In a divorce or custody case involving minor children, the parents must ultimately decide how legal custody, physical custody, and parenting time is going to be shared. Parenting time is the legal term for the specific schedule that each parent has with the children. (courts used to call this “visitation”—obviously “parenting time” is a much more preferable term). Often times the parents will agree to work together, and in those cases the issue is resolved with the order or judgment specifying “reasonable parenting time.” This avoids having to agree to a rigid and specific schedule. “Reasonable parenting time” has typically meant that the parents will work together to create and maintain a flexible schedule.
However, that is no longer the case in Wayne County Family Court. Effective this year, 2011, Wayne County has established parenting time guidelines titled “Wayne County Circuit Court Co-Parenting Plan.” Effective this year, parents that have a judgment or order that specifies “reasonable parenting time” will be bound by the court’s schedule, found here: Wayne County Circuit Court Co-Parenting Plan. Interestingly, the Co-Parenting Plan establishes parenting time plans time based upon the child’s age.
In theory, this is a good thing. The Co-Parenting Plan will give parents a schedule that is predictable and manageable. It also simplifies the negotiation process. Parents can now just agree to “reasonable parenting time” in a judgment or order, and have a schedule that they can rely on and work from.
The down side? If a parent is unaware of the Co-Parenting Plan, and agrees to “reasonable parenting time” in their order or judgment, then despite any agreement otherwise, the court will enforce the Co-Parenting Plan. If one parent asks the court to enforce parenting time, the court will hold both parents responsible for following the Co-Parenting Plan, even if they were not aware of it at the time their order or judgment was entered with the court.
An interesting note: published opinions from the Michigan Court of Appeals have held that a request for a parenting time change must be based on a change in circumstances or good cause, and also a determination that the requested change is in the best interests of the child. However, if you look at the Co-Parenting Plan closely, the parenting time schedule changes as the child grows older. The Co-Parenting Plan is based upon the notion that parenting time should change automatically as a child ages, without showing a change in circumstances or good cause. Many parents, judges and attorneys firmly believe that this should always be the case. The Michigan Court of Appeals has yet to publish an opinion supporting an automatic change based upon age. Until that happens, there will be some conflict between the established law and the implementation of the parenting time guidelines.
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.
Wendy Alton: Experienced and compassionate attorney empowering clients to creatively resolve family conflict.
Ann Arbor, Michigan | 734-673-3567 | wendy@wendyaltonlaw.com |https://wendyaltonlaw.com
Friday, April 29, 2011
Thursday, April 28, 2011
Should you Change your Name After Divorce?
A small but important question is always asked of the wife during divorce proceedings: Do you want to keep your married name, or go back to your maiden name? If the attorney fails to ask the wife this question, ultimately the Judge will ask the question at the final hearing.
In my experience as a divorce attorney, many women have a difficult time making this decision—especially if they have children from the marriage. Most women are concerned that if they go back to their maiden name, that their name will be different from their children’s’ name, and that this will cause problems. Some women, on the other hand, are concerned that if they don’t go back to their maiden name, and their soon to be ex-husband remarries, it will be too confusing altogether. Others who have established a professional reputation during their marriage are concerned that changing their name back to their maiden name will have a detrimental effect on their business. There are obviously a host of reasons that make this decision difficult.
To clarify, just having a provision in the Divorce Judgment changing a woman’s name doesn’t make the name change legal. In order to legally change your name you must take that Divorce Judgment to the Michigan Secretary of State and the Social Security Office to officially change it. So even having a provision in the Judgment of Divorce doesn’t make the name change automatic. There are further steps to take in order to make the change legal and official.
There is, however, a very significant advantage to including a name change provision in a Divorce Judgment. If this provision is in the Divorce Judgment, the woman can decide at any time to make the name change legal and official. That means that she can make the change right away, wait a while, or never change it. Having the provision in the Judgment makes it easy to change it officially.
What happens if you don’t have this type of provision in the Divorce Judgment, but want to change it later? If there is no name change provision in the Divorce Judgment, then you must file a petition with the Court for a name change, and follow all of the necessary procedures. The Michigan Courts website offers a tutorial on this process here: Name Change Self Help. It should be that there are significant costs included in a name change petition. There are filing fees, fingerprinting fees, publishing fees, and order fees. These fees will exceed $300.00. You also have to be fingerprinted, and your fingerprints must be sent to the Michigan State Police and the FBI. Both agencies must report to the Court about any pending charges or convictions. The process is time-consuming and expensive.
