
It’s good to know that the Court of Appeals is willing to let your ex stay in the past and not take part of your future, including your earnings. Patty’s ball may have landed in the rough, but the Court of Appeals granted Tom his mulligan.
First published 2/8/10, Jackson County Legal News, Vol. 45, No. 20
You can’t believe how nasty your wife is getting in this divorce - she wants everything and then some! Can a mere dozen indiscretions while you traveled around the world as a pro golfer really be that big of a deal? You’re anticipating some heavy cash coming in from some of your sponsors and even though you won’t receive it until a few years after the divorce, she still wants a cut. Well, thanks to a recent decision by the Michigan Court of Appeals, your future bonuses are not considered part of the marital estate subject to division, so you can keep those to yourself. I wouldn’t recommend texting this news to your girlfriends though.
In the just-decided case Skelly v. Skelly, (December 29, 2009), the Michigan Court of Appeals reversed a Wayne County Circuit Court decision that awarded part of the husband’s future bonuses from his employer to his wife, to the tune of 40%. Tom was a successful employee of Ford Motor Company (who I’m sure dreamt of being pro golfer on the side) and his better half Patty was a homemaker. Because no one wants to work for an automobile company these days, Ford offered Tom a “retention bonus” which totaled $108,000 if he’d stay with the company through May of 2009. He got part of the payment in 2007 and was going to get the other installments in 2008 and 2009; however, if he decided to take his career strictly to the fairway and leave Ford before May of 2009, Tom had to pay the entire bonus package back.
The trial court ruled that these future bonuses were marital property, and the last bonus payment, while correctly considered separate property, was subject to invasion and awarded her 40% of all of it. If you’ve earned some money during your wedded bliss, it’s almost always going to be considered marital property, and you get to watch helplessly as she spends it at Victoria’s Secret. You’ll wonder why the children’s toys keep coming to your house in those cute pink bags, but there’s not much you can do about it. However, “speculative bonuses do not fit into either the category of marital assets, or separate assets, because they do not yet exist.” Tom had not yet earned these bonuses, and the time period for when they could potentially be earned was after the two were divorced, so they were not a marital asset.
The Court of Appeals ruled that the bonuses were not a separate asset either, as Tom “did not take his retention bonus away from the marriage because he had yet to earn it.” Separate assets can be subject to invasion in a divorce, if one party needs that extra support, or if the spouse had helped accumulate those separate assets. Luckily for Tom, this was not the case.
It’s good to know that the Court of Appeals is willing to let your ex stay in the past and not take part of your future, including your earnings. Patty’s ball may have landed in the rough, but the Court of Appeals granted Tom his mulligan.
First published 2/8/10, Jackson County Legal News, Vol. 45, No. 20
Inheritance, gifts and divorce: OH MY! 'Don't comingle if you're gonna be single'
Author: Marie E. Matyjaszek
Whenever the phone rings in the middle of the night, you know it’s not good news. As expected, your great-aunt Sally has died, and true to her word, she left you $100,000. After getting over the initial shock that you actually were her favorite niece, you roll over and think about waking up your husband to tell him the news. Then you remember you’ve been considering divorce, so maybe you should keep this to yourself. Decisions, decisions.
Even if you’re married, inherited property can remain the separate property of the spouse that received it. The length of your wedded bliss may influence how a court rules on the issue – and no, you can’t subtract the years that you just stuck it out for the kids. The shorter the marriage, the easier it is to keep the inheritance your own; the longer you stay together, the better chance your spouse has to say the monies were marital in nature.
A bevy of Michigan cases detail what outcomes may occur and a lot also depends on how you treat the inheritance. If you keep it in your name only, in a separate bank account and stay away from that pesky co-mingling, chances are good that you’ve helped it retain its separate status. But if you use it for marital purposes, or start to plan for your joint retirement together, the court may consider those actions as intent to share it with your hubby. And we all know that $100,000 buys a lot of tools and a really nice fishing boat.
So, if you want to keep those funds strictly earmarked for shoes, purses, and things that go bling, keep it to yourself as best as you can. The courts can look at whether or not you paid joint taxes on it, or if you “let pass other opportunities to accumulate savings because [you] were relying on the gifted or inherited asset to be there in the future.” (Michigan Family Law Bench Book, 09 Supplement, §8.26, p. 8-21.)
The same type of logic applies to items that are gifted to one spouse during the marriage as well. If the donor is still alive, you can ask her to explain her intent behind the gift. If she’s no longer lucid or has passed on, the courts can look at the way the gift was presented – whose names were on the check, and if there was any note or explanation as to the purpose for her generosity.
Sure, it’s not the most positive outlook to consider the state of your marriage when receiving an inheritance or gift, but the truth is you can’t take it with you when you die, so you might as well try to take it with you in the divorce.
First published 1/25/10, Jackson County Legal News, Vol. 45, No. 18
Whenever the phone rings in the middle of the night, you know it’s not good news. As expected, your great-aunt Sally has died, and true to her word, she left you $100,000. After getting over the initial shock that you actually were her favorite niece, you roll over and think about waking up your husband to tell him the news. Then you remember you’ve been considering divorce, so maybe you should keep this to yourself. Decisions, decisions.
Even if you’re married, inherited property can remain the separate property of the spouse that received it. The length of your wedded bliss may influence how a court rules on the issue – and no, you can’t subtract the years that you just stuck it out for the kids. The shorter the marriage, the easier it is to keep the inheritance your own; the longer you stay together, the better chance your spouse has to say the monies were marital in nature.
A bevy of Michigan cases detail what outcomes may occur and a lot also depends on how you treat the inheritance. If you keep it in your name only, in a separate bank account and stay away from that pesky co-mingling, chances are good that you’ve helped it retain its separate status. But if you use it for marital purposes, or start to plan for your joint retirement together, the court may consider those actions as intent to share it with your hubby. And we all know that $100,000 buys a lot of tools and a really nice fishing boat.
So, if you want to keep those funds strictly earmarked for shoes, purses, and things that go bling, keep it to yourself as best as you can. The courts can look at whether or not you paid joint taxes on it, or if you “let pass other opportunities to accumulate savings because [you] were relying on the gifted or inherited asset to be there in the future.” (Michigan Family Law Bench Book, 09 Supplement, §8.26, p. 8-21.)
The same type of logic applies to items that are gifted to one spouse during the marriage as well. If the donor is still alive, you can ask her to explain her intent behind the gift. If she’s no longer lucid or has passed on, the courts can look at the way the gift was presented – whose names were on the check, and if there was any note or explanation as to the purpose for her generosity.
Sure, it’s not the most positive outlook to consider the state of your marriage when receiving an inheritance or gift, but the truth is you can’t take it with you when you die, so you might as well try to take it with you in the divorce.
First published 1/25/10, Jackson County Legal News, Vol. 45, No. 18
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