Tuesday, April 1, 2014

Divorce: There's An App For That Too

Were here at the electronic divorce attorney are not big fans of digitizing personal therapy in an app.  Or the divorce process for that matter.

Today's Freep touted the article Digital Divorce, profiling some nifty digital cell phone apps targeting couples going through a divorce.  Ever since a 20-something Minnesota lawyer created a cell phone app 5-years ago that calculates a parent's child support obligation, we've been seeing this kind of thing in droves.

The Freep's Katie Humphrey notes that there are hundreds of divorce-related apps; some of them even aid spouses with cheating hearts.  Go figure.

But just because its now available in an app, does not make the divorce process any easier.  Family law attorneys across Oakland County warn against substituting experience and professional skills with a self-help app designed by a techie with some minimal knowledge of divorce and family law issues.

Given the complexity of relationships and the divorce process, Ms. Humphrey rightly advises caution when relying on an apps for advice and information.  We also agree that most of the divorce-related apps, all with few reviews to offer market insight, are really just digital snake oil.

One of the apps featured in Humphrey's article, "The Grass is Greener" does seem to hold some value.  It is basically a marriage assessment tool, complete with a 39-question quiz spouses take to gain insight into the type of professionals they may need to hire in order to either: a) save their marriage, or; b) navigate the divorce process.

On balance, however, we are not worried that our lawyers will be replaced by apps anytime soon; no sooner than family court judges will be replaced by robots.

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Monday, March 31, 2014

Stepparent Adoption Complicated by Legal Custody Label


About one year ago, the Michigan Court of Appeals recently gave us one more reason to care about legal custody when negotiating a divorce with minor children.  During the divorce process it is often difficult for those involved to consider the future and a possible remarriage down the road. 

If we are lucky, cupid strikes again, resulting in a second or third nuptials. Sometimes these marriages result in the progression toward stepparent adoption of their spouses’ children.  

The lesson learned by this recent Court of Appeals case, In re: AJR, Minor, is that an award of joint legal custody in a divorce judgment may result in a more complicated legal process down the road in the event that a stepparent wishes to adopt the child of their spouse.

In this case from Kent County Circuit Court, a father’s parental rights were terminated under the stepparent adoption statute [MCL710.51(6)] on the basis that father had failed to comply with a child support order and had neglected to visit his child during the previous two years. 

The Michigan Court of Appeals reversed the family court’s decision by determining that the stepparent adoption statute does not apply when the parents have joint legal custody.  It turns out that father was awarded joint legal custody of the child in the divorce judgment, thus having a say in the proposed adoption proceedings.  

Mother was awarded joint legal custody and sole physical custody, relative to the biological father. Mother then remarried and was hopeful that her new spouse could adopt her child.  The biological father refused to consent or agree to the termination of his parental rights in order to facilitate the stepparent adoption. 

When the Circuit Court granted the stepparent adoption, terminating father’s rights despite his previous award of joint legal custody, father's appeal was successful.  Our intermediate appellate court held that the statutory language of the stepparent adoption statute:
[i]s to be construed as requiring the parent initiating termination proceedings to be the only parent having custody…the rights of a parent who maintains joint legal custody are not properly terminated under [the statute].  [Emphasis and brackets supplied.]
Now, the case is being considered on further appeal by the Michigan Supreme Court; oral arguments took place last fall and a decision by the High Court could come at any moment.

The takeaway for parents who are going through a divorce with minor children is to make sure that your divorce decree addresses legal custody.  You never know what the future will bring, but it is folly to open the door for a possible parental rights termination proceeding in the event your former spouse remarries.



Sunday, March 30, 2014

Conscious Uncoupling in Los Angeles

Gwyneth Paltrow: Recently
and Consciously Uncoupled.
Among some of the more enlightened Hollywood luminaries, it's not a divorce; it is a "conscious uncoupling".  This is the term veteran actress Gwyneth Paltrow used on her website this week to announce the split with Chris Martin, her rocker-husband of more than ten years.

This, er, somewhat New Age phrase is the kinder gentler term for divorce.  Pop-psychotherapist and author Katherine Woodward Thomas takes credit for coining the phrase.  In fact, Ms. Thomas claims that she purchased the URL for this catchy term immediately upon hearing it for the first time in a discussion about a friend's divorce.

The catch phrase sounds like a synonym for "collaborative divorce"; a commonly-used phrase in the modern divorce industry.  Apparently, the idea behind a conscious uncoupling is that the parties simply agree to part ways amicably, using child-friendly low-stress tools.  Precisely the idea behind a collaborative divorce.

The collaborative divorce process involves sitting down with a psychologist or marriage counselor, a collaborative lawyer, and perhaps a financial consultant  -not necessarily at the same time-  to identify and resolve issues prior to subjecting the family to the jurisdiction of a family court with its deadlines and powers over purse and person.

On the West Coast, there are a few pop-professionals making a buck from the process.  Ms. Thomas is among them, offering a 5-week "conscious uncoupling" course on the Internet for nearly $300.  When Ms. Paltrow's announcement, and now the "conscious uncoupling" phrase, went viral, she credited her own holistic doctor rather than Ms. Thomas; a lapse pointedly noted by the psychotherapist in the interview she gave to the NYT.

A low-stress divorce, by whatever name, is a worthy goal.  But buyers should beware before spending money on a web-based course taught by someone with a track record of failed relationships.

