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.

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 protected individual.

Monday, November 25, 2013

Bi-Coastal Custody Battle Examines Rights of Pregnant Women

Gold medalist Bode Miller
By:  Timothy P. Flynn

The photo at left notwithstanding, Bode Miller has picked-up several Olympic skiing medals in both Salt Lake City and Vancouver over the past decade; he is currently training for the 2014 Winter Olympics in Sochi, Japan.  As a result, he is one of the few household names in men's downhill skiing.

Now he also is becoming known for a bi-coastal custody case involving a woman he briefly dated, and impregnated, from the match-making site for wealthy super-stars: Kelleher International.  This morning, he is scheduled to appear in the Manhattan Family Court for proceedings to establish temporary custody of his 9-month old son.

As happens so often, the mother of the child, Sara McKenna, became disillusioned with the father shortly after announcing her pregnancy, moving from San Diego to New York City to attend Colombia University on the GI Bill [she is a U.S. Marine].  Miller hired lawyers and sued in the Manhattan Family Court to have McKenna return with the couple's then-fetus, to San Diego where he maintains a residence.

In a surprising ruling last June, a Manhattan Family Court Referee issued a decision impugning the mother's conduct, accusing her of appropriation of the fetus [an inchoate form of parental kidnapping], and of forum shopping.  The Referee's preliminary ruling determined that McKenna's conduct was sufficiently "reprehensible" to justify a departure from New York law and ordered the infant returned to San Diego even though the child's "home state" is New York by virtue of the fact that he was born in NYC.

Bode Miller turned-up in the Big Apple last September, with his new wife in tow, to snatch the baby from the arms of a highly distraught McKenna.  This caught the attention of some of Manhattan's high-powered family law attorneys and an appeal was lodged with the New York Supreme Court Appellate Division.

In reversing the Family Court Referee, the appellate court held that a custody case cannot be filed prior to birth, as was done by father's attorneys.  The appellate ruling held that McKenna's relocation to NYC during her pregnancy was not relevant to the determination of the infant's "home state" under the applicable New York law.

The appellate ruling has implications that protect the constitutional rights of pregnant women to move about the country, despite being pregnant.  Putative fathers cannot restrict the constitutional liberties of the women whom they impregnate according to this important decision.

This custody case was remanded back to the Manhattan Family Court and is scheduled for a hearing this morning on the issue of temporary custody.

Sometimes, parents feel they are victims to the subjective rulings of family court professionals: the judge, the referee, or the family counselor of the Friend of the Court.  Whenever you face custody proceedings in a family court, it is best to secure representation from a lawyer that has experience in dealing with the professionals in that court.

Friday, November 15, 2013

Married With Separate Assets

Having represented hundreds of married couples, we have seen plenty of them present to us for a divorce with the proverbial separate bank accounts.  It seems there is a correlation between a separate bank account and a separate heart.

Money, as with sex and religion [and we would hasten to add, children], is one of the primary things that couples argue about and get divorced over.  Money, as the bible tells us, is indeed the root of all evil.

Even so, if evil, money is a necessary evil.  Here are some potential problems with couples that maintain separate bank accounts and assets:

  1. Mistakenly separate property.  If a couple gets married and brings their separate accounts to the marriage, even without overly co-mingling the assets by creating a joint account, such property can eventually get co-mingled over time and become part of the marital estate.  An example of this would include where one spouse uses the funds from a separately titled account to pay marital bills.  When you enter into a marriage and desire to keep your separate property separate, you have to be certain to segregate the property.  Even when you do, us lawyers love to find ways to "invade" the separate property of the moneyed spouse and haul it into the marital estate.  If you are getting married but insisting on the maintenance of separate property, then you should consider executing a prenuptial agreement.
  2. Separate property has greater exposure to creditors.  When you are sued by creditors or file for bankruptcy, joint assets are unavailable to satisfy the judgment creditor and the bankruptcy trustee.  Now be careful here; you cannot just go plunging your money into a joint account to avoid creditors.  That would be deemed a fraudulent transfer made to avoid creditors and such assets may be used to satisfy the creditors.
  3. Administrative complication upon death.  If a married couple maintains separate checking accounts, then some administrative issues will arise in the event that a spouse dies.  For example, the surviving spouse may need to secure a death certificate prior to accessing the funds in the account, assuming that she was named as the power of attorney.  This is not inherently difficult to do but, do you want to be doing it amid the funeral and burial of your loved one.
  4. Separate accounts do not encourage financial communication.  Finally, maintaining separate accounts does not foster open communication between spouses about their finances.  The other spouse is left to guess as to the net worth of the individual, the net worth of the marital estate.  One spouse may never know about any savings cushion unless asked.  The overall financial picture of the couple remains hidden from full view.  When it comes to finances, this is usually not a good thing in a marriage.
Maintaining separate assets is a tactic that most often comes from old habits dying hard.  We find that the older a couple is when they get married, the more likely one or both partners will maintain that separate checking account, or keep that one asset in their sole name, almost like a symbolic insurance policy.  But we have to ask, insurance for what.

Going "all in" with joint accounts and jointly titled assets is the better plan for the long term marriage.  This is especially true if the couple executes estate planning documents shortly after their nuptials.

Sunday, November 3, 2013

CEO Divorce: What's in it for the Shareholders?

By: Timothy P. Flynn

There is no doubt that a divorce proceeding affects any professional's work routine; that includes, of course, corporate executives.  The distraction of a divorce in the board room, however, affects others outside the company; it pulls the corporate shareholders within its scope.

We're not just talking about guys like Mad Men's Don Draper, whose divorce temporarily but significantly affected the partners of a successful NYC advertising agency.  A CEO's divorce can affect the bottom-line for the shareholders in the company.

There are several ways that an executive's divorce could affect the company for which he or she manages.  First, if the executive has a significant stake in the company, the divorce could affect the executive's controlling interest.  The divorcing spouse will want a portion of the value owned by the executive and that value could affect control of the company.

Second, the divorcing executive's corporate focus and energy levels will be impacted by the trajectory of his or her divorce proceeding.  It is no surprise that business studies and surveys have shown that well over one-third of companies report a negative productivity impact directly arising from the divorce of an executive.

Third, the divorcing executive's strategic decision making can be influenced by the divorce proceeding.  If, for example, the executive is funding her divorce settlement with personal assets so that she can retain her share of corporate ownership, her outlook toward risk could be impacted: i.e. she may become more risk-adverse in the short term in order to protect her suddenly less-diversified and more concentrated net worth.  Being less risk-adverse may not be good for the company or its shareholders.

All of this affects a shareholder's interest in the company.  In many cases, perhaps because of the above examples, corporate divorces are handled as privately as possible.

The collaborative model we prefer here at Clarkston Legal serves the executive, and thus her company, very well.  The collaborative model is where the divorcing parties, and their team of professionals, meet and negotiate a settlement before a divorce proceeding is officially filed with the family court.

If you or your spouse are considering a divorce and there are corporate implications, you should give serious consideration to the collaborative model.  To learn more, contact us for a free consultation.