If in doubt, it is better to err on the side of caution and include a name change provision in your Divorce Judgment. If you decide never to change your name, it won’t hurt you. If you decide to change your name in the future, it will save you significant time and money.
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.
In my experience as a divorce attorney, many women have a difficult time making this decision—especially if they have children from the marriage. Most women are concerned that if they go back to their maiden name, that their name will be different from their children’s’ name, and that this will cause problems. Some women, on the other hand, are concerned that if they don’t go back to their maiden name, and their soon to be ex-husband remarries, it will be too confusing altogether. Others who have established a professional reputation during their marriage are concerned that changing their name back to their maiden name will have a detrimental effect on their business. There are obviously a host of reasons that make this decision difficult.
To clarify, just having a provision in the Divorce Judgment changing a woman’s name doesn’t make the name change legal. In order to legally change your name you must take that Divorce Judgment to the Michigan Secretary of State and the Social Security Office to officially change it. So even having a provision in the Judgment of Divorce doesn’t make the name change automatic. There are further steps to take in order to make the change legal and official.
There is, however, a very significant advantage to including a name change provision in a Divorce Judgment. If this provision is in the Divorce Judgment, the woman can decide at any time to make the name change legal and official. That means that she can make the change right away, wait a while, or never change it. Having the provision in the Judgment makes it easy to change it officially.
What happens if you don’t have this type of provision in the Divorce Judgment, but want to change it later? If there is no name change provision in the Divorce Judgment, then you must file a petition with the Court for a name change, and follow all of the necessary procedures. The Michigan Courts website offers a tutorial on this process here: Name Change Self Help. It should be that there are significant costs included in a name change petition. There are filing fees, fingerprinting fees, publishing fees, and order fees. These fees will exceed $300.00. You also have to be fingerprinted, and your fingerprints must be sent to the Michigan State Police and the FBI. Both agencies must report to the Court about any pending charges or convictions. The process is time-consuming and expensive.
If in doubt, it is better to err on the side of caution and include a name change provision in your Divorce Judgment. If you decide never to change your name, it won’t hurt you. If you decide to change your name in the future, it will save you significant time and money.
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.
Wednesday, April 27, 2011
Divorcing? Don't Forget the Dog
Last week, the New Zealand Herald posted a story titled “Divorced couple in court over dog custody.” While the story may have been written tongue-in-cheek, it most certainly was not a joke. We often think that custody battles involve just children. However, pets are often cherished members of the family, and how divorcing couples share time with their pets is often of primary focus and concern. It is not uncommon to hear the following: “My dog is my baby.”
Despite the close loving relationship we have with our family pets, they are considered personal property in Michigan. This means that a divorcing couple must come to an agreement on who is going to take the pets. Sometimes this is easily resolved, because in some marriages only one spouse is emotionally attached to the pet and wants it. But what happens when both people want Fido? How can you resolve that sort of situation?
In one of my former cases, we wrote a specific agreement into the Divorce Judgment regarding the dog. One person took custody of the dog, but the other person had the option of monthly visits with the dog, and was entitled to advance notice if the dog fell ill or needed to be put to sleep. The upside of this: the person who didn’t take the dog had a chance to continue visits with the dog. The downside of this: in a divorce with no children, the couple continued to be connected after divorce. (yes, for most people this is a downside).
In another of my former cases, the dog was actually awarded to the minor children, and the dog travelled back and forth with the children to mom and dad’s house. The expenses for the dog and any vet bills were to be shared equally between the mom and dad. There didn’t appear to be any downside to this type of arrangement.
While those are merely two examples of how to handle a divorce dispute about a family pet, there are dozens of potential solutions, and particularly a solution that caters to your unique situation.
Lesson to be learned? If you are going through a divorce and have a pet, be sure to tell your attorney. If your attorney doesn’t ask and you don’t let them know in advance, this can potentially hinder a successful settlement because it will be a surprise issue in the end.
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.