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Friday, February 28, 2014

Senate Bill Impugns Medical Marijuana for Custodial Parents

Over the five years since Michigan's Medical Marijuana Act was passed through voter initiative in November 2008, we've had many cases in family court where a parent's medical marijuana use was raised as an issue in the case.  Generally, family court judges do not shine to pot smoking parents.

Now, the Michigan Senate has taken-up the cause with a bill introduced by Senator Rick Jones, a former Sheriff from Eaton County.  The bill, enrolled in the Judiciary Committee, gives a family court judge the power to review a parent's pot use, even when sanctioned by a properly issued medical marijuana card.

If passed, Senate Bill 736 would provide that when a judge makes a finding that a card-carrying medical marijuana patient's use of pot interferes with that parent's ability, judgment, or skill to parent her child, then the judge could order any of the following remedies:
  • Compel the patient to execute a release so the court could review the underlying medical condition on which the medical marijuana card is based, and allow the court to examine the relationship between the patient and the qualifying physician that endorsed the parent's pot use; 
  • Compel the parent to submit to an independent medical examination to determine whether the parent's continued use of medical marijuana remains necessary or whether an alternative medication would be in the "parent's best interest"; [Wow]
  • Enjoin the parent from the continued use of medical marijuana if, upon the court's review of the parent's medical records, it appears that continued use of medical marijuana is not in that parent's best interests; [also Wow]
  • Allow the parent to continue her use of medical marijuana under the "qualified physician's directive", and under the continued review of the patient/parent's medical records for the duration of the custody case, "to determine whether there is reason for concern" that the parent's continued use of medical marijuana interferes with that parent's ability, judgment, or skill to parent the child; and 
  • The ominous "catchall" of issuing, "any other order that the Court considers necessary that is otherwise within the authority of the court in the best interests of the child."
Putting a medicated parent under the microscope in family court is nothing new.  But this proposed legislation, which we here at this blog do not see passing, would drag the family court judge and the treating physician into the medical marijuana arena.

In the unlikely even that this bill passes into law, just sit back and watch the sparks fly...

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Tuesday, December 17, 2013

Family Court Judge Denies Divorce

Family Court Judge Edward Garrison
This one comes to us from Southern Florida, courtesy of our blogging friend, Jeanne Hannah.  A family court judge in Palm Beach County took a divorcing couple to task in a tersely-worded opinion, ordering the couple to remain married and refusing to grant the requested divorce.

Why? You ask.  After a two day trial in November during which both husband and wife testified as to significant unreported income, cooked business books, hidden assets, re-titling assets in other family members' names and other mutual marital misdeeds, Judge Edward Garrison wanted to jail the couple but could not, being only a family court judge and not presiding over a criminal case.

Apparently, in denying the couple's prayer for equitable relief, the good judge also sensed that he was being played.  The court assessed the joint demeanor of the couple as being indicative of an intact relationship.

Perhaps the judge sensed that the requested divorce was simply another ruse by the couple to defraud their creditors and business associates.  So Judge Garrison refused to divorce the couple, laying down a ruling believed to be the first of its kind in an American family court:
This Court is unable to impose the appropriate remedy for the parties since this is not a criminal court, but, if the appropriate agencies do not read the transcript, or if the indictments are slow in coming, perhaps the parties may remain out of jail long enough to raise their fifteen year old daughter to the age of majority.  For now, the only appropriate remedy is for them to remain married to each other.
The divorce request in the Husband's chief complaint: Denied.  The divorce requested in the Wife's counter claim: Denied.  Husband is appealing the court's decision.

This case is truly a first in the annals of American Family Law.

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Wednesday, November 27, 2013

100th Post - Thank You Readers

This is our 100th post; thanks to all our readers and to the folks that post comments to this blog. It has taken us several years to muster 100 posts here at the electronic divorce attorney. Check out the very first post from 2009.

This blog focuses on all things related to divorce, child custody, parenting time, and other family law related issues. We have attempted to impart to our readers information on the changes and currents in the family law.

The electronic divorce attorney is a companion blog to the other blogs maintained on our law firm's web site. In the upcoming months, look for regular posts from the attorneys from our law firm, Clarkston Legal, and from guest bloggers in the industry.

Again, thank you for taking the time to check out our blog. We hope you enjoy our future posts.

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Tuesday, November 26, 2013

Conservator Can File Divorce on Behalf of Ward

As a Public Administrator, I have seen this issue come up from time to time: a person deemed incompetent and in need of a professional fiduciary to manage the protected individual's affairs is married, but either the fiduciary [a conservator or guardian] or the spouse files for divorce.

The powers of a conservator were recently challenged in a separate maintenance case from Kent County.  The Michigan Court of Appeals held in the Estate of Jeff Bently -v- Ruby Bell Bently, that a conservator could file for separate maintenance and divorce.

The husband was unable to care for his own affairs and had been separated from his wife of 20-years since 2008.  After a conservator was appointed, the conservator promptly filed for separate maintenance; she could have just as easily filed for divorce.

On appeal, the wife argued that the Kent County Family Court Judge did not have the authority to order a judgment of separate maintenance because her husband lacked the capacity to consent to the proposed property division.  In affirming the family court, the Court of Appeals held that the conservatorship statute and applicable court rules provide for a conservator to file law suits and defend law suits on behalf of the protected individual, without limitation.

Based on a plain reading of these applicable statutes and court rules, the Court of Appeals held that a conservator, and presumably a guardian as well, can prosecute a divorce proceeding on behalf of the ward.

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