Valid Prenuptial Agreements Require Full Asset Disclosure

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts.  Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.

A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties.  This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals.

The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court.  The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.

The contract at issue in the Waller case waived the Wife's interest in a statutory share of her husband's estate in favor of the Husband's adult children.  The Wife challenged her Husband's estate at his death, despite her execution of the antenuptial agreement.

The contract was upheld by the probate court judge.  In reversing the probate court, the Court of Appeals focused on the asset disclosure and lack of evidence that any proper disclosure had been made by either party:

Accordingly, fair disclosure is required  under statute and caselaw in the context of
determining whether a prenuptial agreement can be deemed valid and enforceable.  The record
indicates that there was no formal disclosure of assets by either decedent or Waller at the time of
or before the execution of the  prenuptial agreement, such as through the presentation or
exchange of written asset lists or through a verbal communication or declaration electronically
recorded so as to preserve proof of disclosure.  The prenuptial agreement itself did not contain an itemization of assets and values,  nor did it indicate that disclosure of assets had taken place.
Indeed, there is no evidence of even an informal, off-the-cuff discussion between Waller and
decedent regarding the nature, extent, and value of each other’s assets prior to the execution of
the agreement.  The probate court essentially found that Waller was sufficiently familiar with the
assets held by decedent, making it unnecessary for decedent to redundantly disclose his assets to Waller before the agreement was signed, where  the assets had already been effectively
“disclosed” to her simply through the evolution of their relationship in which familiarity with
each other’s property naturally occurred.  We agree with the principle that if a party challenging
a prenuptial agreement was fully aware of the other party’s assets and their value at the time of
execution, an argument that there was a failure to fairly and formally disclose assets should fail;
the purpose of a disclosure is to make a party  aware of what he or she may be giving up in
signing a prenuptial agreement.

The Court of Appeals held that under such a record, the (rebuttable) presumption of non-disclosure should have been applied to invalidate the prenuptial agreement in that case.

Also, the Court of Appeals placed significance on the lack of a financial statement or schedule of assets.  These are typically attached to the antenuptial agreement.  This way, there can be no claim, as in the Waller case, of a failure to disclose, or a triggering of the presumption of nondisclosure.

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Six Holiday Tips for Divorced Parents

Often, tensions escalate over the holidays as divorced parents struggle with the demands of scheduling the children to accommodate two households.  Holiday schedules are already difficult without the complications of a divorce judgment or divorce proceeding.

Here are some practical tips in dealing with holiday parenting time gleaned from divorce lawyers around the state.

1. Reduce an alternating holiday schedule to a court order.  It is always best for the children when the parents can agree on a schedule.  Alternating holidays is most common when drafting the parenting schedule.  When both parents live close to one another, many families utilize a shared holiday model where the children spend time with one parent until noon, and the other  parent for the balance of the day; then the next year, they switch.  This works for Thanksgiving, Christmas, New Year's Day and other holidays.  
2. Discuss the schedule with the children.  One solid co-parenting tactic is for both parents, once an agreement is reached, to communicate the schedule to the children.  This way, the children know in advance what to expect.  This can best be accomplished when both parents commit to rational communication and reasonable compromise for the children's sake.
3. Keep the activities simple.  This tip is particularly essential when the children are relatively young and if the divorce is still fresh.  The wounds of the once-whole family have yet to heal; holidays are particularly painful for both children and parents.  Therefore, it makes sense to tone down the activities and avoid rushing hither and yon during your now-scheduled parenting time.
4. Let your child express her feelings to you.  It is important to allow your children the opportunity to express their feelings of loss and disappointment and for you, as the parent, to validate those feelings.  What the child once experienced as an intact family unit has been fractured by divorce.  Therefore, pretending that everything is fine, or over-scheduling a whirlwind of activities to the point of distraction, will only add to the stress of your holiday parenting time.
5. Involve your extended family.  The more love the child feels during the years immediately following a divorce, the better.  Therefore, schedule some quality family time with members of your extended family.  Certainly, this would be a great opportunity for your children to spend time with their grandparents, aunts, uncles and cousins.  If your extended family is highly dysfunctional then, er, not-so-much.  
6. Avoid including a new "significant other".  This is the last thing you want to do at the holidays; not the time or the place.  Including your "significant other" too soon is a selfish thing to do to your children.  Upon reflection, you would probably agree that you would be doing that for yourself, certainly not for your children.  Children of divorce already struggle with guilt, a sense of loss, and insecurity.  They often perceive the introduction of a stranger, especially one that is close and intimate with their parent, as a threat, not a benefit from their parents' divorce.

