UPDATES IN MICHIGAN FAMILY LAW

Facebook Alteration Leads to Perjury Charge

Christine Paige Borrowdale will never win a Mother of the Year award. What did she do? In an attempt to get her boyfriend acquitted of abuse of her 16-year-old son, she allegedly created false Facebook postings. She now faces a warrant for perjury and tampering with evidence.

During the June 2013 trial of her boyfriend, in an attempt to exonerate LeBlanc who was on trial for abusing her teenage son, Borrowdale testified under oath that she had printouts that showed her son was engaged in a Facebook conversation at the time LeBlanc was accused of abusing him.

Perjury is not usually charged because it is difficult to prove that testimony is false. In this case, it is reported that computer forensics showed that Borrowdale had changed the time setting on her computer, thus altering both the computer registry and also the time and date stamp on her son's Facebook post.

 You may read the entire Traverse City Record Eagle article here. [Last accessed October 9, 2013]

Device to Help Diagnose ADHD Approved by FDA

The FDA has approved a device that works like an EEG measures brain waves to assess attention-deficit/hyperactivity disorder in children and adolescents.

The device is called the "NEBA system" (for Neuropsychiatric EEG-Based Assessment Aid). It measures the ratio of theta to beta waves (higher quotients are found in those with ADHD). An FDA official said the device "along with other clinical information may help health care providers more accurately determine if ADHD is the cause of a behavioral problem."

OK to Fire a Woman for Being too Attractive

The Iowa supreme court says it's OK to fire a woman who is doing a great job, but who is so attractive that a married boss wants to have sex with her. A married dentist, James Knight, fired his employee Melissa Nelson beause he was attracted to her. At his wife's encouragement, Knight fired Nelson so that his feelings of attraction for her would not endanger his marriage.

Apparently, the fact that Nelson didn't flirt with him or give any appearance of interest in carrying on an extramarital relationship is irrelevant to his decision and irrelevant to her right to a cause of action for sex discrimination.

She was nevertheless fired, not because Nelson was bad at her job, but because Knight said he might be tempted to have an extramarital affair with her, and in fact, made unrequited advances. In other words, the dentist, with his wife's encouragement, fired his assistant so he wouldn't be tempted to pursue a woman who'd expressed no romantic interest in him.

The Iowa Supreme Court held that the termination was legal and wasn't technically gender discrimination. In other words, the court held that the fact that Knight didn't fire Nelson because she's a woman but because he was attracted to her was a defense against a sexc discrimination lawsuit.

Now there's a giant step back for women--and no work for a divorce lawyer.

 

Michigan Medical Marijuana Act | Driving Under the Influence

Finally, the decision many family lawyers and criminal lawyers have awaited has been released by the Michigan Supreme Court. The question raised was whether a driver can be arrested for driving while under the influence when the driver has a medical marijuana registry card.

The holding:    Those who have a valid MMMA registry card cannot be prosecuted for having some THC in their system under MCL 257.625(8) – the zero-tolerance statute - because the MMMA provisions control; but they can be prosecuted under the MMMA if it can be shown that they were “under the influence”.

In Koon, the defendant was charged in the 86th District Court with operating a motor vehicle under the influence of THC. When stopped by the police, Koon told the officer that he had a medical marijuana registry card and admitted that he had smoked marijuana five to six hours earlier. THC was found in his bloodstream.

Judicial Tenure Commission Suspends Family Law Judge for 4 Years

The West Virginia Supreme Court of Appeals has suspended without pay an admittedly intemperate family court judge for four years. This just happens to be the remaining years of Putnam County Circuit Court Family Law Judge William M. Watkins III's term. More than 200,000 viewers have watched a YouTube video of a particularly vituperous rant during a hearing in a family law case. Judge Watkins repeatedly told a pastor appearing before him to "shut up." The court of appeals quoted significant portions of the transcript showing the judge's inappropriate language.

