UPDATES IN MICHIGAN FAMILY LAW

Special Interests Attempt to Eviscerate Michigan Family Laws Re Property

Brian Dickerson wrote an insightful article published in the Detroit Free Press today. The past week has aroused deep concern among Michigan family court judges and family law attorneys who were only recently made aware of proposed legislation--two bills introduced last month by state Rep. John Walsh, R-Livonia--that would make radical changes in Michigan law about the division of appreciation in separate property of one spouse that has accrued during the marriage and also about how a trial judge may treat separate property if a division of marital property is insufficient to maintain a former spouse and children in his/her care.

The current laws in Michigan would allow the trial court judge to award an equitable share of the appreciation built during the marriage to a stay-at-home parent. In addition, a trial court judge could invade separate property of one spouse if the division of marital property would leave the non-titled spouse with insufficient means to support that spouse and any children in his/her care. The proposed statutes, if enacted into law, would eviscerate existing law and would take women and children back to the dark ages, resulting in servitude and poverty.

Civil Contempt Proceedings in Child Support Cases in Michigan

Judge Hoort, of the 8th  Judicial Circuit Court pointed out today that he thought in Michigan folks who are faced with civil contempt for non-support are entitled to court-appointed attorneys. Since I love a challenge, I went to my favorite Internet law library (TheLaw.net) and quickly found the Michigan case law supporting his point.

In Mead v Batchelor, 435 Mich. 480 (1990), Michigan's supreme court reversed Sword v. Sword, 399 Mich. 367 (1976), holding that “[i]n light of more recent developments in due process jurisprudence and changes in Michigan statutes governing child support enforcement, we now are persuaded that our holding in Sword must be modified to recognize that the Due Process Clause of the Fourteenth Amendment of the United States Constitution precludes incarceration of an indigent defendant if he has been denied counsel in a contempt proceeding for failure to pay child support.”

Go Directly to Jail | Do not Collect $200

A sharply divided U.S. Supreme Court held that a South Carolina court violated father's constitutional due process rights where he was not given a lawyer or other help before he was jailed for failing to pay child support. In a 5-4 decision, the high court did not go so far as to say that states are required by the Due Process Clause of the Constitution to provide lawyers for poor people in civil cases where a person faces jail time.

Michael Turner, a South Carolina resident, was sentenced to serve up to 12 months in jail for felony non-support, even though he insisted he could not afford his child support payments. Turner had no lawyer. He claimed, and had plenty of support from activists, that all people facing a jail sentence have a constitutional right to an attorney. The Supreme Court held only that a trial court must use "alternative procedures" to ensure "fundamentally fair" hearings.

Scam Marriages of Elders | Voidable or Not?

Rob Robertson, Family lawyer from Austin, Texas provides as a follow-up to a recent post about scam marriages of elders, the following statute from Texas. [Prior post: "Predatory Marriage: Do You Know Where your Parent Is?"]  As I receive statutes from lawyers in states where this has been addressed, I will continue to provide them to you. It is interesting that the Texas statute was enacted in 2007. Perhaps Michigan should consider a law similar to this. What do you think?

Increase in Numbers of Same-Sex Couples Adopting Children

The New York Times reports that the incidence of same-sex couples adopting children has increased sharply. Although only two states — Utah and Mississippi prohibit same-sex couples from adopting, they face significant legal hurdles in about half of all other states. Primarily, this is because they cannot legally marry in those states. Gary Gates, a demographer at the Williams Institute on Sexual Orientation Law at the University of California, Los Angeles, was quoted as saying that about 19 percent of same-sex couples raising children reported having an adopted child in the house in 2009, up from just 8 percent in 2000.

Advocates for gay families say are two distinct trends are reasons for the increase in these adoptions:  the need for homes for children currently waiting for adoption —(now about 115,000 in the United States) and the increased acceptance of gays and lesbians in American society.

Predatory Marriage: Do You Know Where your Parent Is?

When I was growing up and babysitting for 25 cents per hour (plus all the Coke and pretzels I could consume), the best part of the job was that I could stay up late and watch TV [black and white]. Right around midnight, a public service announcement would say in an ominous voice: "Do you know where your children are?"

Today the question might be: "Do you know where your parent is?" As Kelly Greene reports in the Wall Street Journal, many adult children are surprised to learn the day before a parent's funeral that their parent had married a hired caregiver and the surviving spouse is claiming the bulk of the estate. Ownership of bank accounts has been changed. Retirement account beneficiaries have been changed. Greene asks: Is there anything that children can do to defeat statutory rights of surviving spouses when it's obvious that it was just a scam?