Of course, the above holiday parenting tips must be adjusted to be age-appropriate.  There is no one-size-fits-all approach to this touchy subject.

Finally, a positive parental attitude over the holidays does wonders for a child's comfort and confidence.  Be the adult, not the child.

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Preparing for a Second Marriage

Many factors affect whether a second marriage will last: the relative age and incomes of the partners, whether either party has children, cohabitation prior to the second nuptials, and the education level of the parties.

And, of course, how could we forget the personality of the ex-spouse; perhaps the most important factor of all.

According to statistics published by the National Institute of Health, approximately 15% of second marriages end within 3-years; and 23% end within 5-years.  Overall, however, the divorce rate for second marriages has drawn even with that of first marriages; about 40%.  Also, in its 2009 report Marital Events of Americans, the Census Bureau claims first marriages last, on average, about as long as second marriages: about 8-years.

Here are some things to think about, and some steps to consider, before tying the knot for the second time.

Prenuptial Agreement.
For those with assets, this document is a must.  To be enforceable, the prenuptial agreement largely depends on two things: a) full disclosure by both parties of all their respective assets; and b) legal representation of each party by separate lawyers.  If your partner does not want to sign such an agreement, then you should seriously consider cohabitation rather than marriage.  This is a harbinger of trouble in the event of a split.

Couples with only modest estates going into second marriages generally do not need the complication of a prenuptial agreement.  If a marital estate grows during the second marriage, that estate will be subject to an equitable property division in the event of divorce.

Solid Estate Planning.
Prior to a second marriage, assets may be transferred into a trust for the benefit of the owner's children.  Also, retirement asset rollovers (from a 401(k) plan into an IRA, for example) can operate to protect the new spouse with survivor benefits, or not, as the case may be.

A Qualified Terminable Interest Property trust (QTIP) typically provides for interest income going to a surviving (second) spouse, with the principle going to the settlor's children from her first marriage upon the death of the second spouse.

Children from a prior marriage can also be provided for using an Irrevocable Life Insurance Trust.  This way, the new spouse can be designated as the beneficiary on the person's retirement assets and the children are designated beneficiaries of the death benefit from the life insurance policy.

Another common practice is to create a separate trust to provide for the distribution of separate property to the children from the first marriages and to create a joint trust to provide for the distribution of the marital estate of the second marriage. 
Good Premarital Counseling.
One of the best things a couple can do prior to tying the second knot is to participate in joint counseling.  This should include religious counseling or premarital couples therapy, financial advice, and (separate) legal consultation.  Once separate legal counsel is received, the couple can certainly compare notes in order to get on the same page.

Going into a second marriage with your eyes open improves the chances of a successful nuptials.  When selecting an attorney to assist you with the necessary planning, find one that truly listens to your expressed wishes and pays close attention to the characteristics of your estate.

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High Income Child Support

In 1988, the federal Family Support Act required all states to enact presumptive child support "guidelines" in order to preserve federal funding on a variety of family-oriented programs.  Since then, Michigan has adopted the Michigan Child Support Formula.

In response to the Act, some states adopted support formulas that "top-out" for high earners.  Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support.  Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning families, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth.  This is particularly the case where the high income is short-lived; like with most professional athletes.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support.  Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households.  These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

But what really is in the best interests of little "Richie Rich"?  Some of life's best lessons are learned with less, not more.

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Even Divorce Lawyers Cannot Afford a Divorce Attorney

The following is a guest post from the LawDiva blog of Georgialee Lang, a Canadian lawyer turned "stay-at-home-Mom" from Vancouver, BC.  Here is her recent post:

It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.