The YouTube video was, in a word, amazing. However, since I viewed it about a week ago on YouTube, it has been replaced with this image:

Newly Divorced? Refused a Mortgage? Here are some Possible Reasons

A slideshow presentation on MSN.com explains some of the factors that can make a person unable to qualify for a mortgage. Bill Briggs of SwitchYard Media says that the days of Zero Down, and instant on-line approval are a thing of the past. The Federal Reserve reports that  nearly a quarter of the people who apply for home loans are denied.

These are some of the hurdles home-buyers will have to get over to qualify for a mortgage:

• Lending institutions are asking for mountains of documents to prove your financial stability.
• The applicant may face invasive questions from the potential lender — for example, a large cash deposit in an account may be questioned: Was it a gift or was it a loan?
• The slideshow explains 10 factors that can jeopardize your efforts to obtain a mortgage and/or can just plain put the kibosh on it. Some of the things on the list involve actions you should avoid during your mortgage-hunting process.

See What Makes You Unmortgageable on the MSN.com website here. [Last accessed on December 8, 2012]

Constitutionality of Prohibiting Procreation

Yesterday's post about a Wisconsin court's decision to prohibit a man from procreating as a condition of probation in a felony non-support case and a comment from Carrie E. Huff, of Mallory, Cunningham, Lapka, Scott & Selin, PLLC in Lansing, Michigan, that the probation requirement of not procreating sounded unconstitutional to her inspires this post. The answer is: In Michigan, such a prohibition is unconstitutional. In Wisconsin (and who knows where else), it is not. The issues of course are fundamental rights of privacy, due process, and equal protection of law.

A 1925 Michigan Supreme Court case upheld a Michigan statute that provided that, so long as procedural steps were followed, a Court could issue an order for sterilization of "mentally defective" persons. Smith v. Command, 231 Mich. 409, 204 N.W. 140 (1925) Download Smith_v_Command,_Probate_Judge

It amazes me that it took seventy--70--years for the Michigan Court of Appeals ("COA"), on remand from the supreme court in lieu of granting leave, to reject the holding in Smith.  The supreme court remanded to the COA for reconsideration as on leave granted "to reconsider, without limitation, whether probate judges possess the power to authorize a guardian to consent to the sterilization of a developmentally disabled citizen."  In re Wirsing (On remand), 214 Mich.App. 131 (1995)

Man Ordered Not to Procreate as Condition of Probation | Felony Non-support

A Wisconsin man who owes $50,000 in child support and $40,000 in interest was sentenced on Monday to three years of probation with an added condition: he may not procreate. Corey Curtis, age 44, of Racine, Wisconsin, has fathered nine children with six women. He was sentenced on Monday after pleading no contest in October to jumping bail and failing to pay child support.

According to news reports, Judge Tim Boyle of Racine County began the hearing by expressing his regret that he didn’t have the authority to order sterilization. When the prosecutor, citing a 2001 ruling by the Wisconsin Supreme Court, told Boyle that he did have the authority to restrict Curtis from having additional children unless he could show ability to pay as a condition of probation, Judge Boyle added the condition.

Advocate for Michigan Public Schools | Oppose Proposed Legislation

Dear Michigan Parent | Public School Advocate:

Right now, your legislator is considering a plan that creates a single, statewide school district that is accountable to a board, not elected by the people, but instead appointed by the Governor.

Not only would this district not be governed by any local elections, it would operate without any oversight from the Michigan Department of Education- - and your tax dollars would be sent to this new super-district without any approval from your elected representatives.

Under this plan, this new school district will be able to open schools anywhere it wants in the state, not just where there are failing schools. The bills even say that your home district must sell some of the buildings your community owns to this new district if it wants to operate a school there.

Practicing Law in Shariah Courts | A Valuable Resource

The American Bar Association has published a new resource that will be helpful for those lawyers practicing in locales with clients whose marriages have been contracted according to Shariah law. The book is titled Practicing Law in Shariah Courts: Seven Strategies for Achieving Justice in Shariah Courts. It describes the Shariah courts of Northern Nigeria, and offers advice for counsel practicing in Shariah courts worldwide, particularly in cases involving women. The author, Hauwa Ibrahim, is entering her fifth year at Harvard University. Prior to joining Harvard Divinity School Ibrahim was a Radcliffe Fellow and was a jointly appointed Fellow to the Human Rights Program and the Islamic Legal Studies Program.

