Saturday, September 28, 2013

Triple Marriage & Double Divorce With Same Husband Confuses Paternity

Rare is the couple that marries, divorces, re-marries, gets divorced a second time, then re-marries for the third time.  Add a bouncing baby boy born somewhere between the second and third marriage, possibly sired by another man, and what do you have: a rare hot mess.

Rarer still is an appeal decided by a 3-judge panel of the Michigan Court of Appeals, with each judge writing separately.  In Sprenger v Bickle, the dismissal of a putative father's paternity and custody claim was affirmed through a lead opinion authored by the presiding judge, a concurring opinion bringing up alternative rationale, and a 14-page dissenting opinion.

The triple opinions demonstrate how judges hold significantly different views on the standing of a putative father to bring an action under the Paternity Act or under the new Revocation of Paternity Act.  The three opinions also demonstrate how courts struggle mightily with the factual curve-balls pitched to them by creative paternity litigants.

In this case, John Sprenger impregnated a married woman and, after the birth of his son, sued for paternity under the paternity act just prior to its legislative revocation.  Sprenger's on-again-off-again relationship with the boy's married mother, Emily Bickle, took place during a bizarre period in the mother's life when she twice divorced, then twice remarried her husband; the child was born in the woman's most recent married stint.

The majority upheld the family court ruling that the biological father lacked standing solely on the basis of mother's marital status and on grounds that neither the mother nor her husband challenged the boy's paternity to rebut the presumption of his legitimate birth.

In his dissenting opinion, Judge Mark Boonstra focused on the unusual marital and relationship statuses of the three parties, and conducts a tour-de-force on the legal concepts of standing and paternity.  Judge Boonstra correctly concludes that dismissal of Sprenger's claim should not be affirmed but rather, the case should be remanded to the family court for further discovery and an evidentiary hearing on:
  • the precise date of conception; 
  • whether Mother was "incapable of procreation" at that time; 
  • what representations were made by the Bickles to the family court during their second divorce proceeding; and perhaps most significantly, 
  • DNA paternity testing.
Since his first case was filed in the Benzie County Family Court under the old Paternity Act, Mr. Sprenger has re-filed the case under the new law, i.e. the Revocation of Paternity Act.  This case too was dismissed, much on the same grounds as his first case.  Not surprisingly, Sprenger has appealed that case too; he's not taking this sitting down.

A decision from the Court of Appeals on Sprenger's second case could come early next year.  Meanwhile, Sprenger has yet to parent his son.

Saturday, September 14, 2013

Student Loans and Divorce

There are two ways we have seen student loan debt affect divorce proceedings.  One scenario is where the divorcing spouse, usually a newly-minted professional, has accrued a significant debt balance well into the six-figures; as much as $200,000 in the case of a medical degree.

The other is where the student children of a divorcing couple have accrued the debt and one or both of the parents has co-signed on the loan.  These days, there are no job guarantees whatsoever for the graduates, regardless of their GPA or skill set.

When an engaged couple with student loan debt begins to plan for marriage, those plans often include addressing one or both partners' student loan debt.  If either spouse has significant debt, a prenuptial agreement should be considered.

A prenuptial agreement is a contract entered into by both partners, each with independent legal counsel and review, following a full-disclosure of all assets and liabilities.  This agreement is triggered by the death of either party or a divorce.

One of the primary considerations in a situation featuring significant student loan balances, is whether marital funds will be expended to pay back a student loan.  Another important factor for consideration is whether one spouse supports the other while a professional degree is earned during the marriage but also where that degree is financed through student loans.

A prenuptial agreement can address these issues.  Both existing and inchoate debts can be covered within the scope of the agreement.

In the other scenario arising with some frequency these days, a spouse co-signs a student loan for one of the couple's children.  If the student is unable to begin making payments after the grace period expires, the co-signing spouse becomes liable and it is a marital debt issue in the divorce.

Generally, the student loan debts of a couple's emancipated children are not marital debts within a divorce proceeding.  Only when a parent co-signs does this become problematic, especially when the co-signing parent is not the primary bread-winner.  Who pays back that debt if the student cannot?

Before a parent co-signs on a student loan, some thought should be given to the overall health of the marriage and whether it is wise to complicate the marital estate with such contingent liabilities.

If you are struggling with such issues, our law firm offers a free consultation that can provide you with some guidance with these tough decisions.

Side Note:  Here is a link to a post from the Law Blogger from last summer on a related student loan issue.