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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Sophisticated Cohabitation May Not Result in Child Custody

Dr. Jonathan Sporn & Leann Leutner

This is a sad tale, yet a sign of our times.  The case illustrates how, despite the oft-progressive status of our modern family laws, and the family law bar, there remains a stubborn bias in the family court that favors the bloodlines of a traditional family unit.

In New York City, Pfizer executive Dr. Jonathan Sporn (54), a divorced man, was in a committed relationship with Ms. Leann Leutner (40), also divorced.  A couple since 2010, the two were inseparable and intent upon starting a family.

According to a petition Dr. Sporn filed in the New York State Supreme Court in Manhattan, the couple resorted to in vitro fertilization following difficulty conceiving; they met with success by using donated sperm for fertilization.  Their baby, Lincoln Sporn, was born last July.

The family law dispute arose, however, when Ms. Leutner, a New York City lawyer and Yale Law grad, retreated to an apartment in New Jersey following an acute bout with postpartum depression.  She discharged herself early from the Mount Sinai Hospital, where she underwent psychiatric treatment, and committed suicide on New Year's Day by jumping to her death from the 14th floor apartment.

Dr. Sporn's custody petition alleges that Ms. Leutner, long-afflicted with mental illness, had stopped taking her prescribed Prozac at the time she was beset with acute postpartum depression.  Ms. Leutner also made prior unsuccessful attempts to take her own life according to the custody petition.

This grim Manhattan custody battle now pits Dr. Sporn against Ms. Leutner's sister from Illinois, who is also seeking custody of Lincoln.  At present, the infant has been placed into foster care somewhere in Gotham in accord with the applicable statute which characterizes the parent-less child as: "destitute".

Like every same-sex couple that splits-up, Dr. Sporn occupies the same position as the partner that lacks any biological connection to the child.  Without that connection, traditional family law says, "you lose" in the inevitable custody war following the split.

Next month, Justice Laura Drager must decide which custodial environment is better for infant Lincoln: the Upper West Side with "Dad", as Dr. Sporn refers to himself, or in Illinois with Lincoln's aunt.  The case is expected to be remanded by the appellate court to the family court for an evidentiary hearing; meanwhile, months will grind by and the infant will become a toddler while in the foster care of strangers.

We here at the Law Blogger wonder, if the aunt was not contesting Dr. Sporn's custody petition, whether he would nevertheless be engaged with a custody battle with the New Jersey Child Protective Services. 

Also, is the aunt's claim thwarting a potential adoption bid for Dr. Sporn?  If so, what a shame.

The case has been tagged here at this Blog, and we will report the outcome.  Let's see just how progressive our family courts can be...

The 2013 Michigan Child Support Formula Manual

Back in January 2008, the Friend of the Court Bureau of the State Court Administrator's Office published a fairly comprehensive set of changes to the Michigan Child Support Formula.  Next week, their new child support manual comes out; the first since those 2008 changes.  This post covers all the significant changes that take effect on January 1st.

The 2013 Michigan Child Support Formula Manual is available online; you can access the manual by simply clicking this link.  As set forth in the manual, here is a summary of the changes scheduled to take place:

In the first significant change referenced above, section 1.04(E), a series of deviation factors are listed for consideration when strict application of the formula would generate inequities; the new factors are:

(18) A child in the custody of a third-party recipient spends a significant number of
overnights with the payer that causes a significant savings in the third party’s
expenses. 

(19) The court ordered nonmodifiable spousal support paid between the parents before
October 2004.  

(20) When a parent’s share of net child care expenses exceeds 50 percent of that
parent’s base support obligation calculated under §3.02 before applying the
parental time offset.

The most significant change in the 2013 MCSF Manual lies in the treatment and explanation of the self-employed individual or business owner.  Section 2.07(E) essentially has been re-written to include an introductory statement of tenets to consider when attempting to calculate a business owner's or self-employed individual's income.

The basic "add-backs", however, remain the same.  Such add-backs include things like: rent paid by the business to the owner-payor; depreciation allowances; home office expenses; entertainment expenses; travel expenses; and vehicle allowances.

While the authors of the manual(s) would not agree, we here at this blog perceive a slight editorial shift in the new manual, going from a pro-payor to a pro-payee treatment of such individuals.

Although the exact language of the income and deduction sections [2.01(C) and 2.07(E)] has been  slightly modified, the effect remains that: a) income includes retirement contributions from either the employee parent payor or the employer; and b) an employee parent deducts up to 5.5% of these contributions from the income calculation.

The 2008 MCSF Manual set the minimum child support obligation at $25 per month; this has been removed in the new manual.

And finally, a better explanation is offered in the 2013 MCSF Manual relative to the treatment of a payor's supplemental contribution to the children's benefit with items such as health care savings accounts or flexible benefit plans frequently offered by employers.

With our headquarters in Oakland County, Michigan, and a proven track record of case management in all the adjacent counties, we provide a free consultation for family court litigants that may have issues arising due to the changes in the MCSF.

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Divorce Detox California Style

Divorce can be thought of negatively and accurately as a self-inflicted wound that harms people other than the once-married couple.

Divorce Detox is a therapeutic counseling regimen for folks going through divorce; divorce "recovery" may be more apt.  The Santa Monica, CA based program will not cure you, but you will feel better about yourself.  And in the Hell that is the divorce process, that has high value.

This peace-of-mind does not, of course, come cheaply.  The standard fee is $2500 and basically includes their "group therapy" package; an extra thousand gets you a series of individual counseling sessions.  That's about what folks out here in the Midwest pay as an initial retainer for their divorce attorney.

Divorce Detox features hours of classes, therapy and homework.  A 100+ page workbook accompanies the materials.  One of the tools that caught our eye is the letter each seminar attendee is required to write to oneself at the beginning of the seminar.  Collected upon "intake", this letter is mailed back to the participant several months after completion of the course.

The core principle of Divorce Detox is to turn a [very] negative experience into a positive.  The program focuses on mind, body and soul.

The process involves one common to most forms of therapy generally: identifying one's problems through careful and deliberate introspection; and addressing those problems, owning them, prior to moving on as a divorcee.

The program even has a blog, although we here at the electronic divorce attorney note that quite a bit of time goes by between posts...

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