Ibrahim provides valuable insight into practicing law in Shariah courts, and answers some questions that arise from being on the field, and also from her experience of seeking justice under these laws both legally and spiritually. Ibrahim discusses the delicate and flexible boundary between the rule of law and individual interpretations of Shariah Law that may unjustifiably cause individual and social ills.

How Children Succeed. A Resource for Parents in High-Conflict Cases

Family lawyers encounter more high-conflict divorce and custody cases now than ever before. Today I found a resource for parents to help them raise more secure, self-confident children. Feel free to share this with your clients, friends, and others who are parenting children, no matter what the ages of the children.

Paul Tough argues that how young people build character is key to their opportunities to succeed. It isn't how well children do on IQ scores, standardized tests or vocabulary quizzes that determines whether they will make it or not, he says. Tough explores this idea in his new book, How Children Succeed: Grit, Curiosity and the Hidden Power of Character.

Tough begins with attachment theory. He says: "when kids are really young--when they are in their first year or two of life--my sense from the research is that you can't be too loving."

Kids, Cars, Heatstroke & Death | A Warning for Parents

KidsAndCars.org reported last week that in the six-day period from Aug. 2 to 7 eight children from 5 months to 4 years old died of heat stroke in vehicles in four states: Arkansas, Tennessee, Florida and New Mexico.

Janette Fennell, president of KidsAndCars.org, a national nonprofit child safety organization working to prevent injuries and deaths of children in and around motor vehicles, spoke Wednesday, Aug. 22, at a press conference sponsored by the National Highway Traffic Safety Administration at Children's Mercy Hospital in Kansas City, Mo.  The event focused on programs to prevent child heatstroke deaths and injuries in hot cars and to urge parents and caregivers to think, "Where's baby? Look before you lock."

Just Wait Until Your Mother Gets Home!

That dreaded threat: "Just wait until your dad gets home" is different in many American households today, as recognized by a cover on the New Yorker Magazine May 12, 2012, [See left, click on link to access archives of the New Yorker] The statistics are really interesting.

According to Alex Williams, writing for the New York Times, in the last decade the number of men who have left the work force entirely to raise children has more than doubled, to 176,000. His information source is recent United States census data. Williams says that when one includes men who maintain freelance or part-time jobs but serve as the primary caretaker of children under 15 while their wife works, there are around 626,000 acting as the primary caretakers of children. You can access the Census reports here.

Just Wait Until Your Mother Gets Home, Aug. 10, 2012, New York Times, by Alex Williams may be read here.

Single Parenthood as a "Child Abuse Factor" Proposed in Wisconsin

Good grief! What's in the water in Wisconson? [Perhaps Rush Limbaugh is swimming?] A legislator proposes that single parenthood be, as a matter of law, a child abuse factor. The proposal calls statewide educational and public awareness campaigns and materials for the purpose of developing public awareness of the problems of child abuse and neglect. In promoting those campaigns and materials, the board shall emphasize nonmarital parenthood as a contributing factor to child abuse and neglect.

You may read the proposed legislation and news article here: GOP State Senator Introduces Bill To Brand Single Parenthood As Child Abuse Factor, on mediaite.com.

Trial Court may Modify Federal Dependency Exemption in a Prior Judgment

The Michigan Court of Appeals decided Clarke v Clarke, 297 Mich App 172 (2012) on June 26, 2012. In this decision, despite the fact that the tax exemption had been agreed to be alternated between the parties in odd and even numbered years, the court of appeals makes clear that the tax exemption is related to the child support and can be modified by the trial court.

IRS Publication 501 (a downloadable PDF file) makes clear that to be entitled to the tax exemption according to the federal tax code, a parent must have custody of the child for more than one half of the year, and it was this requirement that was the rationale for the Clarke panel’s decision. For the rules regarding the exemption, see IRS Publ. 501 at Table 5. "Overview of the Rules for Claiming an Exemption for a Dependent." [Page 12]

Judith S. Wallerstein Dies at Age 90

Judith S. Wallerstein, a psychologist who touched off a national debate about the consequences of divorce by reporting that it hurt children more than previously thought, with the pain continuing well into adulthood, died on Monday in Piedmont, Calif. She was 90.

