UPDATES IN MICHIGAN FAMILY LAW

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.

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:

Civility & Divorce | Part II

Attorneys Michael V. Kattelman and Robert Cerceo wrote an excellent article on civility that was published in the November 2006 State Bar of Nevada Bar Association's journal "Nevada Lawyer." Recently, the article was quoted on the ABA Family Law Listserv. This valuable piece of advice begins:

All right, listen to me.  You pull up right where she lives, right?  Before you get outta the car, you lock both doors.  Then get outta the car, you walk over to her.  You bring her over to the car.  Dig out the key, put it in the lock, and open the door for her.  Then you let her get in.  Then you close the door.  Then you walk around the back of the car and look through the rear window.  If she doesn’t reach over and lift up that button so that you can get in, dump her.

                            Sonny, A Bronx Tale, 1993

    In litigation, dealing with the Court and opposing counsel is like dating.  The lawyer who does not “lift up that button” eventually gets dumped on by his peers in the legal community or the judges’ decisions, or both.  And like dating, whatever happens in the car – front or backseat – spreads like a wildfire to the next group of potential dates.  Or worse, to the “parents” (judges).  The lesson?  Be civil.  It pays off for your client and your long term reputation.  Be uncivil, and you’ll eventually be stuck with clients who can afford to be uncivil to you.   

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.

More about using the Internet safely

Recently, a Michigan family lawyer wrote to ask some very good questions. Her questions and my answers are below. Please note that my answers are generalized, and do not cite to specific laws. The Stored Communications Act referenced below is a federal act. No matter where you reside or practice, you'll also want to consider the laws in your state that govern Internet usage and access.

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.

When a party asserts the Fifth Amendment in a divorce proceeding

A very interesting article on remedies available when a party asserts the Fifth Amendment and refuses to answer questions in a divorce proceeding was posted today in Diana Skagg's Blog, Divorce Law Journal. See Remedies Available Following Claim of Fifth Amendment Privilege in Divorce. While the post doesn't cite any Michigan law, it has plenty of cites to cases explaining how other states have handled Fifth Amendment claims in divorce cases. In other words, there is plenty of food for thought here.

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:

Rationale of unpublished case adopted by court of appeals

In re Jordan, ___ Mich App ___ ; ___ NW2d ___ (2008), Court of Appeals Docket No. 276924 decided February 12, 2008, the lower court terminated the parental rights of the mother to her six children. The court also terminated the parental rights of the biological father of one of her children. He then appealed, claiming that the trial court erred in using his conduct prior to the time he established parentage against him. The court of appeals disagreed and affirmed the lower court, establishing an important legal precedent.

Equally important was the court of appeals’ adoption of the rationale used in an unpublished case. Family law cases rarely are published and many lawyers believe that it’s wrong to cite an unpublished case. Yet in this area of practice, the specific facts of a case are usually determinative of the result. Thus, when an unpublished case has a factual pattern similar or identical to the one at bar, I and many lawyers whom I know and respect often cite unpublished opinions. From time to time, the court of appeals has said that such cases with similar fact patterns "are instructive," even if not binding upon a court.

Model parenting time plans

If ever there were a time to discard the concept of "one size fits all," it's when parents or courts are fashioning parenting time schedules for minor children. Clearly, this is one instance where the same plan doesn't work for all children or for all families. That is why a model plan can help parents work out the details.

It doesn't take a rocket scientist to realize that an infant can't spend one week with mom and one week with dad without harm. Children who are 18 months to 3 years old have a different set of developmental needs.

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.

Should a mother and her boyfriend falsely claim he's the father?

A question was posed today whether a man and woman commit perjury by signing an affidavit in which each knowingly and falsely states that the man is the child's "natural father," knowing that he is not the biological father. The answer to the question is not likely to be found in a hair-splitting analysis of what a "natural father" is.

Can you say "perjury?" One analysis might take into consideration the fact that in 2004 a woman who filed a false affidavit  was successfully prosecuted for perjury for making a false statement in a domestic relations case. The case is State v Lively, 470 248 (2004). The Court's analysis of the perjury statute bears a reading.

Don't let the "trees" block your view of the "forest." What's the big picture? I would not end my analysis with the perjury issue, even if I concluded that there's little likelihood that either party will be prosecuted for this felony and/or that the statute of limitations might run prior to the time that anyone ends this cohabitation relationship or before the real biological father with an ax to grind raises the perjury issue. That is because there are far larger issues at stake here.

What does the client stand to gain by signing the Acknowledgment? What are the specific protections? What are the specific (and real) detriments? Because the legal interests of the biological mother and the man willing to acknowledge as a father are so very diverse, the real problem is to figure out whether the client is well-served by signing a false Acknowledgment of Parentage and whether he or she has any further benefit or detriment arising from this action. [Here's the State's Form DCH-0682w].
 

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.
 

Postnups on the rise?

According to the New York Times on December 9, 2007 postnups are becoming more popular. Dr. Phil has featured them on TV, and lawyers belonging to the American Academy of Matrimonial Lawyers who were polled state that they are being asked far more frequently to draft postnups. Usually, say these lawyers, the postnup is entered into after discovery of some marital infidelity and perhaps only props up a marriage for a while. The postnup does allow the parties to define their rights and obligations in the event of a divorce or separation.

Revocation of Acknowledgment of Parentage | A roadmap

The Michigan Court of Appeals decided Johnson v Smith on November 20, 2007, giving us yet another lesson in how and when an acknowledgment of parentage may be revoked.

In Johnson, the parties were involved in an “on again, off again” relationship that began in the late 1980’s. They never married. A son was born on January 24, 1990 and was named Hollis DeAngelo Smith III. Defendant signed an acknowledgment of parentage on the day following the child’s birth. Orders regarding child support, custody and parenting time were subsequently entered.

