UPDATES IN MICHIGAN FAMILY LAW

Postnuptial agreement that encouraged separation declared void

Postnuptial and prenuptial agreements are becoming ever more popular. Guidance was provided from the Michigan Court of Appeals today for practitioners and laypersons contemplating entering into a postnuptial agreement. In Wright v Wright, Docket No 281918 decided on April 22, 2008, Plaintiff husband challenged the trial court's decision to void the postnuptial agreement. The court of appeals disagreed.

Here, both parties had consented the the agreement prepared by H's attorney. The couple was not separated at the time and had never separated during the marriage. H filed for divorce roughly eight
months after defendant signed the agreement.

Unaccompanied minor rules: Children traveling alone

Elizabeth Sadowski posted the following helpful information on the State Bar's listserv on Friday. Summer is coming and many children will be traveling from the home of the custodial parent to the non-custodial parent's home for parenting time.

Liz says that "Policies for unaccompanied children differ among airlines, so you need to check the website for that particular carrier. " She did, however, post the rules for US Air and for Northwest Airlines.

Divorce & Civility | Part III

The April 2008 issue of the American Bar Association Journal has an interesting article about civility, and citations to four recent decisions in which a trial court sanctioned opposing counsel for incivility. In one case, the infraction cited was the refusal of mail that had postage due of 39 cents and the filing of a motion to strike a second copy of the motion as untimely filed.

See Incivility: More courts are treating rudeness as a reason for sanctions, by Michael B. Keating. This is the 5th article on the web page.

Divorce and Military Families

The stress faced by military  families, frequent moves and deployments can spell disaster for military families. For you, as for most families, divorce can be a life tragedy. You and your spouse entered into marriage with plans for a happy and long future. Perhaps you have children who are young and vulnerable. Divorce can leave your children feeling afraid and uncertain about their future. It can also leave you feeling vulnerable and lost, particularly if you are far from home, without the support of friends and family.

A frequent question asked by military spouses is whether they have to file for divorce in the State where they are based and their children are living, or whether they can file in Michigan. This is particularly true when Michigan is the place they call "Home."

Depositions | Helpful tool in some divorces cases

James J. Harrington, III, an outstanding family lawyer from Novi, Michigan offers this valuable advice about discovery depositions in family law cases:

Depositions are certainly not required in every case or even most cases or even 70% of cases… however as to the remainder they are absolutely critical, mandated, and – arguably – the standard of practice requires them.

Before noticing a Deposition, I consider on a case by case basis the following:

Divorce: Bullying vs. civility

I often tell my clients that if opposing counsel and I can get along . . . if there is civility in the process . . . that it will save them money. This much I can say is true:

If lawyers treat each other with civility, the time spent (thus the cost to the client) is less.

A shark for a lawyer may just result in the lawyers getting a huge percentage of the marital assets, while the divorce drags on and on and on, and the parties' legal fees and costs deplete their portion of the marital estate.

In high conflict divorces, the damage inflicted by and upon the parties and the children can irretrievably harm the parents' ability to co-parent, to be actively there for parent-teacher conferences, high school graduations, weddings, baptisms, bar mitzvahs, bat mitzvahs, and other important family occasions.

Today, Carolyn J. Stevens of Lolo, Montana offered the following suggestions about civility on the American Bar Association's Family Law Listserv, an online discussion group. I invite you to pass them along to your clients, or if you are a lay reader here, to your friends.

High rate of divorce among females in military?

Don Moore reports on the blog Divorce360 that women soldiers in the United States military are more than twice as likely to become divorced as their male counterparts, according to figures released by the Department of Defense. And no one is exactly certain why. The military's figure for divorce in the service for women soldiers of 7 percent is almost twice the comparable figure of the female civilian population in the U.S. who get divorced.

