Michigan Military Divorce

What Happens to Life Insurance Proceeds When an Ex-Spouse Forgets to Change the Beneficiary?

Michigan law provides that every Judgment of Divorce must contain a provision that deals with the rights of the parties to the proceeds of life insurance policies. Usually, the judgment extinguishes each party's right in insurance policies on the other party's life.

What happens, though if a party forgets to change the name of the beneficiary? Many life insurance policies are provided by employers. All employee benefits like this, including life insurance and pensions, are governed by federal law, specifically ERISA.

In a published decision on April 28, 2005, the Michigan Court of Appeals held that this was not a question of ERISA preemption, but that it was a question of waiver. In other words, while federal law might mandate that the life insurance proceeds be paid over to the former spouse, ERISA did not mandate that, once received, the proceeds could be retained by the ex-wife. Because she had waived her right to the monies in the Judgment, the Court of Appeals held that she could not keep them.

See Moore v Estate of Moore,

To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

Should the Parties' Property Settlement Agreement be Merged in the Judgment?

A question often asked and answered on the Family Law ListServ is whether or not a lawyer should merge a property settlement agreement in a Judgment of Divorce. It is important to note the distinction between settlements that are “incorporated but not merged” and those that are both incorporated and merged in the judgment. It is the legal effect of each circumstance that is important.

The legal effect if the agreement is incorporated but not merged is that the contractual aspect of the agreement is preserved, binding both parties, and the court may not alter the parties' agreement even though there may be some statutory basis to do so.

To the extent that a divorce judgment adopts a property settlement agreement (i.e., the agreement is incorporated and merged), it is a consent judgment and is as valid and binding on the parties as though made by the court without any stipulation or agreement of the parties. Then, the court retains the right to modify the judgment on any legal grounds.

In Michigan, the court of appeals has held that when the parties' agreement is not merged in the divorce judgment, the property settlement agreement may only be enforced by resort to the usual contract remedies and not as part of the divorce judgment.  See Williams v Williams (Unpublished) 1996 LEXIS 888, Docket No. 175091 Michigan Court of Appeals Decided October 8, 1996)

A more important aspect of non-merger is this: a party may be bound by the Agreement where he or she would otherwise have had a statutory right to change the agreement in the future.

What are the Rights of a Biological Father if the Mother is Married to Another Man?

This question is answered differently under Michigan law than it is under the laws of States that have enacted the Uniform Parentage Act (UPA, and States that have some judicially created exception like the ones in the UPA. In Michigan the Paternity Act and decisions of the court of Appeals and the Michigan Supreme Court deny standing to all biological fathers (not husbands) when a child is conceived or born during a marriage.

Consider the most recent Michigan case, decided February 16, 2005 (Numerick v Krull). The biological father's rights were effectively destroyed when Mom wed someone else after she and dad separated but before the child was born. If this is a sham marriage used to cut off Dad's rights, what happens when or if Mom divorces this husband? In this day and age people often move and lose touch. Bio Dad may never know if Mom moves to a state where she can divorce Dad and he can disestablish paternity. Bio Dad may never have the opportunity to parent or co-parent his child.

While it's true that these cases result from messy lives, are family lawyers supposed to turn away and ignore what might be in the best interests of a child to avoid getting our hands dirty? I don't think so.

What the UPA does with respect to children born or conceived during a marriage is really no different from the analysis we do under the Adoption Code where efforts are made to terminate a dad's parental rights so the child may be adopted. There we look at the relationship of the father to the child. Has the dad formed a substantial parent-child relationship with the child and has he provided regular and substantial support for the child?

The importance of allowing biological fathers to have standing arises from recent efforts in Michigan to enact legislation that would deal with the issue of "paternity fraud." The proposed legislation would allow a male to disestablish paternity and escape financial responsibility for a child or children born during his marriage to his wife. If we amend the Act in this piecemeal manner, then what happens to the child(ren)? They may be left without financial support and paternal guidance, often from the only father they have known.

If Husband has known that the child was not his for an extended period of time (the UPA sets a limit of 2 years) and he has not challenged it within the 2-year period, then he would not be allowed to deny paternity. It's one thing to deprive a putative father the right to establish his paternity and quite another to then turn around and deny the child the father he/she has been raised by.