Despite the close loving relationship we have with our family pets, they are considered personal property in Michigan. This means that a divorcing couple must come to an agreement on who is going to take the pets. Sometimes this is easily resolved, because in some marriages only one spouse is emotionally attached to the pet and wants it. But what happens when both people want Fido? How can you resolve that sort of situation?
In one of my former cases, we wrote a specific agreement into the Divorce Judgment regarding the dog. One person took custody of the dog, but the other person had the option of monthly visits with the dog, and was entitled to advance notice if the dog fell ill or needed to be put to sleep. The upside of this: the person who didn’t take the dog had a chance to continue visits with the dog. The downside of this: in a divorce with no children, the couple continued to be connected after divorce. (yes, for most people this is a downside).
In another of my former cases, the dog was actually awarded to the minor children, and the dog travelled back and forth with the children to mom and dad’s house. The expenses for the dog and any vet bills were to be shared equally between the mom and dad. There didn’t appear to be any downside to this type of arrangement.
While those are merely two examples of how to handle a divorce dispute about a family pet, there are dozens of potential solutions, and particularly a solution that caters to your unique situation.
Lesson to be learned? If you are going through a divorce and have a pet, be sure to tell your attorney. If your attorney doesn’t ask and you don’t let them know in advance, this can potentially hinder a successful settlement because it will be a surprise issue in the end.
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.
Tuesday, April 26, 2011
How Child Support is Calculated in Michigan
It seems like one of the biggest mysteries with family law clients is how child support is actually calculated. It is a common misperception that child support is based just on the income of both parents. While income is a factor, it is not the only consideration when child support is calculated.
In Michigan, the following is a standard list of items considered to calculate child support:
1. Income. Each parent’s income is considered, which includes wages, overtime, commissions, bonuses, self-employment income, contract income, investment earnings, social security, unemployment, disability, worker’s compensation, retirement income, military pay, tips, gambling earnings, alimony (spousal support) and employment perks, just to name a few.
2. Deductions from Income. Income is reduced by deductions, including but not limited to actual taxes paid, mandatory payments withheld as a condition of employment (like union dues), life insurance premiums if the children are beneficiaries, employer contributions to pension plans, and spousal support paid to someone other than the other parent
3. Number of Children. This is the number of children of this particular marriage.
4. Second Family Adjustment. There is an allowable deduction for other biological children of each parent.
5. Tax Filing Status. It must be specified how each parent is filing taxes: single, head of household, married filing jointly, or married filing separately.
6. Tax Exemptions. Child support considers how many tax exemptions each parent has, and how many of those exemptions are for children under the age of 17.
7. Child Care. The monthly child care amount (and for how many children) must be specified for each parent.
8. Health Insurance Premiums. The monthly amount that each parent pays for health care insurance premiums is considered. (premiums only—not out of pocket expenses)
9. Parenting Time Schedule. Child Support considers the number of overnights each parent has with each child.
All of the above factors are considered, and each factor is plugged into a computer program that provides an initial child support recommendation. The courts use this computer program, and many family law attorneys (like our office) have programs that are similar to the court’s program.
While the list above sets forward the general factors used in computing child support, keep in mind that there are situations that can exist that justify a “deviation” from the recommendation. This can occur, for example, when one parent is voluntarily unemployed or underemployed, when a child has special needs, if the parent is a minor, or if a parent is incarcerated to name a few, or other situations that a court determines relevant.
Each case has its own special facts and situations that must be considered in order to properly calculate child support. Income alone is not the determining factor for how child support is calculated. If you are currently paying or receiving child support and are unclear as to how your child support was calculated, you should contact a family law attorney to have your child support reviewed and analyzed. This is one of the most frequent services that we offer our own clients.
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.
In Michigan, the following is a standard list of items considered to calculate child support:
1. Income. Each parent’s income is considered, which includes wages, overtime, commissions, bonuses, self-employment income, contract income, investment earnings, social security, unemployment, disability, worker’s compensation, retirement income, military pay, tips, gambling earnings, alimony (spousal support) and employment perks, just to name a few.
