The Company You Keep

People say you if lay down with dogs you’re going to wake up with fleas.  While offensive to my dogs, who have always been flea free (knock on wood), this theory holds true with respect to who you expose your children to.

Just because you divorce or separate from your significant other, no one expects you to become a hermit or monk, never to go out or date again.  However, the courts do expect you to make smart choices about who you choose to fraternize with if you have children. 

When clients tell me they started dating again, especially during the divorce, I immediately ask if he has a criminal record and if he has met the kids.  People make mistakes and sometimes the past really is left behind, so it’s probably not going to cause any concern if you start planning picnics with your new boyfriend and the kids, even if he had a joyriding conviction at age 18.

Then there’s the person who chooses to date a man twice convicted of domestic violence or let a friend who’s facing a drug charge move in to help pay the rent.  If you don’t have kids, chances are good no one but your parents and friends are going to judge you.  However, when your ex comes over for parenting time, he will notice that “I just went to a Jimmy Buffet concert” smell wafting from your new roommate’s space and start asking questions.  Pretty soon these questions lead to an internet criminal record search and a trip to an attorney’s office.

Even if you don’t expose your children to your new questionable friend, your poor decisions impact your kids – if you can’t make good choices for yourself, there’s concern you won’t make good choices for your kids either.  This can be even more concerning if your past contains some of the same mistakes and activities (i.e. drug use, alcohol abuse).

Depending on the seriousness of the criminal charges or convictions, your ex may very well be justified in filing a motion with the court for a no contact order between your children and Mr. or Ms. Not So Perfect, or it could go as far as a change in parenting time and custody.  I have seen courts order supervised parenting time, suspend parenting time, or set the matter for a more in depth hearing to determine the outcome, all because of the company one parent chose to keep.

For most people, exposing their children to a violent person or someone with a lengthy criminal record would not be an option under any circumstance.  However, emotions can definitely cloud one’s judgment, and the need for rental income can be very tempting when you go from a double to single income household.  If you do choose to make new friends with some unsavory characters, remember that the courts have to look out for the best interest of your children, especially if it appears you are not.

Medical Reimbursement - Watch the clock

The worst part about getting your mail every day is the prospect that it contains bills – and if you or your children have health concerns, it can make walking to the mailbox more like walking the plank. 

Most divorce judgments and child support orders contain a provision where the parents have to divide the cost of unreimbursed medical expenses for the children.  Typically, the parent who receives child support has to pay a certain amount of money out of pocket, called an “ordinary medical expense,” before the other parent’s percentage towards the unreimbursed costs commences.  At present, the 2013 amounts are:  $357 per year for one child, $715 for two, $1,072 for three, $1,430 for four, and $1,787 for five or more children.

If an ordinary medical expense is included in your court order, the parent paying support is actually contributing to this annual amount each month in his child support based on a percentage determined by the child support formula.  Even if you don’t reach the out of pocket amounts, you don’t have to return the money to the parent paying support.

Let’s say you pay the ordinary medical expense before the year runs out, and you now want your ex to pony up his percentage towards unreimbursed medical costs for your child.  How do you go about doing this the right way?

Naturally, there’s a form for this, called “Client Demand for Medical Payment” (SCAO Form FOC 13a) and instructions as well – you can conveniently find these on the Jackson County Friend of the Court’s webpage.  Fill out the forms appropriately, and be sure to attach all supporting documentation so there’s no question that your ex owes that amount or that you have paid your portion.

One of the biggest problems people face is waiting too long to ask for the reimbursement – there are of course time limits on basically everything in the law.  The magic number is 28 days – you have to request the payment from your ex within 28 days of the actual expense or within 28 days of your insurance company finalizing its claim.  Once you’ve done so, your ex has 28 days to respond to your request for payment.  If he doesn’t, you can ask the Friend of the Court for enforcement (assuming you utilize the FOC’s services of course).

In order for the FOC to assist you, there are time frames yet again, conveniently listed at the bottom of the form for your reference.  In addition to the 28 day limitations described above, you must also submit your enforcement request to the FOC no later than one year after you paid the expense, and within six months after your ex defaults in paying the amount required.  If you have health care insurance, you have to submit your claims to the insurance company within two months after the expense was incurred. 

Being organized and keeping good records is a must in ensuring reimbursement for your children’s health care costs.  Failing to follow any of the time frames means you may end up paying these costs on your own – let’s face it, the doctor’s office is probably not going to be sympathetic to you missing a deadline.

The Burnett Case - a good summer read

If you want a drama filled read involving lawyers, dementia and a sex change, look no further than the recently published Court of Appeals Burnett case (with an absurdly long actual case name – In re Estate of Devon Pearl Burnett, Devon Pearl Burnett, by and through her Guardians, Joseph Buxbaum and Beryl Ellen Niles and her conservator and personal representative, Beryl Ellen Niles v Bobbie Eliza Burnett, Court of Appeals Docket No. 309640, April 16, 2013).

The Burnetts were married in the ‘80s in Ann Arbor and later moved to Pennsylvania.  One day Mrs. Burnett decided to visit her daughter, Beryl Niles, in Michigan and never came back (apparently the marriage was not so good at this point).