The child lived with his mother for much of his life, but resided with the defendant for three years from 1995 through 1998. He also lived with the defendant from April 2001 through Christmas 2001. About then, the parties began to disagree about parenting time at Christmastime 2001. The mother then apparently told the defendant that he was not the child’s biological father. Thereafter, the mother and child disappeared for almost two years.

Toward the end of 2003, defendant filed a motion to revoke the acknowledgment of paternity. The child’s mother opposed the motion, as well as other motions filed by defendant relating to child support. During these proceedings, defendant took the child who was now 13. Rather than taking the child shopping, as had been intended, the defendant arranged for unauthorized DNA testing. The test results revealed that defendant isn’t the child’s biological father.

In possession of this new fact, the defendant re-filed his motion to revoke the acknowledgment and, concurrently, filed motions to vacate the existing child support orders.

The trial court denied defendant’s motion to revoke, holding that defendant had not shown, by clear and convincing evidence, that the “equities of the case” required setting aside the acknowledgment.

Child support and TANF payments

The New York Times today reported that up to 50% of the states collect child support from absent fathers and primarily use those collections to recoup the monies paid out to mothers and children through TANF grants (Temporary Assistance to Needy Families). According to the NY Times, nearly half of the states pass along none of the funds collected in child support to families on welfare.  Other states pay about $50/month to the custodial parent (usually a mother), despite the fact that the absent father may be paying hundreds of dollars per month.

Read Mothers Scrimp as States Take Child Support, New York Times, December 1, 2007. A one-time registration may be required.

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.

Getting a Fair Settlement: Discovering Hidden Assets

It's become more common these days for couples to seek a low-cost divorce, often with only one party being represented and the other party sometimes retaining a lawyer to look over the final paperwork. In cases such as these, lawyers are often given a list of marital assets and marital debts and asked to help a party devise a reasonable settlement offer that can be presented to the other spouse.

In other cases, where the financial asset/debt picture is more complicated, some discovery is usually warranted, and the attorney for the spouse who doesn't handle the finances may -- or may not -- send out what is called in my office "the burdensome and oppressive discovery requests." This is usually a "canned" set of interrogatories and requests to produce documents. It consists of about 20 pages containing than 100 requests, some of them with 5 to 12 subparts. Sometimes a lawyer will tailor the requests to the specific case, deleting ones that do not apply (not often enough, in my experience) or adding specific interrogatories that inquire into certain more unusal assets owned by the parties. Responding to these requests can take my client 40 hours or more. I resist the temptation to engage in the "what comes around, goes around" approach. If I believe that the other spouse really doesn't have a clue about the finances and hasn't hidden any monies -- this latter being based upon my client's statement that the other spouse (usually the wife) doesn't have access to the assets, then I do not send out discovery requests to that party. Instead, I advise my client to work hard to produce complete and accurate records.

In other cases, I represent the "clueless spouse" -- the one who's been kept in the dark. Then I recommend to my client that this thorough discovery or some modification of it be made. Usually the spouse agrees. Sometimes she doesn't authorize discovery because she wants to save money.

Now suppose that you are the client who wants to save money on legal fees and expenses. What is most appropriate for you? What will protect you?

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.

Treatment of "pre-inheritance transfer" of property in divorce

In Wells v Wells, Docket No 271465, decided on November 20, 2007, the COA upheld the Ottawa County Circuit Court where W challenged the T/C's distribution. 

W appealed the T/C's exclusion from the marital estate of H's partnership interest in a "Family Farm" that was owned and operated by H and his brothers. The COA characterized this property a pre-inheritance transfer from H's parents to their sons, which should be treated just as inheritances are by the T/C. The COA concluded that the T/C properly ruled that the partnership and his stock in the partnership formed with his brother was H's separate property and was properly excluded from the marital estate.

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.

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.

Is it legal to tape record?

Parents often ask me whether it's OK if they tape record telephone calls between themselves and their co-parent or between their co-parent and the children.

Sometimes, recordings might be made by videotape. What's legal and what is not?

You'll find an excellent reference guide on the website of The Reporters Committee for Freedom of the Press. Can We Tape?

New IRS Form 8557 - "Innocent Spouse" relief

Whenever a client believes that the other spouse has cheated on tax returns that were jointly filed, it's going to be important to help the client gather sufficient information and evidence to support relief and protection from tax liability.

The IRS has recently released a new form for those claiming "innocent spouse" status. This form can be used as a checklist so that attorneys may help their clients clarify their status. You can access IRS From 8557 here.

Technorati tag:  IRS innocent spouse rule

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.

Consent judgments are interpreted like contracts between the parties

I recall a question raised not too long ago on the State Bar's Family Law Listserv about whether judgments and orders can be interpreted according to contract law. In Slota v Slota [Docket No. 269640] decided on September 13, 2007, the COA held that the parties' consent judgment would be interpreted in the same manner in which the court interprets contracts since it essentially constituted an agreement or contract between the parties.

The husband was aggrieved because the lifetime alimony award was secured by a lien against the real estate he was awarded. By the parties' agreement, this lien was to be superior to all other liens or mortgages. Of course, when Husband went to the bank for a loan against the real estate to pay off a lump sum due to his ex-wife, the bank refused to loan him money if their secured position was secondary rather than primary. He asked the trial court to amend the judgment to make the ex-wife's lien secondary. When the T/C did so, the ex-wife appealed and the COA reversed.

The COA was unsympathetic and said that a motion for amendment of a consent judgment should be treated the same way as one to reform a contract. The COA noted that Husband's unilateral mistake in not recognizing that the priority of the lien would make financing impossible for him could not be grounds for reformation of the parties' contract.

You may read Slota v Slota here.

Technorati tags: alimony, spousal support

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

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: