Making College Expenses a Priority after Divorce

According to a recent study, divorced parents contribute a significant amount less toward college for their children than parents that remain married. The study was discussed in a Washington Post article, and revealed that divorced parents spend nearly 1/3 less on college expenses than married parents. Obviously this is a huge difference and disadvantage to children of divorce. What can you do as a divorced parent to ensure that college expenses remain a priority?

First, to clarify, Michigan does not require a divorcing couple to have an agreement about college tuition or expenses. In fact, Michigan courts can only make or enforce decisions about your child until the child is 18 or graduates from high school, whichever is later. Thus, college expenses are frequently not addressed in a divorce, especially when the children of the divorcing couple are very young.

However, there are a number of things you can include in your divorce to help pay for college expenses. Of course you and your spouse will have to agree, because absent an agreement, the court will not force you to do it. Some ideas are as follows:

• You can agree as parents to equally share the college expenses incurred by your children, or share them on a percentage basis.
• You can agree to each contribute to a college fund that is held in trust for the children.
• You can formulate an agreement that has one parent paying tuition costs, while the other parent pays books, boarding, etc.

What is especially important, though, in formulating such an agreement to pay college expenses, is to define what college expenses will be paid, particularly:

• Will you pay for in-state or out-of-state tuition?
• Will you only pay if their grade point remains passing or above a certain grade?
• Will you require the student to obtain loans/grants/scholarships first?
• Is this for undergraduate only or post-graduate work?

The lesson is that if college for your children is important to you as you are divorcing, try to work out an agreement with your spouse to make it a priority. Be careful to negotiate exactly what each parent is prepared to provide, and what expectations are required. Also, you must have an attorney review such an agreement, because once it is signed, absent an agreement to change it, the agreement is binding and not subject to modification.

You can read the Washington Post article here: Divorced parents contribute less toward college

If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

Judge Tosses Out Prenup: Dodgers ownership still undecided

There is no dispute that the divorce of Frank & Jamie McCourt has been the most publicized divorce this year, particularly since the ownership of the Dodgers will ultimately be determined in the divorce.

It appears that Frank & Jamie McCourt had a prenuptial agreement drawn up, but the testimony revealed that there were different versions of this agreement—one giving the Dodgers to Frank, and one sharing the Dodgers between Frank & Jamie.  The Judge heard testimony for days about this issue, and finally made his decision.

In a 100 page opinion (and yes, that is a very LONG opinion), the Judge tossed out the prenuptial agreements.  The Judge ruled that the evidence showed that Frank & Jamie McCourt never fully agreed on any terms regarding the Dodgers, and that each has a mistaken belief about the alleged differing prenuptial agreements.  The result is that the Dodgers will not be divided pursuant to any prenuptial agreements between Frank & Jamie McCourt.

What does that mean now?  Well, the Judge will eventually have to decide who owns the Dodgers.  Frank McCourt will argue that he bought the Dodgers, that they are owned in his own name, and that the team is his own personal property.  Jamie McCourt will argue that the team was purchased during the marriage and that it is marital property, subject to a 50/50 split.

Lessons to be learned?  If you hire a lawyer to draft a prenuptial agreement—it is probably important to make sure that there is only one version.  Sounds easy, right?  I would assume so—but doesn’t seem that way for the McCourts.

You can read about the Judge’s decision here: Judge invalidates McCourt agreement, leaving Dodgers ownership in question

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

What happens if Mediation fails?

It looks like the judge will have to decide the fate of the Dodgers after all.  While Frank & Jamie McCourt are waiting for the judge’s ruling in their divorce case, they agreed to meet again with a mediator to see if they could settle their differences.

After lengthy mediation sessions, the mediator submitted a proposed divorce settlement to both Frank & Jamie McCourt, and they had until noon on Tuesday, November 30, 2010, to either accept the settlement or reject it.  Frank McCourt accepted the proposal, but Jamie rejected it.

While it is true that many divorce cases can settle during mediation, it is also true that some do not.  In Michigan, people going through a divorce will often be required to go to mediation during their case.  However, the mediator cannot force a settlement.  The mediator can only try to assist both people in coming to a mutual agreement on their issues.  If no agreement is reached, mediation is concluded and the case continues.

Sometimes this means that the case will continue to trial.  Often, though, the case will still settle privately, as a good mediator will assist each person in seeing both sides of the issue, and also assist them in understanding how their judge will see the issues.

As far as the Dodgers go, this appears to be the last chance for any type of private settlement, as both Frank and Jamie McCourt have dug in their heels.  Even though Frank accepted the mediator’s proposal, the proposal is not final unless both of them accept it.  Jamie McCourt appears to want the judge to make the final decision, and that should be expected within the next couple of months.

You can read the LA Times article here:  Jamie McCourt rejects divorce settlement proposal. 

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

Mel Gibson’s Custody Trial

Judge Gordon in Los Angeles is once again the trial judge for a celebrity couple.  He has previously decided issues of custody for Britney Spears and Kevin Federline, and is currently the trial judge in the divorce of Frank & Jamie McCourt and in that case will determine who will own the Dodgers.

Now, Judge Gordon will determine custody, parenting time and child support for the daughter of Mel Gibson and Oksana Grigorieva.  Specifically, Judge Gordon will have to decide who has custody, how much child support should be paid, how frequently each will see their daughter, and under what conditions—meaning whether or not it should be supervised.

In Michigan, the trial judges also make custody, parenting time and child support decisions.  However, the ultimate decision doesn’t go to the judge unless the parents cannot agree on those decisions.  In divorce or custody cases, the parents have many options for resolving these issues, including mediation before the case, mediation during the case, and mediation with Friend of the Court.

If the issues cannot be resolved prior to trial, then the Judge must make those decisions, always focusing on what is in the best interests of the child.  This means that the Judge must hear testimony and review evidence involving 12 factors that can be found here: Best Interests of the Child Defined.

Ultimately it is better if the parents can agree on issues of custody and parenting time since the parents will have to co-parent for years to come, and must make decisions together about their children.  If, however, an agreement is impossible, the judge will make that decision—but it will be based upon what is best for the child, not what the parents want.

You can read more about the Mel Gibson custody issue as reported by the New York Times: In Family Court, a Reckoning for Gibson’s Career

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

The Wedding’s Off—Now Who Keeps the Engagement Ring?

You are engaged to be married, and have either bought or received a beautiful (expensive) engagement ring. Unfortunately, something happens to destroy the pre-wedded bliss and the wedding is called off for good. If the marriage never happens, who gets the engagement ring?

The courts in Michigan have answered unequivocally: the person who gave the ring in anticipation of the marriage.

The definitive case on this issue is Meyer v Mitnick, 244 Mich App 697 (2001). In that case, Dr. Barry Meyer purchased a custom-designed engagement ring for his finance’ Robyn Mitnick at the cost of $19,500. Prior to the marriage, Dr. Meyer asked Ms. Mitnick to sign a prenuptial agreement, and Ms. Mitnick refused. The marriage was called off.

Ms. Mitnick refused to return the engagement ring, so Dr. Meyer sued her for its return. Dr. Meyer argued that the engagement ring was a conditional gift, given in anticipation of marriage, and since the marriage wasn’t going to happen, the gift should be returned. Ms. Mitnick argued that Dr. Meyer broke the engagement, and thus was at fault for the marriage not occurring, and that based upon fault, she should be allowed to keep the ring.

The trial court, Oakland County Circuit Court, ruled that the ring should be returned to Dr. Meyer because it is a conditional gift, and that issues of fault do not determine who keeps the ring. Ms. Mitnick appealed that decision to the Michigan Court of Appeals.

The Michigan Court of Appeals affirmed the trial court’s decision. They concluded the following:

“In sum, we hold that an engagement ring given in contemplation of marriage is an impliedly conditional gift that is a completed gift only upon marriage. If the engagement is called off, for whatever reasons, the gift is not capable of becoming a completed gift and must be returned to the donor.”

Long story short, if the marriage doesn’t happen, the ring is given back to the person that gave it in anticipation of the marriage.

Keep in mind, however, that two people can always come to a written agreement otherwise. If there is a written agreement that the person receiving the engagement ring can keep it regardless of what happens, that agreement would usually govern.

Also keep in mind that once the couple is married, the condition is fulfilled, and the engagement ring, once a conditional gift, is now an outright gift and belongs solely to the person receiving it.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Divorcing and Dreading the Holidays?

As if Divorce or Separation wasn’t hard enough—along comes Thanksgiving, Christmas and New Years. It is undisputed that those going through the tumultuous process of divorce feel increased depression and despair as the holidays approach. Most people try to manage these feelings themselves and get through the holidays without a support system. However, there is a tremendous amount of help and support for people going through a divorce, especially during the holidays.

There is a valuable website called DivorceCare, and you can click on the website here: www.DivorceCare.org. On this website, you can read articles, watch videos, sign up for daily encouragement emails, and most importantly, find a local support group for yourself, and also find a support group for your children. These groups meet weekly and are free to anyone who wants to attend. The website also has a bookstore with an incredible selection of books.

There is also a special section for people divorcing as we move toward the holidays: DivorceCare: Surviving the Holidays. This is a special Surviving the Holidays event (free) that features video instruction and group discussion on how to get through the holidays. If you attend the event, you have the opportunity to talk with other people who are going through the same issues, and also receive a free Holiday Survival Guide.

If you are going through a divorce, a separation, or are facing the holidays for the first time after a divorce, you do not have to go through these holidays alone. You also don’t have to manage feelings of depression or despair by yourself. Look through the materials on the DivorceCare website and find a group to join. There are people eager to help.

The website again is DivorceCare, and can be found at www.DivorceCare.org.

The section of DivorceCare for surviving the holidays can be found at DivorceCare: Surviving the Holidays.

If you know of someone going through a divorce or separation, please share this information with them. During this holiday season, we should try to help those who may need it.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Prenuptial Agreements on the Rise

A recent Detroit Free Press article reported that a majority of lawyers are seeing an increase in requests for prenuptial agreements and that more women are requesting prenuptial agreements prior to getting married.  Part of the reason for the increase is the fact that people are getting married at an older age, and that there are more frequent second marriages or marriages blending families together.

For couples that are anticipating marriage, it is very important to consider having a prenuptial agreement in place prior to getting married.  This is particularly important if each person has their own property, investments, retirement and savings.  A prenuptial agreement is an agreement between couples getting married on how they are going to distribute assets they bring to the marriage and assets they acquire during the marriage if the couple divorces or if one of them passes away.

Prenuptial agreements are very common when two individuals are brining significant assets of their own into the marriage, or even significant debt.  They are also common when people are marrying later in life and they have grown children they want to provide for if they were to pass away.  They are far more common than they used to be.

You can read the Detroit Free Press article here: More Women and 2^nd Timers want Prenup

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

How Child Support is Calculated

A common misunderstanding with our family law clients is how exactly child support is calculated in Michigan. Often parents believe that child support is based solely on just what they earn, and nothing more. This is not correct, as child support is based upon a number of considerations.

First, child support is often calculated by Friend of the Court and by attorneys with the help of a computer program. The following is a list of the information that is provided to that program in order for child support to be calculated:

• Number of minor children
• Tax filing status of both parents
• Tax exemptions for both parents
• Determination if either parent provides support for other children in their household
• The number of overnight stays that each parent has with each child (calculated separately)
• The amount of childcare that each parent pays, and for how many children
• The amount of health care premiums that each parent pays for the children
• The gross earnings of each parent

Obviously from the list above, one can see that child support is calculated on more than just what a parent earns.

There are also other factors that must be considered in more unique cases. Sometimes one parent is voluntarily unemployed or underemployed, and it must be determined if income should be imputed to that parent for purposes of child support. Sometimes a parent is self-employed, and the calculation of income is more difficult.

It is important to discuss the issue of child support with an experienced family law lawyer so that you can truly understand the issues in your case, how child support is calculated, and whether or not you should seek an increase or decreased based upon all of those circumstances.

If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

New Landlord/Tenant Law Provides Help for Domestic Violence Victims

Michigan Governor Granholm has just approved a new law that becomes effective immediately. This law, codified as MCL 554.601b, provides assistance to tenants who are victims of domestic violence, sexual assault or stalking.

Victims of domestic violence, sexual assault, or stalking are often in a situation where they must move immediately, whether to a shelter or another residence, because there is an immediate danger of injury, harm or potential assault. However, if that victim is a tenant in a rental residence, the victim/tenant is still responsible for rent even if they vacate. Prior to this new law, there was nothing in Michigan’s law that provided assistance or help to the victim—and the victim/tenant could be sued for rent that was not paid.

The new law, which applies to leases entered into, renewed, or renegotiated after October 20, 2010, allows a tenant, who is in reasonable apprehension of present danger to themselves or their children, submit a written notice of intent to be released from their rent payment obligation. The law dictates that the tenant must deliver to the landlord, by certified mail, a notice that they intend to be released from their rent payment and must include, with that notice, written documentation that there is a PPO, a probation or parole order, or a written police report (if it resulted in charges being filed within 14 days). There are other types of written documentation that can be provided as well, and this is explained in the new law. Upon providing the proper notice with supporting documentation, the tenant is released from the rent payment obligation on the 1st day of the second month that rent is due after notice is given. However, the release is not effective unless the tenant actually vacates.

As family law attorneys, we are seeing escalated instances of domestic violence. This law is designed to assist victims who are truly in danger so that they can better protect themselves and their families.

You can read the law itself here: MCL 554.601b

You can read a Detroit Free Press article on the new law here: New Domestic Violence Law Helps Tenants, Landlords

If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

In Custody Hearings, the Judge Cannot Just Rely on Friend of the Court’s Recommendation

In Michigan, if a parent has proven to the court that there has been a change in circumstance or proper cause to consider a change in custody, the court will generally ask Friend of the Court to make a custody recommendation. Friend of the Court will investigate and make a recommendation to the Court after a full analysis of the best interests of the child by weighing the following factors:

(1) The love, affection &other emotional ties existing between the parties involved & the child.
(2) The capacity & disposition of the parties involved to give the child love, affection &guidance and to continue the education & raising of the child in his or her religion or creed, if any.
(3) The capacity & disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(4) The length of time the child has lived in a stable, satisfactory environment &the desirability of maintaining continuity.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of the parties involved.
(7) The mental & physical health of the parties involved.
(8) The home, school & community record of the child.
(9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(10) The willingness & ability of each of the parties to facilitate & encourage a close & continuing parent-child relationship between the child & the other parent or the child and the parents.
(11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(12) Any other factor considered by the court to be relevant to a particular child custody dispute.

After analysis of these factors, the Friend of the Court will then issue a written report and recommendation that is submitted to the parents and to the Judge. The Judge will review and consider the recommendation.

However, the Judge cannot just adopt the recommendation without hearing testimony and considering evidence. This requirement was reiterated in the case of Deling v Lam, unpublished case per curiam of the Michigan Court of Appeals, issued October 7, 2010 (Docket No. 295272). In that case, the trial judge merely adopted the Friend of the Court recommendation, which radically changed the physical custody arrangement from joint physical custody to giving the father sole physical custody. The trial judge did not hear testimony or consider evidence—the judge just adopted the recommendation. The mother appealed, and the Court of Appeals reversed the trial court’s decision, stating that the trial judge improperly delegated its authority by failing to independently evaluate each of the best interest factors. The Court of Appeals reversed the trial court's decision and sent the case back to the trial court for a new custody hearing.

In issues of custody and parenting time, it is extremely important to understand not only what your rights are as a parent, but also to fully understand every step in the process.
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

Spousal Support (Alimony) is Based Upon More than Just a Difference in Income

A common misperception of people going through a divorce in Michigan is that spousal support (formerly called alimony) is based solely or mostly upon a difference in income between the spouses. While it is true that the court considers income when deciding if spousal support should be awarded—income is just 1 of 14 factors that the courts review.

In deciding whether or not spousal support should be awarded, the court must review the following factors before a decision is made, Berger v Berger, 277 Mich App 700, 726-7 (2008):

1. The past relations and conduct of both spouses
2. The length of the marriage
3. The ability of both spouses to work
4. The source and amount of property awarded to each spouse
5. The spouses’ respective ages
6. The ability of both spouses to pay spousal support
7. The present situation of each spouse
8. The needs of each spouse
9. The health of each spouse
10. The prior standard of living of the couple and whether either is responsible for the support of others
11. Contributions of the spouses respectively to joint marital property
12. A spouse’s fault in causing the divorce
13. The effect of cohabitation on the spouse’s financial status
14. General principles of equity.

There are no hard and fast rules for determining if spousal support should be awarded, how much should be awarded and for how long. Each case is reviewed independently and separately to determine the answer to these questions.

If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

Less Transition for Children not Proper Cause to Change Parenting Time

When going through a divorce in Michigan, it is extremely important to carefully agree upon a parenting time schedule with your children that will work for a long period to come. Some parents decide to share joint physical custody—meaning that both parents aim to spend as much time as they can with their children, usually resulting in half of the child’s time with one parent and half with the other.

What usually results in such an agreement is that the children rotate houses every week (one week with one parent and the next with the other parent), or the children spend some days in the week with one parent, and the other days in the week with the other parent. Obviously, the latter arrangement results in many transitions for the children, as they are rotating houses up to 3-4 times per week.

In the case of Stelman v Stelman, unpublished case per curiam of the Michigan Court of Appeals, issued August 3, 2010 (Docket No. 294105), the parents had such an agreement. The children were with their father 4 nights in the 1st and 3rd weeks of the month, and 2 nights in the 2nd and 4th weeks of the month. During the summer months, the parents took full alternating weeks. The father in Stelman sought a parenting time change, asking the court to change the parenting time to alternating weeks throughout the entire year. Under his current parenting time plan, he spent 12 overnights with his children, and his proposed would increase it slightly to 14 overnights with his children. Thus, the amount of overnights with the children would remain consistent. What the father proposed is that alternating weeks throughout the entire year would be a better plan because it would reduce the amount of transitions for the children by about half.

Oakland County Circuit Court ruled that his reason for seeking the change (reducing transitions), did not meet the threshold required for seeking a modification of parenting time. The Court of Appeals agreed. In Michigan, in order to seek a modification of parenting time, you must provide the court with evidence that there has been a change in circumstances or there is proper cause for seeking the change. Both courts were very clear that just a new proposal that reduced transitions did not meet the required evidence of change in circumstances or proper cause. The father never showed “what had changed” to make the existing parenting time schedule in need of modification. Just seeking a new arrangement to reduce transition for the children is not enough for the court to change the parenting time schedule.

If you are going through a divorce with children, it cannot be emphasized enough that you have good legal counsel to help you decide issues of custody and parenting time. Your decision becomes final and unchangeable unless there has been a change in circumstances or proper cause—this is a difficult evidentiary burden to meet. The decisions made in your divorce have long-lasting effects on you and your children—and you should be assisted by an attorney who can educate and advise you so you understand the full ramifications of your decision.

If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

Michigan Supreme Court Hears Child Support Case

The Michigan Supreme Court will hear oral arguments this afternoon, Wednesday, October 6, 2010, on the case of In re Beck, opinion per curiam of the Court of Appeals, issued March 4, 2010 (Docket No. 293138) FOR PUBLICATION.  The sole issue for the Michigan Supreme Court is whether a parent whose rights to his children have been involuntarily terminated pursuant to the Juvenile Code can be ordered to continue to pay child support.

In the Beck case, a father’s parental rights were terminated pursuant to the Juvenile Code in the Oakland County Circuit Court, meaning that they were terminated involuntarily due to abuse or neglect.  However, despite the fact that his rights were terminated, the trial court ruled that his child support obligation would continue.  The father appealed the trial court’s decision.

The Court of Appeals affirmed the trial court’s decision, and held that there was a difference between a parent’s rights and a parent’s responsibilities.  The Michigan Legislature permits a court to terminate a parent’s rights, but is silent regarding a parent’s responsibilities if rights are terminated.  The Court of Appeals ruled that children have a right to receive financial support from their parents, and this right cannot be bargained away by the parents.  Further, a parent’s responsibility or financial liability to the child has always been treated distinctly from a parent’s rights.  For example, a parent isn’t denied parenting time just because they are behind or delinquent on child support.

The Court of Appeals noted that they previously ruled in Evink v Evink, 214 Mich App 172 (1995), that a parent who voluntarily releases parental rights to the other parent is still required to pay child support.  The Court of Appeals also noted that the only situation where a parent’s child support obligation is extinguished is if the parental rights are voluntarily given up pursuant to an adoption, as the court held in Bradley v Fulgham, 200 Mich App 156 (1993).

Lastly, in Beck, the Court of Appeals reasoned that it was against public policy to extinguish a parent’s duty to pay child support when their rights have been involuntarily terminated.  This could result in parents refusing to report abuse or neglect because it would result in the removal of financial support.  It also punishes a child financially for the misdeeds of the parent.

It will be interesting to see how the Michigan Supreme Court will rule, considering that the Legislature is silent on this issue, and the Court of Appeals has ruled, in the law’s silence, that a child support obligation continues after an involuntary termination of parental rights.

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

Relocating With a Child After Divorce

In Michigan, a divorced parent must seek approval from the Court if they wish to move their child out of state. If both parents agree to the relocation, the Court generally grants it. If one parent objects to the relocation, the Court may grant the request if the parent seeking the relocation can prove by a preponderance of the evidence that the relocation is warranted after reviewing the following factors:

1) Will the change improve the quality of life for the child and parent
2) The degree to which each parent has complied with their parenting time schedule
3) The degree to which the court can modify parenting time to preserve & foster the relationship
4) The extent to which the opposing parent is motivated by financial reasons
5) Domestic violence, regardless of whether it involves the child

The Court of Appeals recently evaluated a relocation case in Davenport v Mosholder, unpublished opinion per curiam of the Court of Appeals, issued September 9, 2010 (Docket No. 295852).

In Davenport v Mosholder, a relocation request was filed by the mother who wished to move from Michigan to Georgia. The testimony revealed that the child generally resided with his parents on alternating weeks. The trial court eventually concluded that the child had an established custodial environment with both parents, but that the proposed relocation would not alter that established custodial environment. Further, the trial court indicated that while the father would have less overnights after the move, the reduction was not significant and the child would still have daily access to his father, thus maintaining the established custodial environment.

The Court of Appeals, however, disagreed with this determination, indicating that the move to Georgia would clearly alter the established custodial environment. In an interesting analysis, the Court of Appeals relied on evidence that the father had almost daily contact with his child, coached his sports, served as a scout den leader, and generally was active in the child’s life on a daily basis, despite having the child only half of the year on an overnight basis. The Court of Appeals found that daily contact via webcam when the child relocated to Georgia was not an effective substitute for the clearly established custodial environment between father and son as it existed in Michigan.

The Court of Appeals recognized that an established custodial environment can exist with a parent even if that parent does not have the majority of the overnight parenting time. The Court acknowledged that active daily involvement can be the basis for an established custodial environment.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

Jail for Dad of 23 kids: over $500,000 owed in child support

A recent Detroit Free Press article and ABC News article discussed the case of a Western Michigan dad of 23 kids who was sentenced to jail for owing over $500,000 in child support.

First, this case is obviously unique, as he has fathered over 20 children. It is also unique because of the excessive amount of overdue child support. However, prison sentences are not as uncommon as you may think.

In Michigan, child support obligations are enforced by not only the courts, but also the local prosecutors and even the attorney general’s office. For non-payment of child support, the Friend of the Court can garnish your tax refunds, suspend your drivers license, file a lien against your property, report the debt to credit agencies, garnish a private pension or retirement, and issue a bench warrant for your arrest. Additionally, in cases where the amount of support owing is excessive, the Friend of the Court can refer the case to the local prosecutor for felony charges. Felony non-support cases can result in jail sentences, as evidenced by the results of the case involving the deadbeat dad with 23 kids.

What people don’t always realize is that child support is modifiable in Michigan. The Friend of the Court will conduct an automatic review of child support every 36 months. However, if there is a substantial change in income, a parent can file a request for modification and have it reviewed, even if it hasn’t been 36 months.

The lesson is clear—if there is a substantial change in income, it is important to request modification of child support. If the person paying child support becomes delinquent, the penalties can be excessive and extreme, and, in some cases, avoidable.

You can read the Detroit Free Press article here: Man linked to 23 kids gets prison in child support case

You can read the ABC News article here: Ultra Deadbeat Dad gets 23 Months in Jail


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

What is Divorce Mediation?

The divorce trial of Dodgers’ owner Frank McCourt & his wife Jamie has taken a brief pause so that the couple and their attorneys can go through Mediation today in order to try to resolve and settle their divorce.

What exactly is Mediation?

Mediation in divorce cases is a private session between the couple, their lawyers, and a neutral Mediator, usually a lawyer who has been trained in Mediation, where they freely and openly discuss settlement of all or some of the issues in the divorce. In Michigan, everything that happens in Mediation is confidential, and offers and counter-offers exchanged in Mediation cannot be used in the Divorce trial or further proceedings. The Mediator’s role is to encourage the couple to work out their differences and come to a mutual resolution of all issues. If an agreement is reached, it is reduced to a final writing, a Divorce Judgment, and entered by the Court, thus ending the divorce.

Many divorce cases resolve in Mediation, and it is by far a less expensive alternative than a divorce trial. However, even in the middle of trial, like the McCourt’s trial, Mediation is also a tool to try to resolve issues that remain outstanding and disputed.

You can read the LA Times article here: Frank McCourt attorney's admission sets the stage for a possible settlement


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 
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The Costly Lesson of Full Disclosure to Friend of the Court

In Michigan, child support is modifiable upon change of circumstances, and in order to modify the amount of child support, you must file a motion/request with Friend of the Court. A referee in Friend of the Court then reviews each parent’s income, health care costs, child care costs, and parenting time and makes a recommendation based upon those facts. Once a recommendation is made, each parent has an opportunity to object to the recommendation, and if there is an objection filed, the matter goes to the Judge for a formal hearing.

So what happens if during the entire process one of the parents is less than forthcoming with their income information? What happens if one parent deliberately misstates their income?