Moreover, what is so different about a child having a relationship with her father AND her step-father - with alternate weekends and holidays and summer parenting, in a "normal" family (at least 50% of Michigan children live in such a family) - and a child having the same kind of relationship with a biological father?

Two cases that illustrate how the individual facts should determine whether a putative father should have standing were resolved in California and serve to illustrate what would happen under the UPA - what cannot happen under current Michigan law.

Understanding Domestic Violence and Cultural Issues:

A report in the Detroit Free Press on Sunday, April 24, 2005, cited cultural issues among women in the Asian community in southeastern Michigan – one of the fastest growing immigrant populations – as a reason why domestic violence is so rarely reported. Cultural expectations – that a woman is lucky to be married and must keep quiet about anything her husband does to her – often prevent Asian and Asian-American women from speaking openly about domestic abuse and from seeking help through mainstream channels.

Although a nationwide study of domestic violence published in 2000 by the National Institute of Justice and Centers for Disease Control and Prevention reported that domestic violence occurred with much less frequency in Asian and Asian-American families, experts now say that the statistics really represent underreporting.

The Free Press article related the story of a Korean woman – a professional – who endured 11 years of violence before she was able to escape.

There are many agencies available to help women in Asian and Asian-American families to escape and/or to prevent family violence. See, for example:

What Factors Will a Trial Court Consider if a Parent Asks to Move from the State?

In an unpublished decision, the Court of Appeals decided on April 12, 2005, that where a child’s mother proved at a de novo hearing, and the father presented no evidence to the contrary that she would lose her job if she did not accept the transfer to Tennessee, this constituted a change in circumstances sufficient to permit the trial court to revisit the prior custody order. Under the prior order, the child saw each of her parents virtually every day.

Thus, the change in circumstances, which involved a move to a distant state, necessitated a substantial change of circumstances requiring a change of custody, since it was impossible for the then-existing arrangement to continue. At the referee hearing, plaintiff mother and a personnel manager from her company testified that it was not clear that plaintiff would have to move. However, at the de novo hearing, evidence showed that the mother would be fired if she did not move and that she had exerted substantial efforts in an unsuccessful search for other employment.

A major factor in persuading the trial court to change in custody from a joint custodial arrangement to sole custody with plaintiff mother appeared to be the mother’s willingness to facilitate a close and continuing relationship with the father.

How Can I Prevent My Spouse from Obtaining a Passport for Our Child?

If a parent has sole physical custody and sole legal custody, that parent may apply for and obtain a passport for a child under the age of fourteen. Note that there is no requirement for consent of both parents to apply for a passport if a child is over the age of fourteen – regardless of whether the parents share legal custody or not.
If a parent doesn’t have sole custody, then the two-parent consent requirement will apply. The rule may be accessed at the Federal Register's website.

The law applies to first time passport applicants and renewals for regular, official and diplomatic passports, for children under 14.

Thus, in applying for a passport for a minor child, either

1) both parents must appear,
2) both parents must execute the passport application and provide evidence that they are the parents/legal guardian[s], or
3) the applying parent must provide a document showing sole custody,
4) the applying parent must bring a statement of consent from the absent parent, or
5) The applying parent must make a statement under penalty of perjury explaining why exigent or special family circumstances apply.

What Special Real Estate / Property Issues Arise in Cohabitation Relationships?

The right to partition, to get a court order compelling the sale of real estate and distribution of the net sale proceeds, is a confusing subject often misunderstood by family lawyers. Cohabiting parties frequently purchase real estate together. How that real estate is titled will make a world of difference if those parties separate. It is not uncommon for one party to move out. What happens then? You’ve heard the phrase “possession is 9/10ths of the law.”

A problem arises when the real estate is titled to them as “joint tenants with full rights of survivorship” (or similar words indicating an intention that each shall have 'survivorship rights'). Then, the partner remaining in the house decides to play rough, he or she can make life difficult for the other party, by refusing to sell the real estate and distribute the monies.

As a practice pointer, avoid titling real estate as joint tenants with survivorship rights if the parties are not married. An alternative, if survivorship rights are wanted as part of “informal estate planning” by unmarried cohabitants, be sure the couple has a solid cohabitation agreement that binds each party contractually to their agreed-upon means of distribution in the event the relationship ends prior to death of one of the parties.