Benjamin Moore, lead researcher for the Rand Corporation speculated as to the cause for these high rates of divorce among female service persons:

Electronic evidence used more frequently

Steve Worrall, author of the outstanding Georgia Family Law Blog, has written many posts recently about the increasing frequency with which electronic evidence is being sought and used in court proceedings. A recent blog article entitled Law evolving as divorces drag in electronic evidence, is well worth the time to read, whether you're a family law subscriber to this Blog or a layperson involved in a pending divorce.

Internet safety | Some comments

Some good comments have come from fellow family law practitioners to my post on safe Internet use. One -- and and the emphasis is mine -- from P. Rowland Graff of St. George, Utah says:

I am sure that we will see more of this in the future because computers are so prevalent in today's society. According to the ABA journal online, A West Virginia Attorney will be suspended for two years for hacking his wife's email account at her law office. Does Lawyer’s E-Mail Snooping Merit 2-Year Suspension? http://www.abajournal.com/weekly/does_lawyers_e_mail_snooping_merit_2_year_suspension. According to the article, the husband was able to guess his wife's password.

Many people use passwords that are comprised of easy-to-remember components, such as part of an address or phone number, a child's name, a pet's name. Let's face it: With a little effort, people who know you well can usually guess your password.

Do take seriously the issue of Internet safety. As a general rule, if you have any concerns about the safety of your Internet communications, do not use a home computer.

For fellow lawyers, here's a tip I received from attorney Jeffrey Zoeller of East Lansing, Michigan, who took a proactive approach to the potential for Internet surveillance:

Safe Internet use | For those divorcing

Whether you are researching the Internet while doing pre-divorce planning, in a relationship with an abuser, or discussing divorce strategy with your lawyer or a friend, you need to take precautions ro avoid exposing your plans and strategies to your spouse or abuser. Otherwise, you risk danger of injury by an abuser or interference with the settlement of custody, parenting time, or property issues.

One of the first things I ask a new client is: "Does your spouse know your email account password?"

The communications you have with your divorce lawyer are intended to be confidential. This is particularly important when you and your lawyer are doing strategic planning. And nowadyas, client-lawyer communications often occur via email, as they do with my practice when my clients live far from my office.

The following are some tips for using email and the Internet safely and securely, while preventing your spouse from reading your email or seeing what informational websites you access online:

Michigan legislators seek to limit no-fault divorce

On February 19, 2008, a bill was introduced in Michigan's state legislature to amend the divorce statute with respect to grounds for divorce. If passed, this law would take Michigan residents back 38 years. In terms of the majority view on morality, evidenced by significant increases in cohabitation rather than marriage as a lifestyle, it would take us back to the 18th century. The legislation, if passed, would state:

Sec. 6. (1) A complaint for divorce may be filed in the
circuit court upon the allegation that there has been a breakdown
of the marriage relationship to the extent that the objects of
matrimony have been destroyed and there remains no reasonable
likelihood that the marriage can be preserved.

Residency requirements for filing divorce

A party must reside in Michigan for at least 6 months and in the county where the divorce is filed for at least 10 days. If those jurisdictional requirements are not met, the divorce can be dismissed for lack of jurisdiction. In Berger v Berger __ Mich App __, __ NW2d __ (2008) (Docket No. 279025 decided January 31, 2008), the Michigan court of appeals dealt with a key issue of residency.

Modification of joint legal custody

      In other areas of this Blog, I write about the significance of having or of not having joint legal custody. Today, I write to make clear what usually makes a difference in whether parents initially--before any major child custody contest, can be awarded joint legal custody. At the conclusion, I explain some ramifications.

      In cases where one parent has not been involved and has to be "dragged kicking and screaming" into a family law case, it's not unusual for the court to award sole legal custody to the other parent. In my practice, I usually see this in either a paternity case or in a family support case.

Divorce Wars & Invasion of Privacy

Yesterday, I wrote about one husband's malicious rant on the Internet. William Krasnansky has published a blog, http://lookatmypugs.livejournal.com in which he reveals the most intimate (and often the most petty) information about his seven (or so) year marriage. His diatribe is obviously intended to get even with his wife who, he says, "Runnoft" and left him.

