Collaborative Divorce Software

Michelle Crosby of Wevorce

The collaborative divorce method is where a married couple, either by themselves or with the assistance of professionals, agree upon the terms of their divorce judgment prior to filing for divorce.  The theory is that, without the adversarial pressures of the family court and the "system" [i.e. Friend of the Court], these parties are free to explore and negotiate options that make sense for them, not the Court and the lawyers.

Professional assistance usually takes the form of divorce lawyers, counselors, church leaders, and now, specialized collaborative divorce software known as Wevorce.  This West Coast start-up was founded by Michelle Crosby, a product of the old-school divorce process.  Introducing her divorce tool product on the company website, Ms. Crosby tell us that her parents waged a 15-year war over her parenting time.

According to the ABA Journal, the "up-front" cost to purchase the software for a family is about $6500; many individual spouses would spend north of $5000 on divorce lawyers, each, depending on the case.

The idea behind the cloud-based software, not yet available here in Michigan, is to prompt the divorcing couple to "populate" their divorce documents with customized and customizable clauses on the usual divorce issues of child custody, support, parenting time and division of the marital estate, both assets and debts.  The philosophy embedded into the software is taken from the collaborative divorce process: discuss and negotiate prior to a formal divorce filing so that when the official pleadings are filed, it's already a "done deal", presumably with a signed settlement agreement or judgment of divorce.

While the price and the process sure is alluring, it is not for everyone.  Some couples will not be able to put their deep-seated differences aside to accommodate this software any more than they can sit through a series of marital counseling sessions.

It is nice, however, to have a collaborative model available to those couples that do not wish to spend the children's college savings on attorneys.  We shall see whether the Wevorce software ever becomes available here in Michigan.

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Medical Marijuana Parent Not Disqualified for Custody

Like with the use of any other prescription medications, a parent who uses medical marijuana is not disqualified from custody in a family court according to the Michigan Attorney General.  If the pot-medicating  parent, however, exhibits behavior that is unreasonably dangerous to a minor child, the immunity provided by the Michigan Medical Marijuana Act [MMMA] may not be available.

Attorney General Bill Schuette was asked for an advisory opinion by State Senator Rick Jones (R-Grand Ledge) on the issue of whether the MMMA can be invoked by a parent who is the subject of a child protective proceeding, and what constitutes behavior creating an unreasonable danger for a minor child.

In a well-crafted 17-page opinion, the AG zeroed-in on the specific provision of the Act dealing with pot and  children, and noting the exception to that provision.  Section 4(c) of the MMA states:

A person shall not be denied custody or visitation of a minor for acting in accordance with this Act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

As for what type of pot-related behavior constitutes the creation of such an unreasonable danger, the Act does not say.  According to the Attorney General, an individual assessment would need to take the specific circumstances of the parent and child into account.  Certainly, things like substance abuse and addiction are legitimate inquiries relative to a juvenile protective or custody proceeding.  The MMA will not provide immunity in a family court from taking such things into account.

AG Schuette opined, "the medical use of marihuana alone does not create an unreasonable danger to a child."   Schuette cautioned in the opinion, however, that if a parent's use of marijuana negatively impacts that parent's ability to properly care for a child, it could be part of the overall custody assessment.

Germane to a custody investigation is whether the parent, while high, is sufficiently functional and thus capable of parenting a minor; the child's age is an important factor; whether, once high, the parent can drive the child to safety if an emergency arises; and does the child have asthma that could be affected by second-hand marijuana smoke.

These are a few of the concerns we conjured up over here at the electronic divorce lawyer.  The best course of action, we think, is not to get high, or  take other mood altering substances, around your children.

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Sex Change Does Not Invalidate Divorce

Of course, this case comes to us from Ann Arbor.  Last month, the Court of Appeals decided a divorce case involving gender reassignment in a published decision.

In the case of In re Estate of Burnett, a couple had been married when Husband underwent gender reassignment surgery and became a woman in 2003.  His Wife, who had apparently supported the M-T-F gender change, subsequently became incapacitated.  Her children obtained a guardianship and conservatorship over their mother due to her dementia and filed for divorce on her behalf.

Doing some forum shopping, Wife's children, as her guardians, first tried to file the divorce proceeding in Pennsylvania but they were rebuffed.  Although the couple was married in Ann Arbor in the mid-1980s, they had lived in Philadelphia until Wife returned to her daughter's home in Washtenaw County back in 2006.

Defendant-Husband argued before the Washtenaw Family Court that his gender reassignment rendered the marriage invalid as between a same-sex couple; Michigan outlawed same-sex marriages in 2004 by an amendment to our constitution.  Husband also tried to get the divorce proceeding thrown-out on the grounds that a fiduciary could not file for divorce on behalf of a ward.

The family court judge denied both motions for summary disposition, ruling that the couple had entered into a valid marriage contract back in the 1980s, not a same-sex marriage contract.  The Court of Appeals upheld the decision, stating:

We likewise reject Defendant's argument that his alleged post-operative status somehow magically dissolves what was otherwise a valid marriage.

Nor did the Court of Appeals see grounds for an annulment of the Burnett marriage.  Simply, Husband, even though now a woman through surgery, is out of luck.

In the meantime, Wife has since passed away so the case now has merely symbolic and precedential value.  Even if the United States Supreme Court were to recognize same-sex marriages this spring as a component to our constitutional rights to privacy and liberty, the result in this case would be the same.  As noted by the Court of Appeals, the unilateral acts of one spouse cannot render a valid marriage invalid.

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QDRO Specialist A Necessity in Divorce Judgments

When a couple divorces with retirement assets, a special order is needed to divide those assets known as a Qualified Domestic Relations Order or QDRO.  Every employer's plan is different and has distinct and specific requirements for the QDRO.