Mrs. Burnett’s kids became her guardians in her advanced age when dementia reared its ugly head, and they filed for divorce on her behalf.  Mr. Burnett was not at all pleased about this and filed motions for summary disposition, both of which he lost.  A divorce judgment was entered and he subsequently appealed. 

Mr. Burnett’s first motion seems to hold more merit – he contended that guardians and conservators had no legal right to file a divorce on behalf of an incapacitated individual, and therefore, the divorce complaint had to be dismissed.

Unfortunately for Mr. Burnett, this exact legal issue was already decided in the 2003 case Houghton v Keller, 256 Mich App 336, in which the Court of Appeals held that indeed an incapacitated person’s guardian could file a divorce on that person’s behalf.  To top it off, the Michigan Court Rules give guardians and conservators the legal right to do exactly what Mrs. Burnett’s children did, and file for divorce on her behalf.  This is why one should do his homework before filing pleadings.

The second motion filed by Mr. Burnett was a bit more of a stretch.  He was born a man but decided to undergo gender reassignment surgery and became a woman in 2003, well after the parties were married in 1984.  His argument was that since he was now considered a woman, and Michigan law doesn’t recognize same-sex marriages, their marriage was not valid so a divorce could not be granted.

On its face this argument seems to lack common sense, and to me it appears that grasping at straws is putting it mildly.  The Court of Appeals readily admitted that same-sex marriage is not recognized in Michigan, but here’s the obvious problem with Mr. Burnett’s argument – at the time the parties entered into the marriage contract in 1984, he was indeed a man and Mrs. Burnett was indeed a woman.  Voila, valid marriage contract which entitled her to a valid divorce years down the road, regardless of his gender at the present time.

My personal opinion was that Mr. Burnett did not have a great case from the start and it’s not surprising that he lost his arguments, albeit very interesting ones that make for a good read.  Interestingly, Mrs. Burnett died during the course of the case – making me wonder if Mr. Burnett believes in divine intervention.

Parenting Time Factors: Part Dos

This is the second part of a two part series.

Last month we examined the first five factors for parenting time that the courts should consider, outlined in the Michigan statute, MCL 722.27a(6)(a-i).  Now it’s time for the last four, but before I start, a quick comment on the fourth factor from the last article, “the reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.”

I had explained this in terms of the abuse between the parents during the exchange of parenting time, but failed to mention that this factor can also involve the actions of a minor child.  Unfortunately, at times a child can be abusive to his or her parent, and while I’ve thankfully only seen this in a limited number of cases, it does happen.  This factor can relate to the abuse of a parent at the hands of a child or the other party, and both possible scenarios should be taken into consideration by the court.

Now, moving on to factor six, “Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.”  Is the schedule proposed or ordered something that mom or dad can actually exercise?  Work shifts, where one lives, the distance necessary to travel and other considerations are all things that can impact the reality of whether or not the parenting time schedule will actually function properly and allow the parent to see the child on those designated days and times.

The next factor is “Whether a parent has frequently failed to exercise reasonable parenting time.”  This is why I harp on my clients to make sure they utilize the parenting time schedule they presently have to the fullest, because it can come back to bite you if you don’t.  Obviously if you’re not using all the time you have now, what are the chances that a judge will increase your time in the future?  Not likely.  And if the motion is to reduce a parent’s time with his or her child, there’s a greater chance it will be granted if the parent isn’t complying with the current order.  So please dear parents, use your parenting time!

Have you ever thought that your ex will use parenting time to hide or keep the child from you?  That’s the subject of the next factor, “The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody.  A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.”

If your ex has ever used parenting time as a way to prevent you from having your child during your rightful time, has ever refused to give him or her back on time, or threatens any of this, it needs to be taken into consideration when modifying or establishing any parenting time schedule.  A lot of clients are fearful of this happening, and the person threatening this behavior will often stop after a stern talk from his or her attorney that this is not a good idea under any circumstance.  However, in a domestic violence situation, this is much more of a reality and all such comments and behavior need to be documented and reported quickly.

The final factor is what we call a “catch all,” in that you can include whatever else you think is relevant, as the statute literally states, “Any other relevant factors.”  People will toss in concerns with illegal behavior, abuse, moral issues and the like in an effort to prove their case in court.

The court will look at the Best Interest of the Child Factors, MCL 722.23, for parenting time also, but it is imperative to go through the various statutory parenting time factors when pleading your case to ensure that you have everything covered.  In doing so, you’re giving yourself the best chance possible at success.

Parenting Time Factors, Part Uno

I have seen more sun in the last few weeks than I’ve seen for about five months, which is a reminder that summer is coming faster than we think.  In the family law world, this also means that plenty of parents are gearing up for their often extended summer parenting time.

Naturally, there is a statute in Michigan that provides the court with factors to look at “when determining the frequency, duration, and type of parenting time to be granted.”  MCL 722.27a(6)(a-i).  The first five factors will be examined in this article and the next four in May. 