The Court of Appeals recently discussed this exact situation in Keinz v Keinz, unpublished opinion per curiam of the Court of Appeals, issued September 16, 2010 (Docket No. 292781).

In Keinz v Keinz, a modification request was filed by the mother 3 years after the divorce was final. At the referee hearing, the father not only stated that his gross annual income was $41k, he produced a letter from his employer indicating the same thing. The referee made a recommendation, and the mother objected to that recommendation. Eventually a full evidentiary hearing was held by the Judge, at which time it was discovered that the father actually earned $81k annually, double the income he asserted at the referee hearing.

The father’s justification was that he was working overtime, but that due to his health, he didn’t expect to work any more overtime. However, it was discovered that at the time that he asserted that he would only earn $41k annually, he had already earned $40k and only half the year was over.

The mother asked the Court to make the father pay for her attorney fees stating that his position/defense was frivolous, which means that the father asserted a position that he knew was not true. While the trial court initially denied the mother’s request for attorney fees, the Court of Appeals determined that the father deliberately deceived the referee by offering evidence that he knew was not true. The Court of Appeals determined that the father’s position in the child support hearings was truly frivolous and because the mother ultimately prevailed with a higher child support amount (albeit after numerous court hearings), the father was responsible for paying the mother’s attorney fees.

The cost for deliberately deceiving Friend of the Court: paying for two attorneys.




If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

Re-Married... With Children

You’ve been divorced for a while now, and all of a sudden your ex remarries to someone you feel is a bad influence on the children. Or, you’ve just remarried yourself and can provide a more stable household. That should be enough to get you back into court to have the judge re-evaluate custody and parenting time, right?

Nope.

In Michigan, before the Court can consider changes in parenting time or custody, the person requesting the change must demonstrate “proper cause” or a “change in circumstances.” While instinctively one may think that a remarriage of a former spouse is a change in circumstances, the Michigan Court of Appeals decided differently in Allen v Belonga, unpublished opinion per curiam of the Court of Appeals, issued July 20, 2010 (Docket No. 295753).

Without reviewing the facts of that case in particular, what is important to note is that the Michigan Court of Appeals indicated that a parent’s remarriage is generally a “normal life change” and does not rise to the level of “change in circumstances” required under Michigan law. The Michigan Court of Apeals indicated that the evidence must show that a “material change” has occurred and that this “material change” has or will have an effect on the child.

Changes in custody and parenting time are difficult to request and the courts enforce the evidentiary standards for each particular change requested. It is extremely important, throughout your divorce, to understand that your agreement as to custody and parenting time will be binding and cannot be changed by the court at just your request. It is important to have good legal counsel through this process so you understand the long-term effects of your decisions and agreements.



If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Divorce could Dissolve the Dodgers

The divorce of Frank & Jamie McCourt has become even more heated as the couple has mutually asserted that each of them doesn’t have enough money, and bills are piling up sky high. The Judge handling their divorce has indicated that if they continue to bicker about money, he may order that the asset they are arguing about, the Dodgers, will be sold.

Can the Judge actually do that? Can the Judge order that the Dodgers be sold to the highest bidder? Absolutely!

With the downward trend of the economy, more and more couples are fighting about debt rather than assets, and most property or assets are under water and have negative equity. Sometimes even when there is property with positive equity, the debts are so overwhelming that the property has to be sold to pay off the debt.

Family Courts and Judges have the power to order what is fair and equitable, and can make decisions on how property is to be valued, divided and distributed. They can make these decisions even to the lament of Dodgers fans.

It is unlikely that the Dodgers will actually be sold because of the divorce—but not because the Court or the Judge lacks the power to order it. It was likely a serious warning from the Judge to the McCourts to stop their bickering and focus on what is truly important so that the issues can be resolved.

You can read the LA Times article here: Judge in McCourts’ divorce case talks of Dodgers Sale




If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

 

Michigan launches Pilot Program: Lawyer-Free Divorces

The Michigan Supreme Court has authorized the launch of a new pilot program in Clinton and Gratiot County for an Informal Divorce proceeding for couples divorcing who cannot afford attorneys.

Judge Michelle Rick of Clinton County Circuit Court obtained approval for the pilot program, and will launch this new program for 3 years in both Clinton and Gratiot county. The program was developed in response to a growing number of individuals who were filing for divorce without attorneys, had very simple or uncomplicated issues to resolve in their divorce, and also significantly lacked funds to hire an attorney because they had no or low income. The majority of these couples did not own any property together, they did not have any pensions or retirement accounts, nor was there any domestic violence in their relationship. The majority of these couples had children, debt, and they completely lacked the financial means to hire an attorney because they were unemployed or at the poverty level.

The Informal Divorce pilot program will be an option for couples in Clinton and Gratiot County as long as they meet the criteria, which means that they have no income or very low income, they do not have any property together, they have minor children and there is no domestic violence. The couple getting divorced can elect to proceed under this new option, which includes meeting personally with the Judge in order to work out the issues in the divorce. The parties can opt out of this program at any time, or can be removed from the program if the program does not benefit their case.

The pilot program for Lawyer-Free Divorces was implemented to address the extreme financial distress of some couples filing for divorce, so that those couples are not lost in the system because they cannot afford legal counsel. The pilot program clearly recognizes the importance of having good legal counsel while going through a divorce, especially with minor children.

The Informal Divorce pilot program is anticipated to begin in Gratiot and Clinton County around September 1, 2010.