The man apparently has a Mensa membership, but whoa . . . who could read his blog and think him to be a "smart person?"  In the meantime, the judge has ordered him to remove "any and all Internet postings" about his wife. The ex parte order is challenged as unconstitutional--as an infringement upon his First Amendment right to freedom of speech.

Divorce Wars | Blogs, free speech & getting even

Perhaps you remember the strange case of Dr. Bartha. He's the guy who blew up an historic building in New York City after a divorce court ordered him to sell the building and split the net sale proceeds with his former wife. He had claimed the building as his separate property. His point, I suppose, was "If I can't have it, then neither can you."  I wrote about it here in "Bizarre end to separate property dispute."

Another bizarre case is pending in Vermont where William Krasnansky publishes a Blog found at http://lookatmypugs.livejournal.com/. Mr. Krasnansky's wife "Runnoft" (according to him), leaving him, the two pugs, and the cat. Unfortunately, she also left behind -- Uh Oh -- about seven years' worth of journals, portions of which he has been selectively publishing online.

Despite an ex parte court order issued Dec. 7, 2007 that orders him to take down "any and all Internet postings" about his wife or their marriage, Mr. Krasnansky has refused to take down his blog. He states that leaving the Blog up is “a deliberate act of civil disobedience.”

Who gets custody of pets in a divorce?

It's true, I know, that many people are as attached to their pets as they are to their children. I know some folks who have no children and their pets ARE their "children." Thus, as Liz Sadowski has often pointed out on the State Bar of Michigan's Listserv, deciding who gets custody of "Fluffy" or "Fido" after divorce, annulment or entry of a judgment for separate maintenance can often be as sticky a wicket as who gets the Tupperware. Gee, I hate those arguments over trivial, replaceable personal property like Tupperware. Not that I am suggesting for a minute that Fluffy or Fido are "replaceable." But did the Michigan State Legislature have to get involved?

Will a prenup be enforced if it's not fair?

While fairness is, under the case law in some states, a requirement for enforcement of a prenuptial agreement, the court of appeals established in Reed v Reed, 235 Mich App 131 (2005) that little fairness is really required in Michigan.

In Reed, the parties executed a prenuptial agreement abut 6 weeks prior to the marriage. Mr. Reed was a recent law school graduate. Mrs. Reed had no independent counsel. Their combined net worth at the time of the marriage was less than $20,000. The marriage lasted about 20 years.
 

New tool to help children cope with high-conflict divorce

If you’re a parent going through a tough divorce with custody and parenting time issues and you believe that your children are suffering from stress caused by the fighting, consider a new resource I learned about just today.

National Chauvinistic Husbands Association?

Divorce filings in Japan surged 6.1% after a change in Japanese law. The law, enacted in 2003, but effective beginning in April 2007, entitles a wife to claim up to 50% of her husband's pension in a divorce.

Apparently, it took Japan a while to catch up with reality. In the U.S., pensions have been marital property since 1985. And this makes sense. Retirement plans represent nothing more than deferred income -- whether they are 401K plans that allow employees to defer income through payroll deductions until after the age of 55 or whether they are defined benefit plans that employers use as incentives (and instead of higher salaries in the present) to attract employees. Deferred income is marital property. After all, were it not deferred, it might represent other assets such as equity in a home, investment accounts, etc.

Income-averaging to calculate child support

Interesting reading today in the slip opinions from the Court of Appeals (COA). In addition to some interesting support issues, the property issue was also an interesting read.

In Griffin v Griffin, Docket No. 271194, an Oakland County case, Husband appealed the property division, disputing the trial court's ("T/C'") award of a stock account and 60/40 distribution of a bank and annuity investment, while giving H 100% of his various businesses.

The COA noted that the T/C found H's business appraiser not credible. In addition, the T/C offered to split everything (including the businesses) 50/50, and H declined. Hmmm. What does that say about H's idea of the value of his businesses?

H also found fault with the calculation of child support, which he said was inflated.

Permanent spousal support?