We’ve had earlier discussions on the State Bar of Michigan's Family Law ListServ about this problem. The controlling case is Albro v Allen, 434 Mich 271, 274-275 (1990). For a brief, clear explanation of why partition is not available, see Ostrander v Ostrander, decided on April 12, 2005.

The rights of cohabitants have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

What Resources are Available to Help Military Families with Domestic Abuse Issues?

Michigan family law practitioners frequently are called upon to advise clients who are in the military. But how many family lawyers know about the domestic violence advocacy resources available to these clients through the Department of Defense? One such resource is the Family Advocacy Program (“FAP”), which helps family members married to employees of the DoD who are victims of domestic violence escape an abusive relationship. Counseling, rehabilitative services, and support – financial support – is available [Described more fully below]

The Department of Defense has taken a zero tolerance position on the issue of domestic abuse, saying:

"Child and spouse abuse threatens the fabric of our entire society. Concern for the welfare of Navy families and the effects of family violence on military performance prompted the establishment of the Family Advocacy Program (FAP) in 1976. Today the FAP is designed to address the prevention, identification, reporting, intervention, treatment, and follow-up of child and spouse maltreatment. Family Advocacy is a leadership issue. As part of "taking care of our own" it is the responsibility of each Navy and Marine Corps service member to ensure the safety health and well being of his/her family members. Additionally, each member is expected to exemplify Navy and Marine Corps leadership core values of honor, courage and commitment. Child and spouse abuse is unacceptable and incompatible with these high standards of professional and personal discipline."

Information I received from the Department of Defense indicates that family advocates will be looking at all forms of family violence, not just aggravated (injury-causing) physical violence. There are “degrees” of family violence; thus spousal abuse by definition at FAP includes physical violence that does not cause injury; verbal abuse; intimidation; and patterns of isolating, emotionally abusing, and/or economically controlling the victim. Threats, forced degrading behavior, and reprisals for reporting are also regarded as domestic abuse by FAP.

Can a Gay Co-parent be Ordered to Pay Child Support?

While we're on the topic of non-traditional families: I came across this reference yesterday. Isn't it about time that we welcomed a child's right to support and to continuing exercise of substantial parenting rights where they live in non-traditional families? In Indiana, second-parent adoptions are legal. There, the court of appeals ruled:

A lesbian who adopted her partner’s biological child must pay child support after the couple broke up because she is a legal parent despite the break up. Mariga v. Flint, No. 79C01-9612-AD-55 (Indiana Court of Appeals, February 16, 2005)

Are Second-parent Adoptions Legal in Michigan?

Weren’t second-parent adoptions granted in Washtenaw County a few years ago? Second parent adoptions are legal by court decision or statute in California, Connecticut, the District of Columbia, Illinois, Indiana, Massachusetts, New York, New Jersey, Pennsylvania, and Vermont Second-parent adoptions have been granted in some counties in at least 15 other states. See Schacter, Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoptions, 75 Chi.-Kent L. Rev. 933, 934 (2000). Most of the states that allow second-parent adoptions also permit joint adoptions. In four states, Colorado, Ohio, Nebraska, and Wisconsin, appellate courts have ruled that second-parent adoptions aren’t legal. [See the ABA position paper for cites, link below]

In a case discussed on April 11, 2005 on the Michigan Family Secton’s Law ListServ, the issue was whether a woman donating eggs so that her lesbian partner could bear children through artificial insemination, was a legal parent. People acting as sperm and ovum donors are allowed by a state law to avoid as a legal parent. Thus, when lesbian partners in San Francisco used the donated eggs of one partner so that the other could conceive using donated sperm, a standard ovum donor consent form was signed by one of the women. The form contains words to the effect that the person signing it waives his or her parental rights.

K.M. and E.G., in California, successfully co-parented twin girls for eight years prior to their separation. Then the birth mother claimed that she was the sole parent. Appealing a lower court decision, K.M., the non-birth parent, claimed that her signature on the form did not constitute a waiver of parental rights because she was “an intended parent” not a donor, either as defined by a statute or by the parties’ intentions.