Michigan Military Divorce

Sean Goldman can not testify in Brazil about his preference

Apparently another battle has been won by David Goldman. Sean Goldman's maternal grandmother had filed a petition asking that the Brazilian court allow Sean to testify about where he wishes to live. Goldman's attorney, Patricia Apy, argued that 9-year-old Sean is too young to testify about his preference. 

According to a story in the July 31, 2009 Asbury story:

"Patricia Apy, Goldman's lawyer in New Jersey, has been arguing for months that the boy is in a fragile state and that because of his age and maturity level he should not be asked where he wants to live.

"She said a provision of the Hague Convention on Child Abductions that governs how nations should handle these international cases and allows children's input, is aimed at teenagers.

" 'It's not to deal with (a) 7-, 8-, 9-year-old child,' Apy said. 'Children of that age are not in a position to say.' "

See "More Hope for Goldman," Asbury Park Press [Last accessed July 31, 2009.] 

It is important to read the clarification written following this Blog submission, which may be accessed here. http://tinyurl.com/lozkag

Social workers as expert witnesses in family and child welfare cases

My guest blogger today is Daniel Pollack, MSW, JD, professor of social work at the Yeshiva University in New York, New York.  He writes:

Lawyers are increasingly calling upon social workers to serve as expert witnesses in cases involving children and families. Roles for social workers are emerging in the courtroom as social work expert witnesses in such areas as guardianship, forensic issues, child abuse and neglect, wrongful death, commitment hearings, education, family custody evaluation, child welfare, adoption, and foster care.

As society gets more specialized and complicated, the courts are using the testimony of expert witnesses (such as social work expert witness, foster care expert witness, social worker malpractice and child welfare worker malpractice) to help resolve cases. Whether defending social workers or agencies, or litigating on behalf of a client, having the right experienced expert witness can make the difference between winning or losing an important case.

Prenuptial agreement voided because of fault

In an unpublished decision, the Michigan court of appeals voided a prenuptial agreement based upon findings that Husband had subjected Wife to years of mental and physical abuse. Hutchison v Hutchison, Docket No. 284259 [Muskegon County, July 28, 2009]

The trial court held that the prenup could be voided because the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unconscionable, citing Reed v Reed, 265 Mich App 131, 142-143 (2005).

The court of appeals also upheld the award of alimony to Wife and the award of 55% of the marital estate. Given the highly fact-specific nature of this case and the fact that it is unpublished and therefore not binding upon other trial court's, the case lacks value as precedence.

You may read the Hutchison case here.

You may read an earlier discussion of the Reed case here. In Reed, despite a draconian result, the prenup was upheld, allowing Husband to walk away with $8 million is assets accumulated during the marriage, exceeding those awarded to WIfe by about 800%. That case was decided on the grounds that it was foreseeable that the parties would accumulate significant assets during their lengthy marriage.

Collected articles on this Blog about Prenuptial and Postnuptial Agreements may be accessed here.

Citing to electronic materials

I often cite electronic material in briefs, in Blog articles, in chapters I've been asked to write for the Institute for Continuing Legal Education and in continuing education seminar materials. The question is: How does one educating the sitting trial judge and also protecting the record on appeal, cite to an online authority? While Googling for a resource to explain the fine points of citing to a Blog article, I had many choices. One of them led me to an article on the State Bar of Michigan website: "Citation of Legal and Non-Legal Electronic Database Information." What a fine resource this is -- an excellent tool to put in my toolkit.

 Candace Elliott Person*, author of "Citation of Legal and Non-Legal Electronic Database Information", states:

Adoption of adult partner upheld by Maine Supreme Court

A decision by the Maine Supreme Court last week, in an inheritance dispute of considerable value involving a very large trust set up by one of the founders of IBM for the benefit of his descendants, the Court ruled that an adult adoption of a same-sex partner was legitimate.  The issue largely centered on whether the adoptee-partner was "a descendant" and part of the trust beneficiary class who could gain a share of the substantial trust. According to the Court, she is.

Jurisdiction in cases of military service or employment abroad

     People who are in the armed services or who are employed abroad do not lose their residency and do not lose subject matter jurisdiction in a County in Michigan and in the State of Michigan so long as they can demonstrate the requisite “intent to remain” under Michigan law.

Service persons and/or employees working abroad | residence of intent. All servicepersons must declare a legal residence to the DOD—this is the residence to which they intend to return upon leaving the service. In Michigan the rule of law is that the intent to remain citizens of Michigan is sufficient to confer subject matter jurisdiction over a divorce in a Michigan court.

Should you opt out of Friend of the Court services?

Several regular contributors to the State Bar of Michigan's online discussion group have made some acute observations about requests to opt out of Friend of the Court services. These observations are crucial for men and women who are considering such an opt out. They are also food for thought for family lawyers faced with such a request from a client:

Jeffrey Zoeller, an experienced family lawyer from Lansing, Michigan said:

I am always suspicious when a client asks me about about a request from the other parent to opt out of FOC services. That raises a red flag.

Subpoena ISPs and more

How many times in your practice do you wish that you could subpoena a telephone company, a cellular  provider, an ISP providing email and Internet service? EBay and PayPal? The list goes on. Finding the right office or person to serve can be pretty frustrating, if not downright impossible.

The ISP List in the toolbox is, therefore, a very valuable tool. You'll find contact information for those who can accept service of subpoenas for cellphone and regular phone service, for Internet service providers, credit card companies, etc.

Time to End an Asylum Limbo for Abused Women

The Washington Post published an Op-Ed piece today by Esta Soler and Karen Musalo regarding amnesty for battered women granted asylum in the United States but left in limbo with regard to immigration status.

"Rody Alvarado Peña, a victim of brutal domestic violence in her native Guatemala, sought refuge in the United States in 1995. An immigration court judge granted her asylum the next year, but almost 14 years later Rody remains in limbo. She is working in a convent in California and hoping that the Obama administration will finally resolve her case and take steps to protect women who flee their countries to escape certain death from gender-based violence.

"The administration recently sent a positive signal about these types of cases, but it needs to do much more. The plight of Alvarado Peña -- an indisputably peaceful woman at risk for deportation -- underscores both the dysfunction in our immigration system and the fact that our nation's promise of mercy and refuge is still applied erratically, even capriciously."

Read the rest of the Op-Ed piece here.

Inflation Calculator

How is inflation affecting your client? Is a reduction in support appropriate? Or should there be an increase in support? A picture is worth a thousand words and I've found a terrific way to show the Court the effect that the economy is having on a client.

Example: My client receives $250/month in spousal support under a 2003 Judgment of Divorce. The Judgment says that her spousal support is modifiable, and that it terminates upon her death or remarriage, but survives the death of the payor. Three weeks after the payor dies, a motion is filed by the estate (i.e., the greedy kids) to terminate Mom's support. A Consumer Price Index Calculator shows that it would take $293.06 in 2009 dollars to be equal the $250/month payment.

This calculator is found on the website of the United States Department of Labor, Bureau of Labor Statistics. The CPI inflation calculator uses the average Consumer Price Index for a given calendar year. This data represents changes in prices of all goods and services purchased for consumption by urban households. This index value has been calculated every year since 1913. For the current year, the latest monthly index value is used.