It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”. 

The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.

However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.

In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.

As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.

Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!

But affordability is not the only reason litigants refuse to retain counsel.  There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can.  This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.

Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.

As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent.  Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.

For lawyers the problems are multiplied.  They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions.  Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.

Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.

Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly,the issue can no longer be avoided.  It has taken centre stage as a result of lawyers, judges, court administrators, law professors, lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.

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Post-Divorce Nesting

This week in Time Magazine, there is a story in the "Society" section about a mode of parenting known as, "Nesting".  This is where divorced parents each secure a residence beyond the former marital home; the couple's children remain in the marital home, to "nest".
The theory behind nesting is that it seeks to minimize the sense of upheaval that children of school age often experience during and after their parent's divorce.

Time's Belinda Luscombe speculates that the nesting mode of post-divorce parenting has emerged over the past decade as an innovative version of co-parenting.  It remains rare, however, to get both parents on the same page be able to pull it off.

In the past decade, I have completed nearly 250 divorces and only two of those featured a nesting arrangement.  Of those two cases, one of nests was destroyed, via foreclosure.

On the other hand, the difficult real estate market has forced many divorcing couples to hang onto their former marital home; like it or not.  Nesting would seem to be a viable option.  Usually, however, one of the parents "takes one for the team" and remains in the marital home, or the couple "walks away" from the home to begin their new post-divorce lives under the cloud of foreclosure.

Proponents assert that the nesting arrangement eliminates the continuous shuffling between two homes by the children that comes with a traditional parenting schedule; the parents do the shuffling in a nesting arrangement.  Also, for children of a certain age, the arrangement allows them to continue living and going to school in a familiar environment, their childhood home, while they adjust to their parents' divorce.

Most family court judges look upon nesting arrangements with a certain degree of skepticism, if not outright scorn.  In family court, however, parents are free to make whatever arrangements they desire so long as the judge can be convinced it is in best interests of the children involved in the case.

As a temporary post-divorce parenting technique between two cooperating amiable co-parents, nesting can work.  It very well may provide the minor children with a better opportunity to adjust to the strains of divorce.

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When Children Live with a Child Murderer Endorsed by the Family Court

A very worried Trisha Conlon

This bizarre family law custody case is playing out in Seattle, WA.  The unusual facts of the case bring into sharp focus the challenge of putting parents' often-questionable decisions through review by a family court judge.

In 1995 Trisha Conlon married Marine fighter pilot John Cushing, Jr.; a man with a tragic past.  His ex-wife, Kristine Cushing, shot to death their two young daughters, 4 and 8, while they slept in their Southern California home.  This was in 1991, when Mr. Cushing was on active duty in the Marine Corps and Mrs. Cushing, by all accounts, was an ideal soccer Mom.

Kristine Cushing's murder trial featured the now infamous "Prozac Defense"; she was found guilty by reason of insanity and sentenced to a mental institution where she did a nickle, followed by a decade of intensive in-patient style psychiatric treatment.  She was discharged without restriction in 2005.

Meanwhile, John Cushing tried to put the pieces of his life back together.  He married Trisha Conlon, with whom he had two sons.  Sadly yet predictably, the couple divorced in 2004.  Mr. Cushing's next "life-choice" was to re-marry his first wife, Kristine Cushing, the now-excused infanticidal murderess.

Today, Lt. Col. Cushing (retired) lives on Vashon Island, WA with a split-custody arrangement whereby one of his sons lives with him; the other lives with Ms. Conlon.  The brothers reunite during holidays and vacations.  Under this custody arrangement, Conlon eventually became aware that her ex-spouse not only re-married his first wife, but also shared a marital home with her and Conlon's son.

This information was difficult to come by as Mr. Cushing attempted to conceal his family arrangements.  The distance between the two parents provided the necessary cover.  Ms. Conlon, now living in Oregon, resorted to her family law attorney and his private investigator.

Seeking a change in custody to place her son into her home, Conlon brought proof of the Cushing reunification to the attention of the family court in King County, Washington (Seattle), arguing the arrangement was a "change in circumstance" detrimental to her son's best interests.  She lost her case last month; a hearing on appeal is set for next week.