You can read the Detroit Free Press article here: 2 Michigan Counties will Test Informal Divorces


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Should you draft your own Will?

A recent article in US News & World Report states that there is an increase of people handling their own estate planning by drafting their own Wills. There are a number of online resources to do this, and some people assume that by doing this online themselves, they will save themselves hundreds or thousands of dollars?

Is this actually a good, sound practice? Should people, with little or no knowledge of the law, draft their own Wills?

There are numerous problems that can arise when one takes on the task of drafting their own Will. First, each state’s law is different, and there are different legal terms and requirements for an authentic Will in each state. These requirements are not easily learned online. Second, if a mistake is made, or if a person drafts a Will without understanding the full effect of its language, there will be thousands of dollars spent fixing it afterwards. Third, and worse, you may draft your own Will and it may legally distribute your property exactly opposite of how you intended.

We have seen numerous tragic cases where people have either drafted Wills themselves, or used online tools to draft them, and in the end, the Wills have been declared invalid, or worse yet, they have transferred assets contrary to the person’s true intention.

Don’t take the risk of drafting your own Estate plan. At Fausone Bohn, we have attorneys who will provide a free consultation, and discuss a range of choices, options, and plans. Our estate planning is often conducted on a flat-fee basis, and the rates are affordable.

Let an attorney, who is skilled in the law, help you fully think through and understand what choices you have, and let them help you pick the best options for you. It is worth the peace of mind that you will receive when you know that your estate plan is drafted exactly how you want it.

You can read the US News & World Report article here: The Dangers of DIY Estate Planning


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

The Michael Douglas Lesson About Marital Property

Michael Douglas and his ex-wife Diandra Douglas divorced in 2000, but that was not the end of their saga. Diandra Douglas recently sued Michael Douglas in a New York court, alleging that her divorce agreement entitles her to profits & residuals from his new movie: “Wall Street: Money Never Sleeps.”

Diandra Douglas contends that the divorce agreement entitles her to one-half of any profits, royalties & residuals from any movies he did during their marriage. She contends that the new movie is a spin-off from the original “Wall Street” movie, made famous by Michael Douglas’s character, Gordon Gekko: “Greed is Good.”

Michael Douglas, on the other hand, contends that she is not entitled to anything from this new venture and that it is not marital property subject to the 50/50 split.

This particular dispute is a good example of why a person needs a skilled attorney while going through a divorce. In Michigan, all property and income earned during the marriage is considered to be marital property, subject to a 50/50 split. If certain income or property is marital, whether it is received during the marriage or after the divorce, it is to be shared equally.

A skilled divorce attorney will be careful in how marital property is defined, and should counsel their client on what type of possibilities may exist that would entitled that person to a share of profits or distributions even after the marriage, provided those profits and distributions resulted from marital property.

Every situation is unique and different, and in some cases, there will be a clear and defined ending point for those types of profit distributions. However, in other cases, such as the Douglas’s case, the line is not so clear or defined.

You can read the Boston Herald article here: Michael Douglas’ ex wants ‘Wall Street’ payday


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

The Legal Separation of John & Elizabeth Edwards

A recent article on CBS News discussed the legal separation of John & Elizabeth Edwards. While they do not plan on divorcing in the near future, they are separated.

One common question that is often asked is whether or not Michigan has what is called a “legal separation,” allowing a married couple to legally separate, but still remain married.

The simple answer is yes, but the procedure is not so simple. Michigan has a legal action entitled “Separate Maintenance.” An action for “Separate Maintenance” is filed with the court just as a Divorce action is filed.

The process for a Separate Maintenance action is identical to that of a Divorce. In a Separate Maintenance action, just as in a Divorce action, the couple must decide on how they are going to distribute their assets, share their debt, determine child support & spousal support, and also address how assets are purchased and debt is acquired in the future.

At the end of a Separate Maintenance action, a Judgment of Separate Maintenance is entered with the Court, and the couple is officially legally separated, meaning that all property and debt has been divided, but the party is still legally married.

Why would a couple proceed with a Separate Maintenance action instead of a Divorce? The most common reasons are religious and medical. Some people opt for a Separate Maintenance action because divorce is frowned upon or prohibited in their religion. Some people truly need the medical insurance of their spouse and cannot obtain insurance on their own. For these people, they essentially become “divorced” but still remain married.

What happens if you go through the entire Separate Maintenance action and then decide later that you want to become divorced? You have to file a Divorce action with the court and start from the beginning again.

Separate Maintenance actions are not very common in Michigan, but it is the only legal avenue in Michigan that allows a couple to split all assets, share all debt, live independently, but still remain married. It is the only way for a couple to become legally separated.

You can read the CBS News article here: Elizabeth Edwards: No Divorce from John Planned


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

No Texting while Driving in Michigan--effective 7/1/10

Michigan has just enacted its first law against texting while driving. Effective Thursday, July 1, 2010, it is now illegal for a driver of a vehicle to read, type or send a text message from a mobile device situated in the driver’s hand or lap.

This is the first state-wide legislation enacted, and it supersedes any local laws that were previously enacted.

Effective July 1, 2010, it will be a civil infraction to text and drive, and a first offense carries a $100.00 fine. A second and all other subsequent offenses carry a $200.00 fine.