In many divorce cases, the issue of whether one of the parties is entitled to an award of spousal support / alimony arises. If it appears that the trial court might grant a request for alimony, the next question is: "How long might that alimony award last?" Part of the answer to those questions is: "The trial court's decision is dependent upon the specific facts of your case."

In Michigan, appellate court decisions establish that trial courts will apply 11 factors when deciding whether spousal support should be awarded and the amount of such an award. These factors are:

Mandatory joint custody | A Family Court judge's view

 I had the distinct pleasure to meet Judge Jon Van Allsburg of Grand Haven, Michigan at the recent  6th Annual Family Law Institute in Plymouth, Michigan. Judge Van Allsburg had emailed an extremely informative post to the State Bar of Michigan's Family Law Listserv on October 12th about the proposed HB 4564 dealing with a "presumption" of joint custody. I asked him if I could share his message with the folks who read Updates in Michigan Family Law and he graciously agreed. I appreciate Judge Van Allsburg's contribution and his wisdom. The following is his message:

"The discussion of proposed HB 4564 appears to be deteriorating, as recent posts seem to shed a lot more heat than light on the subject.

"However, in the interest of contributing something beyond anecdotes, I'll quote some relevant statistics from my statement read to the House Committee on Family and Children Services last December (with respect to former HB 5267, which is now reintroduced as HB 4564):

What are Michigan's residency requirements for divorce action?

Recently, two different cases have presented here with interesting and critical questions of residency for the purposes of filing for divorce. In Michigan, a no-fault divorce state, the trial court’s authority to grant a divorce is strictly statutory. The relevant statute, MCL 552.9 provides as follows:

(1) A judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and, except as otherwise provided in subsection (2), the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint.

Note that there are some minor exceptions in MCL 552.9(2), but those are unusual cases.

The issue whether a party actually met these residency requirements on the date of filing is a very important question because the parties may not confer subject matter jurisdiction upon the trial court.

Can divorce be made more affordable?

Just as I hit "Enter" to post the last article dealing with the dangers consumers face when using Internet websites to do "cheapie divorces,"  incoming email offered a breath of fresh air.

Scott Bassett, a veteran lawyer who practices Michigan family appellate law, had this to say in a post to the Family Law Listserv about how the State of Michigan might better serve innumerable citizens who need and want a divorce and who cannot afford legal representation. He recommended an unusual and practical approach to legal services called "the unbundling of services." Scott Bassett said:

Online Divorce: Warning from Attorney General

I was recently contacted by a reader of this Blog who asked me for information about whom to contact to report victimization by Michigan Divorce Online. Earlier this year, the State Bar of Michigan Family Law Section became aware that people were being taken advantage of by this online "company" that took money and critical information from consumers, promised to complete and to send them documents that they could file to complete a low-cost divorce, and then sent them nothing, or sent them documents that did not conform to the promises made.

One of the most serious risks consumers faced was credit fraud since Michigan Divorce Online required the consumer to provide such highly confidential information as social security numbers and other financial information.

What can consumers who have been victimized by Michigan Divorce Online or similar web-based companies do? Michigan's Attorney General Mike Cox issued a press release in March 2007 that warned consumers and also gave them relevant advice about how to proceed. I am re-publishing this press release below for the benefit of my readers. Please note that even though 7 months have elapsed since this press release, there continue to be many, many such online services looking for the unwary consumer. A simple Google search today "divorce online forms" yielded nearly 2 million results.

There's an old saying: "Let the Buyer Beware." Don't be one of those consumers who fits P.T. Barnum's old saying: "There's a sucker born every minute."

Preparing for divorce

New clients sometimes ask me about ways in which they can help ensure a good result in their divorce and/or custody cases. Most lawyers are busy people and will be happy when clients help them prepare and settle the case. Below are some things that you can do to help your lawyer get a good result for you. As it happens, many of these things will help you save money as well. 