The New York Times coverage is here.

Pre-birth DNA Testing? It's a Reality

Following up on my most recent post about sweeping legislation that will open up the door for many Michigan biological fathers to establish their paternity with respect to children born or conceived during a marriage, this article from the New York Times caught my attention today.

In Before Birth, Dad’s ID, reporter Andrew Pollack writes:

"It is an uncomfortable question that, in today’s world, is often asked by expectant mothers who had more than one male partner at the time they became pregnant. Who is the father?"

Sweeping New Changes to Parentage Laws in Michigan

Legislation inspired by a Livingston County man’s story was signed into law Tuesday by Governor Snyder. Public Act 159 of 2012 gives biological fathers more rights to establish parentage when a child is conceived or born during a marriage. It may remedy some biological father's plights--for example, those of Daniel Quinn of Hartland Township who says he has been prevented him from seeing his daughter for the past four years. The new Act is titled "the Revocation of Paternity Act." It permits a biological father to establish paternity of a child born or conceived during a marriage provided certain specific circumstances exist. In fact, although generally, it only allows paternity to be established if it is done during the first three years of a child's life, there is a savings clause that would permit the filing of an action if it is done within one year of the enactment of the legislation--in other words, not later than June 12, 2013.

Revisions to UCCJEA and Uniform Deployed Parents Custody and Visitation Act Proposed

Thanks to Ron Nelson, Esq. of Lenexa, Kansas for this information. Ron is well-known as an expert in the UCCJEA as well as a terrific family lawyer. Significant changes are proposed by the Uniform Laws Commission. The Annual Meeting Drafts of proposed updated/new uniform laws are now online at: http://t.co/fLEI4WZ4

Included are the Revisions to the Uniform Child Custody Jurisdiction and Enforcement Act for Implementation of the Hague Convention on Protection of Children (Jurisdiction), which is up for its "first read" and on the Uniform Deployed Parents Custody and Visitation Act, which is up for final consideration.

Michigan Supreme Court: Leon Walker Headed for Trial on Hacking Charges

The Michigan Supreme Court won't intervene in an Oakland County case of a man charged with getting access to his estranged wife's email. Leon Walker was charged with a computer crime after his then-wife accused him of going through her email after he suspected infidelity.

In an order last week, the Supreme Court said it wouldn't step in before Walker's trial. Justice Marilyn Kelly wanted to hear the appeal, saying she doubts the hacking law was aimed at a case such as Walker's.

Justices Robert Young Jr. and Stephen Markman urged lawmakers to revisit the hacking law. They say it seems to cover an "extremely broad range of conduct."

You may read the supreme court's opinion here.

Fault-based Divorce London-style | Seriously: It's About the Tuna Casserole?

Recently Justice Matthew Thorpe, commented about accusations of fault that have come before him in divorce petitions to support allegations required as grounds for a divorce in England. Justice Thorpe said that there would have be no need for the painful allegations and investigations if the government had enacted past proposals to allow no-fault divorce. The current system, said the judge, "seem to represent the social values of a bygone age.”

Under current English law, there are only five grounds for divorce, including adultery and abandonment. Grounds for divorce alleged in about half of the cases now filed fall into a general allegation of "unreasonable behavior." In this category, one party has to accuse the other of acting so unreasonably that living together has become intolerable.

Step by Step Guide for using the Hague Service Convention

Today's guest author is Pamela Brown, a legal services lawyer in Texas. Many lawyers are asking recently about how to serve process on someone who resides outside of the United States. Ms. Brown has some practical and valuable advice. She says:

Last year, I prepared and disseminated an elaborate step by step guide as to how to properly and practically serve a defendant/respondent residing in Mexico via the Hague Service Convention ("HSC"). I noted then that while the Convention itself provided a rather streamlined process for accomplishing service in its signatory countries, some countries, including Mexico, had essentially disregarded parts of the treaty and required attorneys requesting service of process within their borders to jump through several hoops not contemplated by the Convention as drafted.