This case is a testament to the lengths people will go in the name of love, marriage, and progenitorship. Many, perhaps most of us, would not make the same decision as the Lt. Col. in this case; infanticide is just a flat-out "deal-breaker".  On the other hand, imagine the love and forgiveness Cushing must have for his first wife to be able to take such a risk.

To the extent that his decision has placed his son in harm's path, it will be up to a family court judge of the King County Superior Court in Seattle to determine what is best for the boy under its jurisdiction.

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Divorcee Rips Ex-Spouse on His Blog

Boy, would I welcome the chance to write this appeal.

A family court judge in Bucks County, Pennsylvania has enjoined divorcee Anthony Morelli from operating his web site devoted to his ex-wife; thepsychoexwife.

Judge Diane Gibbons based her decision on grounds the Father's blog, which details his failed marriage, his tortuous divorce process, and its protracted custody battle, is harming his young children.  In fact, the blog does a hatchet job on his ex.

Morelli says the blog is a forum where he can help others "minimize conflict" and connect to share stories. He would like us to think of his blog as a kumbaya community where divorced men can rip their ex-wives with impunity.  Touching, for real.

His lawyers have appealed Judge Gibblons' injunction claiming it is an unconstitutional prior restraint in violation of Morelli's First Amendment right to free speech.

For her part, Morelli's ex-wife says their children know about the blog, which is a shame.

Since he started the blog back in 2007, it has attracted a robust readership of nearly 200,000 new followers per month.  At one point, Morelli was earning money from third-party advertisements on the blog.

We'd love to cultivate that type of readership over here at the Law Blogger; figures that such a negative energy factory would do so well.

Prior restraint of free speech, however, is a serious problem in this case.  Judges, even family court judges, cannot restrain our free speech.  A blog is one of the most common contemporary media designed to amplify freedom of expression.  If a blogger lacks taste and restraint, should a local judge act as a censor?

Judge Gibbons' injunction in the Morelli case will undoubtedly be reversed on appeal.

Do you think family court judges should be able to regulated the content of a party's speech in a high-conflict divorce proceeding?  Where would you draw the line; threats? abusive commentary?

We would like to know what you think on this issue...

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Five Red Flags that Your Divorce Attorney is on the Wrong Road

Divorce lawyers are expensive; far too expensive for what most families need in a divorce proceeding.  If you are involved in a divorce, here are some warning signs to help you determine whether you are getting your money's worth for this important service.

1.  Lack of Communication.  A breakdown in communication is the number one cause of client dissatisfaction with their divorce attorney.  If a lawyer does not return your call within a reasonable time, she is either too busy or does not care about your case.

We all know in this era of smart phones that our lawyers get our calls, emails, and text messages within minutes of pushing the send button.  Has your lawyer provided a cell phone contact; do you have access to her staff?  If not, then you are not a priority in their office.

2.  Does not know your case.  Any engaged lawyer will have several cases going at one time.  Every family is different.  But a good lawyer will be sharp enough to master the basic facts and dynamics of your family.  The next time you have a status meeting with your lawyer, listen carefully to the lawyer to determine whether he speaks in general terms; or whether he has a specific plan that applies to the facts of your case; your family.

3.  Excessive Billings.  Do you get sticker shock each month when you examine your divorce attorney's invoice?  More troubling: do you even get a monthly invoice?  Although many lawyers will have you believe that family law is "rocket science", it is not.  If you are being billed more than $250 per hour for non-court related tasks such as preparing "summaries", checklists, or budgets, you are getting fleeced.

One trick unethical lawyers employ is to bill your file at the end of the proceeding, after you cut your deal, and after they see what's available for their fees.  Often in such cases, a premium is baked into the final fee.  Get your fee agreement in writing at the beginning of the process and insist on monthly invoices.  When you receive the invoices, open them immediately as you would any other bill and examine them for accuracy.  If you do not agree with items on the invoice, call the lawyer to discuss it right away; it is more difficult to raise fee issues several months down the road.