Be prepared. When the writing is on the wall and you know that divorce is inevitable, you should gather documents and information about important issues, such as your finances. You may be the spouse who has handled finances, so you will know exactly what assets are owned by you and your spouse. Or, on the other hand, you may be the homemaker who has never handled the finances. You may help your lawyer uncover unknown assets or you may just have documents that show the existence and values of assets. Either way, if you are able to assemble documents and information for your lawyer, this will help save your lawyer time. This, in turn, will save you money in the attorney fees that result when your lawyer has to conduct pretrial discovery to find assets.  This may be a second marriage for you and perhaps also for your spouse. Therefore, one or both of you may have assets that will be considered “separate property” by the Court. Having evidence of the existence and value of these assets as well as information about whether they have remained separate and are thus usually protected from division in a divorce will help your lawyer evaluate your case and assess the potential for distribution. Here’s a link to a list of the types of documents that you should assemble. Documents to bring to your first consultation.   

Mediation: How to make it work for your client

Diana Skaggs author of the Louisville Divorce Law Journal alerted me to the excellent mediation blog written by Victoria Pynchon of Beverley Hills, California. If you are a lawyer handling divorce cases and take your cases to mediation regularly, or if you are a client whose lawyer is explaining how mediation can help you settle your divorce case, you will find a wealth of information on Victoria's blog titled Settle It Now: Negotiation Blog. Bookmark this site . . . or subscribe to the feed.

Using the Federal Freedom of Information Act

Recently, I had reason to send out subpoenas to the US Postal Service to obtain information related to a particular aspect of a client's case. In doing the research about how to use FOIA to access US Postal Service records, i encountered this tremendous resource.

A project of the Reporters Committee for Freedom of the Press, How to Use the Federal FOI Act may be read here.

Mahr and other religious marriage contracts: Enforceable or not?

Recently, the issue of Islamic marriage contracts and other religious marriage contracts was discussed on the State Bar of Michigan Family Law Listserv. These contracts are common, particularly among family-arranged marriages. Essentially, they provide for payment of a small sum of money to the woman if the parties divorce.

Often, there is unequal (or no) bargaining power between the parties. Sometimes, the bride is a teenager whose marriage is arranged by her parents in way that is not usual by Americans standards, but one that is the normal course of family business in Islamic families.  The question then becomes, once a marriage breaks down, should the husband, often the titled owner of everything, walk away with everything? What if it's a long-term marriage? What if the husband is educated and has a high earning capacity and the wife is incapable of supporting herself and the children?   

Are you entitled to a full trial after a referee decision?

Litigants often ask what their rights are to a judicial review of a Friend of the Court referee's decision and order after a referee hearing.  In a recent case, the Court of Appeals approved the trial court's refusal to conduct a whole new trial.

The father appealed the trial court's denial of his motion to modify custody. He challenged the trial court's adoption of the Friend of the Court's recommendation and findings of fact  after his timely filed objections. He also challenged the trial court's refusal to conduct an evidentiary hearing.

The court of appeals addresses the application of MCR 2.315 and its impact on a litigant's right to a full evidentiary hearing. The COA also addresses MCL 552.507, particularly the 2004 amendment that allows the trial court to consider an FOC report or recommendation that is submitted pursuant to MCL 552.505(1)(g) as long as the trial court also allows a party to present live evidence.

Litigants need to be aware that they will likely not get a full trial by the judge and that reasonable restrictions upon evidence may be imposed.

Decided on July 19, 2007, Dumm v Brodbeck, Docket No. 274600 is unpublished.
For more information concerning your rights in a custody trial, visit Jeanne Hannah's website www.traversecityfamilylaw.com
Technorati tags: child custody, child support, visitation, parenting time

American attitudes about marriage, divorce, cohabitation, non-marital births, and same sex marriage

A new study of American attitudes about marriage, divorce, cohabitation, non-marital births, and same sex marriage was released on Sunday, July 1, 2007. The results of a national survey were published by the Pew Research Center.  A 91-page PDF copy of this study is available on the Internet.