Well, I am happy to report that the Permanent Bureau of the Hague Conference on Private International Law was also keen to the problems associated with some its signatory countries' implementation of the treaty and has been taking some steps to remedy the situation. Fortunately, Mexico is among the countries embracing the Permanent Bureau's recommendations.

Man held in Contempt for Facebook Rant, Ordered to Apologize on Facebook

Mark Byron was angry about a domestic relations court protective order that ordered him to stay away from his wife and affected his custody of his son. So he vented on his personal Facebook page, stating:

". . . if you are an evil, vindictive woman who wants to ruin your husbands life and take your son’s father away from him completely – all you need to do is say that you're scared of your husband or domestic partner...”

When his wife learned of it, her lawyers filed a motion to have him held in contempt for violating the protective order that prevented Byron from doing anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.”

Teens and Risk of Suicide | Do You Know Where Your Children Are?

I'm so old I used to babysit for 25 cents/hour and all the Coke and potato chips I could eat. The cool thing was getting to watch TV (black and white) until all hours of the night. There was always a public service announcement that said in a dark, ominous voice: "Do you know where your children are?"

The risks to teens today must be twenty times the risk back then. A recent New York Times article pointed out that parents and friend of teens today have option to access an alert that may let them know where their children "are" today. Teens today are subject to many more stressors than teens in my youth. Depression, bullying, lack of self-esteem . . . all kinds of things are going on that make it important to stay in touch with where teens "are" -- not geographically, but emotionally.

Happy Birthday, Mom. And by the way . . .

Over 400 news sources have picked up the story published on February 17, 2012 about Mary Kantorowski. It seems that her 71-year-old son wants to evict her from her home. She has lived in the home about 59 years. On Dec. 13, 2011, his mother's 98th birthday, Peter Kantorowski had his mother served with eviction papers. He claims she'd be better off living with people her own age.

According to news sources, Mrs. Kantorowski lives in a house that her husband worked two jobs for dozens of years to build, including several additions. The house is assessed at more than $333,000 dollars.

Nag, nag, nag, nag, nag

My family law colleagues are all talking about yesterday's column in the Wall Street Journal about nagging as a source of toxin to marriage. Today's marriages are under plenty of stress given the economy, job loss and job insecurity, deployments, service members coming home from deployments. There are many sources of stress. But seriously, nagging. How is that going to help problems. What about the damage to the marriage relationship?

See Meet the Marriage Killer: It's More Common Than Adultery and Potentially As Toxic, So Why Is It So Hard to Stop Nagging? By Elizabeth Bernstein for the Wall Street Journal, January 25, 2011 

Is nagging a problem in your relationship? Ms. Bernstein has some tips for both partners to help curb it.  Death by a Thousand Reminders

Leon Walker Case: Unauthorized Access of Email is a Felony

On December 27, in an unpublished decision, 2011 the Michigan Court of Appeals decided a case involving Leon Walker's unauthorized access of his wife Clara Walker's password-protected email account. Leon Walker does (or did) work for the Oakland County Information Technology Department maintaining and setting up computers. Following the preliminary hearing, the district court bound Leon over on two charges, one a violation of MCL 752.795, which prohibits fraudulent access to computers, computer systems, computer programs, and computer networks.
The district court found that Clara did not share her computer password with defendant, and defendant did not ask Clara for her information. The trial court said: “Gmail allows a user to create a password which creates an expectation of privacy and creates security for the user. It’s the user that decides who can have access to the information inside of the computer account, which in this case is like a vault.”

Facebook | Divorce & Total Recall

Well, Jane Smith, filing for divorce and asking for primary custody—you think you can avoid some of the stupid things you posted on Facebook a year ago? You think it might never see the light of day—those comments about how drunk you got—where you were, with whom, doing what? Guess again! And think about how Facebook will supplement your resume’ as you begin job-hunting. [See this blog article on Lexis-Nexis' use of Facebook in making decisions about whom to hire.]