4.  Arrogant and Antagonistic.  The "old-school" image of a classic lawyer is that she holds herself above everyone else; is smarter than everyone and not afraid to prove it over and over again.  These lawyers carry themselves with a certian touch of, er, arrogance.

In the trenches of family law, however, the real trick is to find a reasonable solution to your specific issues that works for everyone, particularly if there are young children.  Arrogance is not a trait that gets this done.  Does your lawyer show condescension toward you or does he repeatedly become antagonistic toward opposing counsel?  If so, this is a sign of weakness, not strength.  You may want to consider changing counsel.

5.  Too Many Excuses.  If your divorce lawyer lacks candor, fire him immediately.  Unless he can effectively communicate with you on time regarding your specific issues; unless she follows through and does what she says, delivering service in your case on time, you have a big problem.

We hope these tips help you identify whether you are on the right road with your divorce attorney.  After all, your life is in their hands.

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Proposed Divorce Legislation Distinguishes Marital From Separate Property

Two new bills pending in the Michigan legislature attempt to address a long-perceived problem in Michigan family law: how to classify property [separate or marital] in a divorce proceeding.  This legislative proposal has judges and divorce attorneys up in arms.

The tie-barred bills, 4672 and 4673, introduced by Livonia Republican John Walsh, propose standards for the division of marital property, and comingled marital and separate property; create a presumption of non-division for separate property; and revises the procedures by which a family court could "invade" one spouse's separate property and award it to the other spouse.

In Michigan, a family court judge's power to apportion property in a divorce comes strictly from statutes; a confusing patchwork of four separate statutes, to be precise.  Because of this legislative patchwork, a significant body of common law has developed over the past 30-years addressing the classification and division of property.

Although every divorce case is decided on its own merit, the present state of divorce law allows the distinct possibility, if sufficent and compelling factors are proven, for the invasion of separate property.  The new legislation is largely viewed as making such an invasion more difficult, if not impossible.

Birmingham divorce attorney James P. Cunningham summarized the problem in a 2008 Michigan Bar Journal article, calling for legislation to "fill the gap" between the cases.  Cunningham was on the floor of the house in Lansing last week to testify as an expert about the need for this legislation and, presumably, to endorse the content of Walsh's bills.

So why such a fuss from the family court bench and bar?  First, they contend that Walsh is fast-tracking the legislation without input from their professional organizations.  Second, these groups also assert the proposed measures are grossly unfair to the non-propertied spouse.

When cornered by a reporter at the Capitol last week, a lobbist for the bills denied they were being fast-tracked but wryly noted that the family court bar was a veritable "graveyard" for good ideas.

Is this going to be a case of the rich getting richer?  The so-called "missionaries for the family" certainly think so and are determined to quash the measures; you should have seen the chatter about these bills appearing on the State Bar of Michigan's Family Law listserve...

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New York Becomes 6th State to Legalize Same-Sex Marriage; California Next?

Albany, New York.  Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo.  When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009.  The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS.  Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters.  A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement.  His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation.  The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

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Parental Divorce Reduction Act

New Mexico state senator Mark Boitano introduced a bill last February titled the Parental Divorce Reduction Act.  The legislative intent behind the bill was to reduce unnecessary divorce, reduce family court litigation, and educate parents about the effect of divorce on their children.

Noble objectives; unworkable mechanics.  This bill basically died shortly after its introduction to the New Mexico state senate, even prior to being assigned to a committee.  For some reason, despite the death of this bill, it recently has received significant blog attention from family law pundits.

Perhaps the bill made headlines because of its attempt to introduce a significant counseling requirement for divorcing couples, followed by an 8-month "cooling off" period.  The text of the bill specifically mentions counseling topics such as domestic violence, drug abuse and alcoholism, and infidelity.

Many divorcing couples do not have these issues.  Those that do are not in the mind set to benefit from court required counseling; they just want their divorce over with, and quickly.

The best time to counsel individuals about the harmful effects of divorce on their children, addiction, domestic violence, and other family-related issues is prior to a marriage, not at the end of one.  On the other hand, many readers will share my opinion that such matters are not germane to government-imposed counseling.