Marriage. According to this survey, only 4 in 10 of those interviewed say that children are important to a successful marriage. As an illustration of how times have changed, in 1990, 65% of those interviewed felt this way.

The respondents were interviewed on their views of what makes a marriage work. 93% ranked faithfulness as important. [Well, I guess that eliminates a fair portion of Hollywood, if those tabloid headlines are right. No, no, I don't buy those things! But they scream at me when I stand in line at the grocery store!]

Only 12% said that agreement on politics was essential. Other ingredients to a successful marriage were adequate income, good housing, shared religious beliefs, and common tastes and interests. Not surprising, given an increase in the number of 2-income families in the U.S., satisfaction in marriage also depends upon how much a spouse shares in household chores.

Most respondents said that they want to marry. Married persons expressed greater satisfaction with their lives than those who are not married. [I suppose it  is handy not to wonder who's taking you to the ball.]

Other findings of the study mirror earlier research by Pamela Smock of the University of Michigan Institute of Social Research. There is wide divergence in attitudes regarding whether there is a stigma attached to non-marital births and shacking up.

What should you know about alimony?

There is often confusion about what alimony is, about when and in what amount it might be ordered, about how long alimony might be payable, and whether or not it’s modifiable. As you can imagine, given the number of possibilities, an answer to some of these questions can be pretty complicated.

Let’s start with the obvious, though. Whether or not alimony (spousal support) will be ordered by a court is entirely dependent on the specific facts of each case.

What does the judge look at when deciding whether to award alimony, how much and for how long?

In Michigan, there are several factors that the judge will consider when deciding if an alimony award. These factors are similar to those used by judges in states other than Michigan. Among the factors a court may consider are these:

Can commissions, stock options, etc. received after filing be divided in a divorce?

A colleague asked today whether post-judgment earnings from accounts established by a broker during his marriage can be considered marital property subject to distribution during a divorce.  In the case at issue, the husband “receives thousands and thousands of dollars every year as ‘trailers’ for the accounts he has established during the marriage.  They can be compared to ongoing commissions or interest. The effort expended to establish these accounts occurred during the marriage.”

What was not specified is whether a final judgment of divorce has entered, but I make the following assumptions: (1) that no judgment has yet entered; (2) that substantial sums annually will be paid to the husband following entry of divorce; and (3) that the wife wishes to have an equitable distribution of the stream of future income attributable to these "trailers" (a word I assume must be something like a commission.)

There are two possible scenarios here. Obviously, the wife would prefer a cash award, but it may difficult to fix a value for these “trailers.” Whenever the value of an asset cannot be determining with reasonable certainty, a trial court will reject assigning a value. However, what if the husband has been receiving trailers for a number of years? Doesn’t the problem then become more similar to determining the present value of a business based upon an average of the annual receipts?

Online Divorce: Warning from AG

Michigan's Attorney General Mike Cox warned consumers today about "Michigan Divorce Online"—an online company advertising low-cost Michigan divorces. Numerous complaints have been received by the Attorney General's Consumer Protection Division. Consumers complain that they paid the company money and gave them personal information to start their Michigan divorce proceeding and the company did nothing in return.

The web site for Michigan Divorce Online is
www.michigandivorceonline.com.

According to the attorney general’s office, the company is using a bogus address. Consumers leaving messages on a phone number posted on the web site have not, they say, been returned. The website is registered to someone located in California.

The AG’s office counsels consumers to check to see if they’ve been the victims of identity theft since the information requested and given to the company includes social security numbers.

Read the AG’s entire Press Release here.

To visit Jeanne Hannah's website for more information, click here.

Credit card debts and marital strife

I am never surprised when clients in divorce cases I handle have incredible credit card debts. Marital stress leading to divorce often results from financial stress. It’s important for my clients to know more about their credit card debt and to see how they might avoid problems in the future. An article from the March 10, 2007 Washington Post makes clear how credit card companies often have unfair policies that compound credit card debt in ways that consumers do not predict or expect.

According to the Washington Post, credit card companies frequently don't pla