2. Deductions from Income. Income is reduced by deductions, including but not limited to actual taxes paid, mandatory payments withheld as a condition of employment (like union dues), life insurance premiums if the children are beneficiaries, employer contributions to pension plans, and spousal support paid to someone other than the other parent
3. Number of Children. This is the number of children of this particular marriage.
4. Second Family Adjustment. There is an allowable deduction for other biological children of each parent.
5. Tax Filing Status. It must be specified how each parent is filing taxes: single, head of household, married filing jointly, or married filing separately.
6. Tax Exemptions. Child support considers how many tax exemptions each parent has, and how many of those exemptions are for children under the age of 17.
7. Child Care. The monthly child care amount (and for how many children) must be specified for each parent.
8. Health Insurance Premiums. The monthly amount that each parent pays for health care insurance premiums is considered. (premiums only—not out of pocket expenses)
9. Parenting Time Schedule. Child Support considers the number of overnights each parent has with each child.
All of the above factors are considered, and each factor is plugged into a computer program that provides an initial child support recommendation. The courts use this computer program, and many family law attorneys (like our office) have programs that are similar to the court’s program.
While the list above sets forward the general factors used in computing child support, keep in mind that there are situations that can exist that justify a “deviation” from the recommendation. This can occur, for example, when one parent is voluntarily unemployed or underemployed, when a child has special needs, if the parent is a minor, or if a parent is incarcerated to name a few, or other situations that a court determines relevant.
Each case has its own special facts and situations that must be considered in order to properly calculate child support. Income alone is not the determining factor for how child support is calculated. If you are currently paying or receiving child support and are unclear as to how your child support was calculated, you should contact a family law attorney to have your child support reviewed and analyzed. This is one of the most frequent services that we offer our own clients.
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.
Monday, April 25, 2011
Legal Separation in Michigan
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.
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 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.
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.
Friday, April 22, 2011
Going Through a Divorce? Marriage Counseling Can Help
The State of North Dakota is considering a law making marriage counseling mandatory for couples who want to get divorced. This law would require couples who want to divorce to actually postpone that divorce for a year, and go through mandatory marriage counseling. The only exemption would be if t here were substantiated allegations of domestic violence in the marriage.
To understand the effectiveness of marriage counseling, even with couples who are going through a divorce, I spoke with Dr. Gail Majcher, a Northville psychologist. I also asked Dr. Gail what her thoughts were on the proposed North Dakota law.
Wendy Alton: “Dr Gail, what are your thoughts on a law that requires mandatory marriage counseling before a couple files for divorce?”
Dr. Gail: “Marriage counseling is a good idea for the majority of cases. In fact, many of my couples have already filed for divorce when they first come in. I think the downfall is that it should not be implemented for abuse cases. Sometimes abuse in a marriage is well hidden and difficult to discover.”
Wendy Alton: “Dr. Gail, how common is marriage counseling and is there any sort of success rate?”
Dr. Gail: “I have a masters degree in marriage counseling as well as a Ph.D. in clinical psychology. Over the last 30 years of my practice, marriage counseling constitutes about 30% of my cases. The marriage counseling that I conduct is intense and includes homework for the couple so the process can go faster. My success rate for married couples is at least 70%.”
As a divorce lawyer, I have to admit that the 70% success rate is surprising—but also very encouraging. So, from a professional who knows from experience, marriage counseling can absolutely save your marriage, even if you have filed for divorce.
Dr. Gail is a local Northville psychologist, and you can learn more about her on her website: www.DrGail.com. Dr. Gail also published a book called “A Worthy Woman: Victory over Domestic Violence, a True Story and Self-Help Book.” She can also be heard on WJR as the co-host of “Sunday Sessions,” a psychological edu-taining show about mental health issues.
Dr. Gail can be reached at (248) 345-5050, and her office is at 114 Rayson, Suite One D, Northville.
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.
To understand the effectiveness of marriage counseling, even with couples who are going through a divorce, I spoke with Dr. Gail Majcher, a Northville psychologist. I also asked Dr. Gail what her thoughts were on the proposed North Dakota law.
Wendy Alton: “Dr Gail, what are your thoughts on a law that requires mandatory marriage counseling before a couple files for divorce?”
Dr. Gail: “Marriage counseling is a good idea for the majority of cases. In fact, many of my couples have already filed for divorce when they first come in. I think the downfall is that it should not be implemented for abuse cases. Sometimes abuse in a marriage is well hidden and difficult to discover.”