Last Thursday (December 8, 2011), Facebook began updating Facebook accounts with a new and revamped profile feature called Timeline. Timeline allows a person with access to the account to see a user’s entire history of photos, links and other things shared on Facebook accessible with a single click. 800 million members of Facebook are about to see just how many digital fingerprints they have been leaving on the site — and on the Internet in general. This will make it more difficult to erase past identities, past comments, past bad behavior memorialized in a moment of sheer stupidity.

Change for a Dollar | Making a Difference

In these difficult economic times, families are under a tremendous amount of stress, much of it caused by unemployment, necessary relocations, divorce and all of the financial issues that arise in those situations. It's nearly the holiday season. Family lawyers see these issues on a daily basis.

Here's another look at the issues -- sort of a "Gift of the Magi" kind of story. It's very moving. I hope you will find the time to view it.

401k: Get a Spousal Waiver If Your New Spouse is not Intended to Inherit

Second and third marriages are common these days. Sometimes parties protect their premarital assets with a prenuptial agreement to provide for distribution of their separate assets to children of a prior marriage. But sometimes, despite best intentions, a desire to make one's children the beneficiaries of  the proceeds of a 401k retirement plan by naming them as beneficiaries can lead to an unintended result and the surviving spouse will get the proceeds when the Participant dies. The reason is that the beneficiary form is trumped by federal ERISA rules. Under ERISA, to avoid distribution of a retirement plan to a surviving spouse, in addition to naming his children as the beneficiaries, the Participant must obtain a written waiver of rights from the new spouse and file that with the Plan Administrator.

Impact of Social Media on a Divorce Case

Tomorrow, September 13, 2011, the ABA Litigation Section is sponsoring a Webinar about use of social media in divorce cases. From the promotional material? “More and more, divorce attorneys are using social media to dig up dirt on their clients, even before hiring a private investigator.  Are you familiar enough with social media to represent your client best?”

This program will provide not only a general overview of the use of social media in a divorce case, but will also highlight:

•     current case law trends regarding gathering evidence through the use of social media;
•     evidentiary burdens; and
•     the forensic components behind social media.

ABA Members and non-members may register. In fact, if you cannot attend tomorrow, you can order the program on a CD. For more details see:

The Impact of Social Media on a Divorce Case: Big Brother Is Watching   [A thought: It's probably not "Big Brother" watching . . . it's Husband or Wife watching.

The Two-Minus-One Pregnancy | Modern Family of Choice & Its Ethical Dilemma

Ruth Padawer has written a fascinating article, “The Two-Minus-One Pregnancy,” recently published in the New York Times Magazine section. I have to say Padawer literally took my breath away. There are so many questions; the choices are so personal. The reduction of a multiple pregnancy involves ethical, religious, social, moral, emotional and personal dilemmas. Obviously, ultimately, the choice is made by the prospective parents.

The reduction of a pregnancy from twins to a singular child, however, is a procedure only recently available. Padawer writes of young and not-so-young mothers pregnant with twins each of whom chooses, for various reasons, to have reduction in the pregnancy so that she will bear only one child. Most often, this procedure is sought after fertility treatments.

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.

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?

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.

Foreclosures | 60 Minutes Segment

The foreclosure mess is a major story. A 60 Minutes segment aired on April 3, 2011 states that as more and more American homeowners face foreclosures, the loan documents the banks are relying upon may be bogus. There are several related stories, including one about some folks who were able to avoid eviction. The 60 Minutes show can be seen online here.

An earlier post on this issue can be read here.

MERS & Foreclosure Defense | NY Times

A New York Times article explains the legal issue that forms the basis for avoidance of foreclosure by publication by MERS. In a sentence: MERS has no title to the real estate; thus MERS has no "power of sale." This is a must-read for those of you who are facing mortgage foreclosure by publication and also for family lawyers who have clients facing this issue. Read Mortgage Electronic Registration Systems (MERS) Inc., New York Times, October 14, 2010 here.