These specifics have given rise to the cottage industry of the QDRO speacialist: a lawyer that is hired at the time of entry of the judgment of divorce for the sole purpose of drafting the QDRO.

Last month, the Michigan Court of Appeals decided Williams v Estate of Williams, a case involving a very old divorce judgment that affected the retirement benefits of a deceased Ford Motor Company employee.  The Wayne County Family Court attempted to go back over a decade into the past to correct what it perceived as a mistake in the division of the employee's pension, but the Court of Appeals reversed the trial court.

When the employee, the participant, finally retired after 39-years at Ford, the alternate payee on the plan, i.e. the ex-wife, began receiving her portion of the pension.  The ex-wife was designated as the "surviving spouse" in the QDRO, and began receiving the entire amount of the pension despite the fact she never intended on that result.

The judgment and subsequently entered QDRO awarded 100% of the decedent's pension to his ex-wife after the participant's death. If the QDRO had been drafted in accord with the default judgment, the alternate payee's share should have been the same as it was when the participant first entered into "pay status" upon his retirement.

The case is instructive on several fronts:

• The parties to a divorce should hire a specialist to draft any necessary QDROs; 
• Be sure that the language of the QDRO and the judgment of divorce are consistent; 
• If the plan administrator corresponds to the parties through the specialist, do not ignore this correspondence as it could spell doom years, even decades later; 
• Do not attempt to draft a "do-it-yourself" QDRO; and 
• Be careful not to "incorporate" the QDRO into the judgment itself because this will limit your options to correct the problem years later, which is what happened in the Williams case.

Often, when a divorce proceeding is grinding down toward a settlement, the parties take their focus off the specific language of a QDRO.  This is most often a mistake, as the division of the retirement assets is one of the most important aspects of the divorce.

Take care to follow-through with your attorney to accomplish this task.

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Divorce Judgments & International Child Abduction

Divorce lawyers will be adding additional required language to their judgments of divorce and parenting time provisions dealing with removing minor children to certain countries.

Recent Michigan legislation enacted on January 9, 2013, requires that parenting time provisions, most often found in judgments of divorce when minor children are involved and legal documents required in resolving custody disputes, must contain additional language addressing the prohibition on exercising parenting time in a country that is not in accord with the Hague Convention on the Civil Aspects of International Child Abduction.

The legislation, Public Act 600 of 2012, amends the Child Custody Act, MCL 7.22.27a, and requires the inclusion of specific proscriptions or a written consent by both parents, relative to removing the minor children to a country that has not signed the Hague Convention.   

Divorce attorneys must ensure that their judgments and parenting time documents now contain the required language.  The new required language is a simple addition and addresses a very important, and often overlooked, issue when it comes to parenting time taking place in another country.

We here at the Electronic Divorce Attorney recommend clicking on the following link to obtain more specific language about the Hague’sChild Abduction Section.  For information regarding the signatory countries to the Hague Convention on Civil Aspects of International Child Abduction, check out the State Department website.

If you are handling your divorce or custody case without a lawyer, the State Court Administrative Office (SCAO) website has updated Michigan forms (FOC 67 and FOC 89) that include the newly required language. 

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Divorce Parties

It doesn't have to be all bad.  According to an article in today's Freep, divorce parties are on the rise, thanks, of course, to the celebrities that have started throwing such events.

Take Detroit's Jack White, for example.  He celebrated his sixth wedding anniversary and his divorce to model Karen Elson.  The lesson here is that, if you can manage it, stay friendly with your ex-spouse.

Once upon a time, our law firm even considered chartering a yacht for a moonlight cruise on the Detroit River for our divorce clientele.  For a variety of reasons, it never happened.  Bet we could have filled-up the yacht though.

Then there's the web site.  Divorce Party Supply invites you to send them your crazy divorce pics to include in their [still under development] photo gallery.  I think I'll pass.

Adopting a positive attitude to cope with one of life's more negative experiences is a good thing.  Staying positive in the aftermath of divorce will get you into the next phase of your life sooner.

The trick is to learn from your mistakes and move on.  And try not to repeat the same mistake twice.

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The Intersection of Family and Criminal Law

Oscar Pistorius faces a judge at a bail hearing.

We have only to look to the recent and utterly tragic Oscar Pistorius premeditated murder case to know that sometimes our emotions get the best of us when it comes to love and romance.  While we are in no way convicting Mr. Pistorius before his day in court, it is simply a very sad reminder that domestic violence exists in more homes than anyone cares to admit.

Particularly in these trying times, the highly emotional process of divorce has a tendency to bring out the worst in the best among us.  We are all human; thus imperfect.

Divorce is unpleasant for everyone involved even on a good day.  Unfortunately, family law matters have the potential to devolve into a criminal case.

Professionals in the family law community must be vigilant in observing and recognizing signs of potential domestic abuse situations.  When signs of abuse are manifest, there is an opportunity to connect the potential victim to local resources to defuse a difficult and potentially dangerous situation.  The best results occur when an inchoate threat is avoided by proper counseling, resource sharing, and planning.

For the family law bar, it is also important to counsel clients to “keep their cool” while undergoing the tumult of a divorce.  At times clients feel like they can garner a tactical advantage by reporting a spouse’s behavior to law enforcement.  Sometimes this occurs in the heat of a custody battle; one parent thinks that repeated Child Protective Service calls will help them get an evidentiary “leg up”.

Or a spouse elects to manufacture an incident that gets reported to the local police in order to have the other parent removed from the household; buttons are pushed until a physical incident occurs.

These are not valid child custody coping mechanisms.  A good family law attorney that has her client’s best interests in mind will vigorously counsel against such tactics.  Not only do contrived allegations hurt the parties, but they waste precious resources and take the focus away from those who really need the help.  

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