Sadly, divorce will continue to be a permanent feature to our social landscape.

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Fathers See Gains in County Family Courts

Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts?  To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.

 

Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.

While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner.  Custody is still decided on a “case-by-case”, county by county, basis.

The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case.  The person completing the form, usually an attorney, selects from the basic options of joint custody, or designates custody to mother, or father.

Per usual, however, the devil is in the details.  For many practicing family law, the formal custody designation set forth in a judgment of divorce or custody order is merely a label, and a poor one at that.

Joint legal custody is usually a given; an accepted starting point.  Physical custody, however, is a more contentious battlefield.  The phrase “physical custody” does not even appear in the Michigan Child Custody Act; it is a mechanism used by family law attorneys and family court judges to identify a custodial parent.

The more significant provision is the parenting schedule set forth in the judgment.  Not only does that schedule establish how much actual contact the minor children get with each parent, it also determines the child support obligation for each parent.

Purely anecdotal evidence from our recent divorce cases is consistent with the trend that Fathers are awarded joint custody (legal and physical) more often and, roughly, equal parenting time.  One size, however, does not fit all.

An article titled Throwaway Dads, from the Michigan Bar Journal from 10-years ago, decrying a gender bias against fathers, provides an interesting barometer relative to the climate change in Michigan’s county family courts.

There must be good reasons to establish where the children of a divorce will live, and even better reasons to limit them from the home of one of their parents.  Focusing on the parenting schedule rather than the custody label is the real trend at work here.

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SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day.  One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court.  Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint.  Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system.  By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney.  The reasons for this are because the opposing party is not the state but rather, the mother of the children.  Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt.  Basic stuff.

Bottom line: pay your child support obligations.

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Biological Father Cannot Parent His Law School Love Child

They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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High Court Rules Religious Mom Can No Longer Homeschool

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction.  Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection.  The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge.  The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school.  The child was ordered to progress into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic.  In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child).  His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments.  The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl.  Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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Does the MERS Corporation Own Your Home?

The signs have been piling-up for more than a year now. Mortgage foreclosures have careened out-of-control.

The chief question in courts of law is: who owns the subject property, and can they prove it by producing a mortgage note? Increasingly, the respective answers are: “Don’t know” and “No.”

In 2010, the Arkansas Supreme Court ruled that MERS (Mortgage Electronic Registration Systems) Corporation was prohibited from filing foreclosures in that state.

A federal bankruptcy judge in Long Island ruled just last week that MERS could not act as the “agent” of the mortgage note owner. Judge Robert Grossman acknowledged in a case called In re: Agard, that MERS may be involved with up to 50% of all home foreclosures nationwide, and that his decision may negatively affect the mortgage industry (i.e. accelerate its demise), but his decision required that the process comply with federal and state bankruptcy laws.

Many MERS-held "notes" will either not materialize, or will not pass muster relative to the many networks of applicable legal standards.

The Iowa Attorney General recently announced progress, along with other state attorneys general, in conjunction with the newly established Consumer Financial Protection Bureau, to overhaul the process of how the nation’s largest banks conduct the foreclosure process.  The group essentially is a nation-wide focus group of state law enforcement officers and bureaucrats tasked to generate a list of best-practices they can mold into national standards.

In Florida, attorney and foreclosure-giant, David Stern, under investigation by the Florida Attorney General, just announced that his law firm is suspending foreclosure operations.

In Utah last month, a local judge made national headlines by allowing a judgment debtor to rip-up his mortgage note in open court and literally walk away from his home, debt-free, because the lender could not prove ownership by producing a mortgage note.

All this has the board of directors of the Virginia-based MERS Corporation very nervous. MERS is a private mortgage registry database that has essentially replaced our nation’s tradition of publicly stored land ownership records. MERS’ CEO, R.K. Arnold, among the founders of the corporation, jumped ship in January.

As the foreclosure meltdown has unfolded over the past 24-months, many mortgage lenders’ practices of cutting corners in the lending process, and making some rather huge mistakes, have come to light. This has had the effect of making it difficult, and in some cases impossible, to actually prove who owns a particular home.