My earlier post discussing a new Michigan Court of Appeals case dealing with this issue is here. That article also contains a link to state-by-state case law around the United States where this issue has arisen to protect homeowners.

Foreclosures | Defending against Foreclosure by Publication

I've just finished The Fifth Witness, Michael Connelly's latest legal thriller, which features Mickey Haller. [You may remember him from The Lincoln Lawyer, about to be released as a movie]. In this new novel, the L.A. lawyer, who uses the back seat of his Lincoln town car as his office, has switched from criminal defense work to "foreclosure defense." The plot thickens as Haller elects to defend one of his mortgage foreclosure clients who has been charged with murder.

As the story unfolds, Mickey Haller crafts an impressive effort to interject reasonable doubt at the trial. He struggles to work in "the fifth witness." Connelly's understanding of the obscure and mysterious world of mortgage foreclosure is fascinating.

I have to confess that the fine points of the mortgage industry's much criticized practices have largely gone unnoticed by me. It is only coincidence that brings Michael Connelly's novel and me together at the same time that the Michigan Court of Appeals has decided, for publication, a case finding some mortgage foreclosure practices illegal under Michigan law for exactly the same reason that Haller's clients were able to successfully defend against foreclosure by publication.

Reverse Mortgages | Dangers Disclosed by NY Times

In these troubled economic times, many older people must find a source of money. Taking out a reverse mortgage, if there's sufficient equity in the house, may seem (or may have seemed in the past year or so) a good idea. The New York Times today explains why many elderly people are losing their homes after the death of a spouse as a result.

"HUD sets the rules for these loans and insures them as well. For years, most borrowers and lenders read HUD’s rules to mean that a borrower or the heirs would never owe more than the loan balance or the value of the property, whichever was less. This is all well and good for couples who are both on the mortgage. Even if one of them dies, the other can stay in the home and keep drawing on any remaining money from the reverse mortgage until he or she no longer lives there.

House foreclosures | Break-ins by banks?

The New York Times published an article about cases around the country involving banks sending contractors to houses when the homeowner is in default. There were some horror stories about contents being thrown away, utilities being shut off, causing food spoilage and other damage to the house. A clause in most mortgages allows banks that service the loan to enter a home and secure it if it is in default, meaning if the mortgage payment is 45 to 60 days late, and if the house has been abandoned, banks said. How many of our clients who are in financial trouble know that?

Why you want to teach your kids to talk to 911

Sometimes there are family emergencies and the only person available to call 911 is a child. Today I saw the most amazing video with a recording of a 911 call between the dispatcher and a 5-year old. "Stay calm, Dad," says little Savannah. You'll not only find this video poignant, but it may convince you to teach to your children or grandchildren how to call 911, or even do a little role-playing so they learn how to handle emergencies.

Federal judge | Celebration of boys and girls

As Jeff Goldberg wrote in The Atlantic this week, Judge Kimba Wood granted a lawyer's unusual  request in a manner that was charming and progressive. She was persuaded by a letter from a lawyer litigating a trial in her courtroom that was very unique and tongue-in-cheek, heart-on-sleeve. Bennett Epstein's daughter is expecting her first child on December 3--in the middle of trial. Mr. Epstein wrote the judge requesting that the court adjourn a trial for one day in the event that his daughter gives birth to a son, which would compel under Jewish law, a bris during daylight on the 8th day after birth. Bris, is defined in Mr. Epstein's 6th footnote, "Hebrew for 'convenant,' for 'the Convenant of Abraham,' i.e., ritual circumcision, joyous to everyone, apparently, except the baby."

To her credit, Judge Wood granted permission for Mr. Epstein to attend the bris, with the caveat that "[i]f a daughter is born, there will be a public celebration in Court, with readings celebrating girls and women."