The first factor is “[t]he existence of any special circumstances or needs of the child.”  This can apply when your child has a physical or mental disability which requires frequent therapy, hospitalizations, doctor appointments, etc. that would make it difficult for parents to have equal parenting time or parenting time during the week.  Most parents are fortunate enough not to have this factor apply, but it certainly does come into play when your child has special needs.

“Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing,” is the second factor.  This one really irritates my male clientele when their children are babies because many believe that their ex should be required to pump her breast milk and give it to the father to use during parenting time.  Often the father’s belief is that if this were required, and he was provided with all of the milk the baby needed, nothing would prevent him from having equal parenting time with the infant.  However, the courts will still consider the fact that only mom can provide this type of nutrition and therefore the child has to be physically present in her care more often than dad’s.

The third factor is “[t]he reasonable likelihood of abuse or neglect of the child during parenting time.”  Clearly if there is a realistic chance that the child will be harmed while in the care of a parent, parenting time needs to be limited, supervised or all together suspended.  Past instances and evidence of abuse, including photos, police reports, valid protective services claims and the like are often used to show that this factor is relevant to a particular case.

Factor four ties into three – “[t]he reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.”  If there was domestic violence in the parents’ relationship, and they are frequently swapping the kids for parenting time, it stands to reason that increasing contact with each other in turn increases the possibility that domestic violence could erupt during the exchanges. 

Traveling for parenting time is also a significant consideration, especially with more parents having to move away to find better or any employment.  Specifically, the statute states:  “The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.”  If the parents live a significant distance apart, whether in the same state (think about the UP in Michigan), or in different states, putting junior on a plane or through a 4 hour car ride one-way isn’t always going to be feasible.

In these cases, it makes more sense to offer the parent longer periods of parenting time so that junior is not constantly trapped in the car, missing out on sleep and school events.  Instead, the child can spend more time in one place, but less frequently, to cut back on issues with travel.

Most people agree that parenting time should change as the kids age and change, and the above five factors are only some of the statutory factors the court may consider – keep a look out for the last 4 in May!

Tax time and the kiddos

Since my dog Verdict was born on April 15, I always remember her birthday and tax day, the former of course being a much more enjoyable holiday to celebrate.  She wanted me to tell you that all birthday treats, bones and toys can be sent directly to her, “Verdict,” care of my office.

When tax day rolls around each year, clients become concerned about who gets to claim Tommy as an income tax dependency exemption.  It is often a disputed subject during the divorce as the exemption can provide significant financial benefit to a parent.  Since 1985, the IRS mandates that the custodial parent receive the right to claim the child’s exemption, unless the custodial parent has voluntarily agreed to release the exemption to the non-custodial parent in writing.  Plenty of parents do agree to alternate the exemption each year if there is just one child, or each parent takes one child if there are two children, etc.

IRS Form 8332, “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent,” is the form that the parent needs to fill out.  Part 1 provides for the release of the exemption for the current year only.  Part 2 of the form provides for the release for all future years relative to that child’s exemption.  Part 3 allows for the revocation of the release of that claim.  To check out the form yourself, go to http://www.irs.gov/pub/irs-pdf/f8332.pdf. 

All of my Judgments of Divorce or other orders incorporating language about the child’s income tax exemption require the parents to cooperate and fill out this form as it needs to be filed simultaneously with the non-custodial parent’s income tax return.  The IRS provides for exceptions to this depending on the date of your judgment or agreement, and if the language complies with what it deems to be “substantially similar to Form 8332.”

Another common question that arises is whether or not the client can change the judgment’s terms regarding which parent receives the exemption.  Well, that depends on what the judgment states.  Per Fear v Rogers, 207 Mich App 642 (1995), the child’s tax exemption can be treated as part of the support provisions of the judgment or the property division provisions of a judgment.  The Fear court stated that the exemption normally should be considered part of the child support award in a judgment, but the court “was not persuaded that the federal income tax dependency exemption is so intricately related to child support that it would be appropriate to preclude parties to a divorce action from ever choosing to treat the income tax dependency exemption as a property issue rather than a child support issue.”  Id. at 646.

So, it boils down to where the language is contained in your paperwork.  If it is contained within the child support section, it is modifiable.  Some reasons for modifying the exemption award would be a change of custody or parenting time – if the original parent awarded the exemption in the judgment no longer has custody, the parent who now has custody should be awarded the exemption. 

If the language is contained within the property division section of the judgment, then it is treated as part of the property settlement, making it non-modifiable, absent an agreement between the parties to change it. 

Wherever I place the exemption provision in the judgment I specifically state that both parties understand that the provision is either modifiable or non-modifiable in the future, so that everyone is on the same page and doesn’t gripe that they had no idea whether or not it could be changed (although to be honest, the griping will likely occur regardless).

Be sure to check out where your income tax dependency exemption is contained in your paperwork and if applicable, complete IRS Form 8332 as this can save you from a headache when it comes around to tax time each year.  I think we all agree that tax season causes enough strife as is.

Very interesting article on surrogacy and Michigan

http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html?hpt=hp_c1