The early challenges from county officials in the 1990s to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry. As the MERS system of speed collateralization took off, it developed a process of instant deputization, where thousands of loan officers received “certifying resolutions” in minutes via the Internet.  These financial deputies or, in some cases "agents", were authorized to process mortgage transfers and foreclosures on behalf of MERS.

All good things usually come to an end; sometimes a bitter end. Now, the judges in all the various courts are tipped off; and bankruptcy judge Grossman's decision may go federally viral.

Where will this all lead? Will the state attorneys general, through a new layer of bureaucracy, be able to arrest the process and introduce effective reform? Or will judges, case-by-case, reluctantly pull the threads that will undo our nation’s mortgage lending system?

Only time will tell, so stay tuned on this one.

In the meantime, if you are experiencing mortgage payment difficulties in Oakland County, the Oakland County Treasurer has partnered with GreenPath Debt Solutions, the United Way and others to establish the Oakland County Foreclosure Prevention Initiative.   Simply click on this link or call (888) 350-0900 for assistance with the eviction process or to speak with a certified housing counselor.

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State Bar Task Force Recommends Streamlining Courts System

Barry Howard (left) and Edward Pappas.

The lawyers saw it coming long ago.  With waves of deep budget cuts crashing down upon the public sector, how could the judiciary keep-up with the ever higher demand for its high-quality service we have come to expect?  Judicial reform.

At the direction of the Michigan Supreme Court, the State Bar of Michigan selected a task force of attorneys and judges from across the state back in early-2009.  The task force met for a full-day each month from September 2009 through last May, gathering ideas, discussing problems and suggested solutions, and debating various cost-cutting strategies.

Last week, the task force announced its findings and recommendations.  The following are the more significant findings and recommendations of the task force:

• Our state courts have a mixed-funding structure rather than a state-funded system, with municipalities and court-generated revenues contributing heavily to each county court's operational costs.  This patch-work is having a disparate impact on various courts throughout the state, with some areas getting hit much harder than others; 
• Our 83 counties are served by 585 full-time trial court judges at the district, circuit and probate levels.  The number of judgeships should be reduced according to up-to-date demographic data and historic caseload data; 
• The recommended reduction in judgeships must only take place upon the retirement of currently sitting judges in order to maintain judicial independence; 
• Judicial services should be coordinated and consolidated by region after the "best practices" are identified;
• Increased flexibility among court administrators in the reassignment of workload must occur once the recommended judicial downsizing and service coordination begins;
• Full and effective use of available technology to assist in the delivery of judicial services will reduce costs in the long-run; and 
• Continued use of innovative community-based programs in the trial court setting that address mental health and substance abuse problems will continue to yield significant cost savings.

Basically, the courts will have to do more with less resources.  A familiar song among the state workers and teachers spread throughout the counties and across the nation.

The good news for attorneys practicing in Oakland County is that we have already have most of the docket converted to an e-file system.  There are still some dockets -criminal and some family law cases- that do not currently accommodate electronic filings.

Another innovation to take hold in some of the county circuit courts in Southeast Michigan is electronic file retrieval or Internet-based databases that are searchable by members of the public. A good example of this system is Oakland County's Court Explorer where you can search the docket entries in a case and, for a very nominal fee, order a copy of any document filed in the case.  Usually, in a few hours, the document show-up in your email.

Another (even better) example of electronic access is the Wayne County Probate Court where the documents are imaged and available for viewing electronically with the click of your mouse.  As for the Wayne Circuit Court, however, not so much...

Roster attorneys for the Michigan Appellate Assigned Counsel System (MAACS), for example, physically have to be present on the 9th floor of the Frank Murphy Hall of Justice in order to access our client's register of actions in Wayne County.  This amounts to difficult "access to justice" when, on an appeal, you are simply trying to piece together the procedural history of your client's case.

Electronic docket access differs widely from county to county.  In Genesee, the docket entries of a case is displayed in fragmented screen images.  If you print-out the register of actions in the case, you get several pages of chopped-up, difficult-to-read DOS-style text.  A waste of paper, and definitely not user-friendly.

