Michigan Military Divorce

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.

Can interest in a retirement plan be waived in judgment?

According to Robert G. Spector, the Glenn R. Watson Chair and Centennial Professor of Law at the University of Oklahoma Law Center, on February 19, 2008,the United States Supreme Court accepted cert on Kennedy v. E.I. Dupont, 497 F.3d 426 (5th Cir. 2007).  The issue that the Court will consider is limited to the issue of whether a qualified domestic relations order ("QDRO") is the only valid way a divorcing spouse can waive her right to receive her ex-husband's pension benefits under ERISA.

Postnuptial agreement | Can it save your marriage?

According to Nate Helperin, of TheStreet.com, a postnuptial agreement might save your marriage. For his theories and advice, see A Postnuptial Agreement Can Save your Marriage.

Do not, however, regard his advice as the last word in your case. His comments are generalized and not state-specific. He suggests, for example, that a postnup cannot address a waiver of alimony or spousal support. While that may be true in some states, it is certainly not true in Michigan.

For an earlier comprehensive discussion, see Will a postnup be enforced it it's not fair? posted on this Blog on December 13, 2007 and the series of earlier articles linked there.

Military families and domestic violence

On February 15, 2008 the New York Times published an article entitled "When Strains on Military Families Turn Deadly" by Lizette Alvarex and Deborah Sontag. The article details the failure of the Department of Defense's Family Advocacy Program to protect the families of military personnel from domestic violence. The stress of war has exacerbated the pressure on our military personnel and has led to terrible, often fatal, acts of domestic violence.

The question is: How can these violent acts be prevented? I urge all lawyers who have any contact with and/or are representing family members of military personnel to read this article to the end. It's not easy. The cases described in the article are horrific.

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.

Parenting time | parent with same-sex partner

I was asked today about whether a court would deny overnight parenting time to a parent who, after divorce, is involved in a same-sex relationship with a partner who resides in that parent's home.

As I've said before, every custody and parenting time case will ultimately be decided on its own facts. It is always helpful to know, however, how case law in the State where the parent resides has dealt with this issue. The only reported decision in Michigan is very old. See Irish v. Irish, 102 Mich App 75 (1980). In Irish, the trial court found that a lesbian relationship was detrimental and prohibited overnight visits of partner during parenting time. But I did find a terrific resource online that gives a good overview of how these cases have been resolved more recently.

SMILE: Midland County's online resource for parents

Midland County has developed an online booklet for separating/divorced parents. SMILE: Start Making It Livable For Everyone  This booklet has three goals:

1. to provide information to help parents better understand the effects of divorce,
2. to help parents understand the needs of their children, and
3. to promote children's healthy adjustment to divorce.

Having reviewed it, I recommend you bookmark it and refer to it frequently if you are a divorcing or divorced co-parent. Lawyers might consider sending their clients a link to it.

I give this resource an A+. My only comment is that many parents would find it more useful as a PDF brochure that could be stored on their computer's desktop. Ah . . . here's Oakland County's version of the same material in a PDF format that can be read online, printed, or downloaded to your computer.

Domestic violence | Guiding victims | Supporting survivors

I have just discovered one of the most valuable resources for domestic violence victims and survivors I’ve seen to date: “Beyond Escaping: A domestic violence booklet with additional information for survivors.” Resources and information needed by your clients dealing with domestic violence, as well as detailed instructions about how to protect themselves and their children, are contained in this 12-page, easy-to-read pamphlet.

This valuable resource was compiled by the Michigan Women’s Commission in August 2005. Important subjects such as:

• Personal Safety Plan
• Information on child custody
• Internet safety with comprehensive instructions on how to safeguard your online accounts and information
• Stalking
• How to obtain a personal protection order
• How to obtain a lawyer

You can view, print, or download a copy of this 12-page document here. Distribute it to clients with domestic violence issues to assist them in assessing and managing their legal and personal safety issues.

Mediation | Costs, controlling costs

Family lawyers on the State Bar of Michigan Family Law Listserv (a discussion group) have been discussing mediation this past week. Some lawyers think it's unfair to be billed by a mediator when a mediation is cancelled or rescheduled. Others think it's not fair to be billed for "administrative tasks." I admit that I objected when a GAL agreed upon by the parties billed $150/hour for sending a form letter to the parties. I'd feel the same way if I were billed $150/hour for the sending of a mediator's notice of mediation.

James J. Harrington III of Novi, www.jjharringtonlaw.com, an outstanding Michigan family lawyer, had some valuable thoughts that he agreed to let me share with you. I concur with his analysis.

Should step-siblings be kept together?

I have been frustrated in the past when a trial court has refused to place any weight on the benefits of keeping step-siblings together. Granted, while courts normally put a lot of weight on keeping siblings together, I've sometimes seen families where that was not an appropriate thing to do. Today, divorcing families not uncommonly involve step-siblings.

The results in any family law case will depend upon the specific facts of the case. Thus, often counsel my clients to read some of the cases that are similar (or different) from theirs so that they can see how the trial court will likely decide their cases. I find that my clients are happier when they have realistic expectations so that they can make informed decisions that do not lead to disappointment. Knowledge is empowering to them. Thus, a recent case piqued my interest. It will likely be shared some clients to give them hope or to help them develop expectations that are reasonable.