According to Greene, in a few states, courts and lawmakers are starting to make it easier to unwind a "twilight union." Florida closed a loophole last year by enacting a law that gives heirs and others the legal standing to challenge any marriage—even after a spouse's death—on the grounds of fraud, duress or undue influence.

As Surrogacy Becomes More Popular, Legal Problems Proliferate

Surrogacy is not legal in Michigan, however laws in many states permit surrogate mothers to carry babies created by ART (assisted reproductive technology) or IVF (in vitro reproduction). Many couples want a child of their own, but for one reason or another, cannot do it on their own. Sean and Carolyn Savage, about whom I wrote the other day, could not use their own remaining embryos after Carolyn had successfully (albeit with great difficulty and cost—emotionally, physically and financially) carried to term another couple’s baby when Carolyn’s fertility doctor implanted the wrong embryos. Carolyn simply could not physically manage another pregnancy. So Sean and Carolyn looked for and found a surrogate who was willing to carry their own embryos. Sadly, two pregnancies miscarried and the Savages were left without an addition to their family of five.

Other couples, LGBTs, also want a child or children of their own. Some lesbian couples can accomplish a pregnancy with one being the birth mother using her own eggs and using donor sperm.

IVF | Inconceivable: A Medical Mistake . . . and Parents' Love

Inconceivable: A Medical Mistake, the Baby We Couldn't Keep, and Our Choice to Deliver the Ultimate Gift is a heartbreaking story about a loving couple, Sean and Carolyn Savage, who had struggled with infertility. They choose to use some of their remaining frozen embryos in an attempt to enlarge their family of three, knowing that if this IVF doesn’t work, they will have to let go of their dreams for a larger family. Imagine Sean and Carolyn’s joy when they learn that Carolyn is pregnant. Inconceivably, they learn at the same time that the fertility clinic has made a mistake and implanted embryos belonging to another couple! Carolyn makes the decision to carry the baby to term, knowing that she will have to relinquish the child at birth to the genetic parents.

Divorce Do-Over? | "Let the Wild Rumpus Begin!"

Ron Fabian, of Jackson, Michigan, calls our attention to a divorce litigant's efforts to have a "do-over" of his divorce settlement. Of interest is the fact that both litigants are highly-qualified lawyers:  Plaintiff Husband Simkin ["H" or "Ex-Husband"] is a partner and chairman of the real estate department at a large and prestigious New York law firm; Defendant Ms. Blank ["W" or "Ex-Wife"] is the deputy senior university director of labor relations at a university in New York. They were married in 1973, separated in 2001, and divorced during the summer of 2006.They negotiated a settlement arriving at September 1, 2004 as the date for division. 

On June 27, 2006, they entered into a formal, written, properly acknowledged and executed agreement to divide their property (the "agreement"). They agreed to an approximately equal division of marital property acquired during this long-term marriage. H was to get one residence and W the other, each received his/her retirement accounts, significant personalty was divided between them, H received his partnership interest in the law firm and his interest in Bernhard L. Madoff Investment Securities, an asset in his name only. H was to pay certain marital debts, and H was to pay Wife $6.6 million to equalize the settlement.

The usual boilerplate was included in the agreement, including an acknowledgment that the property distribution represented a fair and reasonable division of their assets, a release of claims provision, and a merger clause (meaning that the terms of the settlement were to be merged in the judgment of divorce). Simkin liquidated some of the Madoff Securities, to make the payment to Ex-W. Imagine how stunned Ex-Wife was when Ex-Husband sought two years later to reform the judgment.

Ex-Husband's claim is certainly novel. In an attempt to avoid the standard defenses to a suit to amend a judgment, (e.g., the judgment / settlement agreement is a contract and the court will not re-write a contract that is not ambiguous, but will enforce it or uphold the terms if they are clear and unambiguous, and absent fraud, duress, unconsionability, etc.), Ex-Husband alleges that the parties were "mutually mistaken" about their assets when they negotiated their settlement. In Ex-Husband's view of the world, the parties only thought they owned $5.4 million in Bernhard L. Madoff Investment Securities. In fact, says Ex-Husband, since Bernie Madoff was running a Ponzi scheme, they owned nothing. Ex-Husband did not discover this right away because he elected to leave his Madoff monies "fully invested" and thus, when that ship was sunk two years following the agreement and divorce judgment, he got nothing. Ex-Husband claims that Ex-Wife benefited when Madoff acknowledged the fraudulent scheme, and Ex-Husband was left holding a large empty bag. [Oh, it's the old Pie in the Sky problem.]