You may read Mr. Epstein's unusual request and Judge Wood's hand-written Order here. Goldberg, Jeffrey. Judge Kimba Wood, Standing up for Women. The Atlantic, (November 19, 2010)

Tacky lawyer solicitations

Lately, on the State Bar of Michigan's Family Law Listserv, we've been discussing the practice of monitoring filings in the county clerk's office by certain lawyers who then send out a letter advising the defendant that his/her spouse has filed for divorce. Often this letter arrives prior to the time that the spouse has been served. In cases where domestic violence is a factor, this could lead to harm for the filing spouse and perhaps also for the minor children.

The consensus of opinion among the 900+ lawyers who participate in this discussion group is that it's tacky and should not be permitted. Most believe that filings should not be disclosed by the court clerk until a notice of service of process is filed.

Speaking of tacky, what do you think about this marketing technique? I personally find it offensive. Since  I don't have to scrape the bottom of the barrel to find clients, however, I don't see the lawyer involved as being a competitor. But really, how low can you go?

Families homeless in America

On September 11th, the lead story in the online New York Times focused on family homelessness. I don’t know what it’s like in other cities, other parts of the country, but here in Traverse City, Michigan every time I go to town, it seems that one more storefront is empty, one more restaurant is closed. What does that mean? People have lost their jobs. What will they lose next?

Thanks to Paula Aylward, family law attorney in Marshall, Michigan for bringing this story to my attention.

How can you make sure that your property will pass to your children?

The Michigan Court of Appeals decided an interesting case this week, for publication, that should provide a heads up for lawyers preparing what are often called "pour-over Wills" and "simple trusts" for their clients. There are some traps for the unwary, lawyers and laypersons alike. The case, In Re Estate of Leix, makes those clear.

Sometimes folks want to do what they call "simple estate planning." They may make a contract / agreement to make mutual wills. Ultimately these people intend that their mutual promise to devise real estate, bank accounts, and other property to particular people--generally their children--is carried out after the first of the couple passes away. In Re Estate of Leix points out how easy it is to defeat this plan after the death of a spouse.

Same-sex marriage | The decision in Perry v Schwartzenegger

In a fascinating Op-ed piece in the New York Times on August 12, 2010, Linda Greenberg analyzes the decision in Perry v Schwartzenegger, the recent California appellate decision overturning Proposition 8 that outlawed same-sex marriage in California.

Greenberg has this to say about the decision:

"Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails. 'Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines' until recently, he said. 'Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.' ”

Staying married, living separately | Pros & Cons

The New York Times published an interesting article today about people who opt to stay married for 25 to 40 years or longer. What’s odd about that? The article is about folks who stay married but live separately. Some continue to function as a married couple, filing joint tax returns, enjoying company perks like health care insurance, etc. Others live separate lives. Often financial reasons keep them together, particularly if one party has a debilitating disease and the other has great health care coverage.

One man quoted in the article said: “Since separating we get along better than we ever have. It’s kind of nice.” Because their children are grown and no longer live at home, he sees no reason to divorce. He said: “Why bring in a bunch of lawyers? Why create rancor when there’s nowhere to go but down?”

Survey of judges indicates unrepresented litigants are hurting their cases

The weak economy has increased the number of litigants representing themselves in foreclosures, domestic relations, consumer issues and non-foreclosure housing matters according to a survey of nearly 1,200 state trial judges around the country. Judges surveyed say the increase in self-representation has two primary serious results. The say litigants are doing a poor job presenting their cases and that they are burdening courts already hurt by cutbacks. The judges cite the most important mistakes these folks are making.

The study was conducted by the ABA Coalition for Justice. You may read a preliminary report on the survey in the ABA Journal online here: Judges Say Litigants Are Increasingly Going Pro Se—at Their Own Peril

Pilot programs for informal divorce process

According to the Detroit Free Press, two Michigan counties will try an informal divorce process. This will involve the judge meeting informally with the parties to discuss recommendations for child custody and parenting time. The two counties in this pilot program initiated by the Michigan Supreme Court are Gratiot and Clinton counties.

The Supreme Court Administrative Order describing the process may be read here.

Granholm says "No" to tax on services

Lawyers in Michigan and other businesspersons are heaving a big sigh of relief. Governor Granholm has nixed the idea of taxes on services delivered, such as legal services. You may read the report in the Detroit News here.