While the idea behind the task force was to identify some of the "best practices" at the county level and implement them state-wide, this blog wonders whether this will be possible at the political level.

Our law firm's attorneys and paralegals access county court records everyday across the State of Michigan.  From our perspective, standardization of electronic access would greatly improve our efficiencies in the delivery of legal services.

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Illinois Becomes 6th State to Recognize Same-Sex Civil Unions

Like neighboring Iowa, Illinois just passed a same-sex civil union law; the 6th state in the union (plus D.C.) to do so.  This law will likely be tested in court, as in other states passing such progressive legislation.

Like the same-sex marriage law floated in California, civil union statutes, once passed, usually have a rocky road.  In Maine like in California, for example, the same sex union become law via referendum, only to be subsequently invalidated by a court.

Invariably, there is a political price attached to this legislation.  No surprise, given such a polarizing issue that scholars have long-heralded as the next civil rights struggle in the USA.

Recently in Iowa, Lambda Legal sponsored litigation on behalf of gay couples, asserting that denying a marriage license on a same-sex basis violated the liberty and equal protection interests of the state constitution.  In April 2009, the Iowa Supreme Court ruled in favor of the same-sex couples; three of these justices were voted-off the court in the election last fall.

A civil union is an intermediate legislative step toward the institutionalization of same-sex marriage.  In addition to the 6 states recognizing civil unions, another four states endorse "domestic partnerships", which provide broad rights for same-sex partners, but do not formalize the union.  Many gay couples do not avail themselves of such status, rejecting the compromise.

On the other hand, same-sex legislation has been rejected in more than 30 states. Some states, like Michigan, have amended their constitution to expressly limit the scope of marriage to the union of a man and woman.

Same-sex couples have long-sought benefits and rights enjoyed by conventional married couples such as health insurance coverage, tax breaks, even hospital visitation.  Like they did in Iowa, gay advocates often have the means to "put their money where their mouth is" in the form of expert lobby campaigns.

In the nearly two decades since the issue was first litigated in Hawaii, the same-sex movement has taken on religious as well as political tones. Nationally, the issue remains far too close to call.

As our common law tapestry continues to evolve, only time will tell whether this issue will achieve civil rights recognition and eventual institutionalization.

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New Hampshire Supreme Court Reviews Family Court Decision on Home Schooling

Custody issues are almost always best-decided by parents outside the courthouse.  Sometimes, however, a school choice dispute drives post-divorce parents into the courtroom.

In a case percolating through New Hampshire, a family court judge endorsed a parenting plan between feuding parents that featured public school over home-schooling by the mother.  The case was argued before the New Hampshire Supreme Court last week with a decision expected soon.

Mother, Brenda Voydatch, claims a constitutional First Amendment right to direct her daughter's education in accord with her deeply-held religious beliefs.  Father, on the other hand, petitioned the family court for an order that his daughter attend public school.  The family court judge appointed a guardian ad litem for the child who recommended the switch to public school.

Father knows best; for now.

This case has been acquiring headlines while burning through the NH appellate courts.  The parents have already tested their respective positions on the school issue in a full-blown custody trial resulting in joint legal custody, with "physical custody" to the child's mother.

Mother attacked the family court's reliance on the so-called expert testimony of the GAL, an admitted non-expert in the comparative pedagogies sought by the parents.  Mother paid her lawyers to be troubled by the court's apparently exclusive reliance on his GAL; a sort-of "judge-in-the-field".

For their part, father's lawyers have scoffed at the notion that any constitutional issues are presented in the case at all. Father sees the family court's public school ruling as an example of tough decision-making; family court style.   His pleadings also assert that Mother has exhibited an excessive, Christian, religiosity in her curriculum that has impeded their children's socialization; read "secularization".

The dispute is certainly philosophical, if not constitutional.  Stay tuned per usual as we await the outcome of the case and report back to you.

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Adultery in the Marital Bed

Always poor judgment, sometimes an adulterous liason makes it into the marital bed.  If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT.  The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books.  Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson.  That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony.  The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

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