Wendy Alton: “Dr. Gail, how common is marriage counseling and is there any sort of success rate?”
Dr. Gail: “I have a masters degree in marriage counseling as well as a Ph.D. in clinical psychology. Over the last 30 years of my practice, marriage counseling constitutes about 30% of my cases. The marriage counseling that I conduct is intense and includes homework for the couple so the process can go faster. My success rate for married couples is at least 70%.”
As a divorce lawyer, I have to admit that the 70% success rate is surprising—but also very encouraging. So, from a professional who knows from experience, marriage counseling can absolutely save your marriage, even if you have filed for divorce.
Dr. Gail is a local Northville psychologist, and you can learn more about her on her website: www.DrGail.com. Dr. Gail also published a book called “A Worthy Woman: Victory over Domestic Violence, a True Story and Self-Help Book.” She can also be heard on WJR as the co-host of “Sunday Sessions,” a psychological edu-taining show about mental health issues.
Dr. Gail can be reached at (248) 345-5050, and her office is at 114 Rayson, Suite One D, Northville.
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.
Thursday, April 21, 2011
No Common-Law Marriage in Michigan
Common law marriage is the term for a “marriage” that exists solely by agreement and by cohabitation. More simply, a common-law marriage exists when two people agree to live together to be “married.” Common-law marriage is one of the fundamental rights that has existed in this country since the first settlers.
In 1838, Michigan passed a law that stated that “marriages may be solemnized by any justice of the peace in the county in which he is chosen, and they may be solemnized throughout the state by any minister of the gospel who has been ordained.” This was the first law enacted in Michigan in order to move away from the recognition of common-law marriage. The law was formalized in order to try to require either a justice of the peace or a minister to “solemnize” a marriage.
However, the law didn’t stick. In 1877, the United States Supreme Court heard the case of Meister v Moore. This was a case about the validity of a common-law marriage between William Mowry and his wife, Mary, the daughter of a Native-American named Pero. William Mowry had cohabitated with Mary for seven years, and then passed away. They had one daughter together, and if they were actually married under Michigan law, any property William owned would eventually pass to his daughter. If William wasn’t married under Michigan law, then any property he owned would pass to his mother.
The United States Supreme Court ruled that Michigan’s law of 1838 did not require that marriages be validated by a justice of a peace or a minister, but instead stated such solemnization (authorization) was discretionary: “marriages may be solemnized.” Thus, the common-law marriage of William & Mary was valid, and their daughter would eventually inherit any land that William owned.
It appears that Michigan did not address this issue again until January 1, 1957, when it changed its law to require that marriages must result only from a marriage license. After January 1, 1957, mere consent to be married or cohabitation would not be enough. A couple wanting to marry and have their marriage recognized by Michigan law would have to apply for and receive a marriage license. After the marriage license was issued, the marriage would then have to be authorized by a judge, a mayor, a court clerk or a minister.
However, Michigan will recognize a common-law marriage that was entered into before January 1, 1957, and will also recognize a common-law marriage that was formed in another state that recognizes such common-law marriages under their law. Presently, only Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and the District of Columbia recognize common-law marriages.
Long story short, in Michigan, unless you have lived with someone with the agreement that you are married since December 31, 1956, Michigan will not acknowledge your common-law marriage. In order to be married, you must apply for a marriage license, and have your marriage solemnized or authorized by persons specified by Michigan law. This also means that in Michigan, in order to receive all the benefits that a spouse receives (health care, property, and inheritance); just living together is not enough.
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.
In 1838, Michigan passed a law that stated that “marriages may be solemnized by any justice of the peace in the county in which he is chosen, and they may be solemnized throughout the state by any minister of the gospel who has been ordained.” This was the first law enacted in Michigan in order to move away from the recognition of common-law marriage. The law was formalized in order to try to require either a justice of the peace or a minister to “solemnize” a marriage.
However, the law didn’t stick. In 1877, the United States Supreme Court heard the case of Meister v Moore. This was a case about the validity of a common-law marriage between William Mowry and his wife, Mary, the daughter of a Native-American named Pero. William Mowry had cohabitated with Mary for seven years, and then passed away. They had one daughter together, and if they were actually married under Michigan law, any property William owned would eventually pass to his daughter. If William wasn’t married under Michigan law, then any property he owned would pass to his mother.