Click here to read the law itself: MCL 257.602b

Click here to read the Detroit Free Press story on the new law: Mobile texting ban nearly here


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

New York Considers "No-Fault Divorce"

A recent article in the New York Times reflects that New York is considering legislation to end the fault-based divorce system, and move to a system of “No-Fault Divorce.” What exactly does that mean?

New York is one of the states that requires “fault” to be proven in order for a divorce to be granted. This means essentially that the person filing for divorce must state specifically the reason they are seeking a divorce, and the allowable reasons are confined to adultery, cruelty, imprisonment or abandonment. The spouse filing for divorce must prove one of those reasons to the Court, or the divorce will not be granted.

Michigan has been a “No-Fault Divorce” state since 1971, when the legislature abolished the fault system for obtaining a divorce. In Michigan, the person filing for a divorce does not have to state a reason for the divorce, nor do they have to prove adultery, cruelty, imprisonment or abandonment to the Court in order to get divorced.

Essentially, in Michigan, this means that if a person wants to get divorced, the divorce will happen unless both people decide to reconcile.

Does this mean that “fault” is never discussed? Not at all. The underlying reasons leading up to the divorce, particularly “fault,” become relevant in issues of property division, spousal support (alimony), custody and parenting time. However, “fault”, in Michigan, becomes more a cursory issue, and not one that has to be proven in order to get divorced in the first place.

You can read the New York Times article here: Change to Divorce law Could Recall a TV Quiz Show: ‘To Tell the Truth’

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Al & Tipper Gore and the Silver Divorce

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A recent article in Newsweek reflected that the recent divorce announcement by Al & Tipper Gore is actually reflective of the marriage and divorce trends, and that there is a rise in what is called the “Silver Divorce,” which is a divorce between couples who have spent at least 25 married years together.

There are some significant issues that become immediately important in “Silver Divorces” when the couple has been married for a significant amount of time. This includes issues of retirement, pensions, spousal support, and even social security.

Michigan law dictates that all marital assets are to be split equally when a couple divorces. This means that if one of the spouses has an IRA, 401(k), or pension, that must be valued (determine what the marital portion is) and that marital portion must be shared equally.

Also, in long-term marriages, the courts will often grant a request of spousal support (alimony). The length of time and the amount will vary from situation to situation—but it is an important consideration and in many cases, absolutely necessary for one of the spouses.

Lastly, it is important that the issue of social security is addressed. If you have been married 10 years, then even after a divorce, one spouse may be able to collect social security based upon the other spouse’s work record. This is something that should be definitely be discussed with an attorney.

Whether or not there is a trend toward more “Silver Divorces,” what is crystal clear is that if you have been married that long, you need to be well equipped with a skilled divorce lawyer so that you are fully aware of what your rights are, what options exist for you, and how to prepare for your financial security moving forward.

You can read the Newsweek article here: The Rise of the ‘Silver Divorce’

 

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

 

What can we learn from Gary Coleman?

Lessons from Gary Coleman’s Estate

Who has the authority to make funeral and burial arrangements for the recently deceased Gary Coleman? His parents or his ex-wife who had medical power of attorney?

Neither.

A 1999 Will was recently found, and in this Will, Gary Coleman nominated his former manager, Dion Mail, as the Executor of his probate estate, which means that he, as executor, also has the authority to make funeral and burial arrangements.

People often think that if they have a power of attorney in place, or a medical power of attorney, then that person is the one who is responsible for making burial and funeral arrangements. Some people even believe that the spouse or parents have the right to do so in any circumstances.

However, it is the Executor, or the Personal Representative of the Estate that has the authority to make the funeral and burial arrangements. The Executor or Personal Representative is nominated in a person’s Will.

It is extremely important to make sure that your Will is up to date, and nominates the right person for the position of Executor or Personal Representative. It is advisable to frequently review your Will to make sure that you keep your nominations and wishes up to date.

We will never know if Gary Coleman still intended to make his former manager the person responsible for making the funeral and burial arrangements. What we do know is that he nominated him to do just that in a Will drafted in 1999. With no other revisions to that Will or new Wills, that is the decision that stands, and that is the decision the Courts will enforce.

You can read the CNN article here: Gary Coleman funeral plan 'pending' as executor takes over



If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

More Married Women are Bringing Home the Bacon

The New York Times and USA Today just reported that men are now marrying wealthier women. According to the Pew Research Center, the last 40 years have resulted in more women graduating with college degrees and an increase in women’s earnings by 44 %. What does this mean for couples either anticipating marriage or married couples contemplating divorces?

For couples that are anticipating marriage, it is very important to consider having a prenuptial agreement in place prior to getting married. This is particularly important if each person has their own property, investments, retirement and savings. A prenuptial agreement is an agreement between couples getting married on how they are going to distribute assets they bring to the marriage and assets they acquire during the marriage if the couple divorces or if one of them passes away.

For married couples anticipating divorce, the earning capacity of both people is considered in issues of child support and spousal support. With the changes in women’s income and education over the last 40 years, spousal support (formerly called alimony) is awarded very differently. Factors considered in spousal support awards include educational level, ability to work and earning capacity. Factors for child support include the earnings of both parents. Long-term and permanent spousal support is almost the exception today, and most awards are given only when the income discrepancy between the spouses is somewhat significant. Child support awards likewise are affected if both parents are working.

You can read the NY Times article here: More Men Marrying Wealthier Woman

You can read the USA Today article here: Study: Marriage Benefits Men Economically, too



If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.