The United States Supreme Court ruled that Michigan’s law of 1838 did not require that marriages be validated by a justice of a peace or a minister, but instead stated such solemnization (authorization) was discretionary: “marriages may be solemnized.” Thus, the common-law marriage of William & Mary was valid, and their daughter would eventually inherit any land that William owned.
It appears that Michigan did not address this issue again until January 1, 1957, when it changed its law to require that marriages must result only from a marriage license. After January 1, 1957, mere consent to be married or cohabitation would not be enough. A couple wanting to marry and have their marriage recognized by Michigan law would have to apply for and receive a marriage license. After the marriage license was issued, the marriage would then have to be authorized by a judge, a mayor, a court clerk or a minister.
However, Michigan will recognize a common-law marriage that was entered into before January 1, 1957, and will also recognize a common-law marriage that was formed in another state that recognizes such common-law marriages under their law. Presently, only Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and the District of Columbia recognize common-law marriages.
Long story short, in Michigan, unless you have lived with someone with the agreement that you are married since December 31, 1956, Michigan will not acknowledge your common-law marriage. In order to be married, you must apply for a marriage license, and have your marriage solemnized or authorized by persons specified by Michigan law. This also means that in Michigan, in order to receive all the benefits that a spouse receives (health care, property, and inheritance); just living together is not enough.
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.
Wednesday, April 20, 2011
The Wedding's Off--Now Who Keeps the Bling?
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 that question unequivocally: the person who gave the ring in anticipation of the marriage gets it back.
The definitive case on this issue in Michigan is Meyer v Mitnick, 244 Mich App 697 (2001). In that Oakland County Circuit Court divorce case, Dr. Barry Meyer purchased a custom-designed engagement ring for his finance’ Robyn Mitnick at the cost of $19,500. After he gave her the engagement ring, but prior to the marriage, Dr. Meyer asked Ms. Mitnick to sign a prenuptial agreement. Ms. Mitnick refused. What happened next? The marriage was called off.
However, Ms. Mitnick refused to return the engagement ring. So, in return, Dr. Meyer sued her to get it back. Dr. Meyer argued that the engagement ring was a conditional gift, given only in anticipation of marriage, and since the marriage wasn’t going to happen, the gift should be returned. Ms. Mitnick argued that Dr. Meyer was at fault for the marriage not happening since he broke off the marriage. She argued that based upon that 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, deciding that because the engagement ring is a conditional gift given solely in anticipation of a marriage, it must be returned to the purchaser if the marriage doesn’t happen. The trial court also decided that it didn’t matter who broke off the engagement, refusing to consider fault in determining who keeps the ring. Ms. Mitnick appealed that decision to the Michigan Court of Appeals.
The Michigan Court of Appeals sided with Dr. Meyer and upheld 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 must be given back to the person that gave it.
With that being said, 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 of marriage 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.
The definitive case on this issue in Michigan is Meyer v Mitnick, 244 Mich App 697 (2001). In that Oakland County Circuit Court divorce case, Dr. Barry Meyer purchased a custom-designed engagement ring for his finance’ Robyn Mitnick at the cost of $19,500. After he gave her the engagement ring, but prior to the marriage, Dr. Meyer asked Ms. Mitnick to sign a prenuptial agreement. Ms. Mitnick refused. What happened next? The marriage was called off.
However, Ms. Mitnick refused to return the engagement ring. So, in return, Dr. Meyer sued her to get it back. Dr. Meyer argued that the engagement ring was a conditional gift, given only in anticipation of marriage, and since the marriage wasn’t going to happen, the gift should be returned. Ms. Mitnick argued that Dr. Meyer was at fault for the marriage not happening since he broke off the marriage. She argued that based upon that 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, deciding that because the engagement ring is a conditional gift given solely in anticipation of a marriage, it must be returned to the purchaser if the marriage doesn’t happen. The trial court also decided that it didn’t matter who broke off the engagement, refusing to consider fault in determining who keeps the ring. Ms. Mitnick appealed that decision to the Michigan Court of Appeals.
The Michigan Court of Appeals sided with Dr. Meyer and upheld 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 must be given back to the person that gave it.
With that being said, 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 of marriage 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.
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