Completing Divorce in One Year

In 2003, the Michigan Supreme Court issued an administrative order requiring all county family court judges to complete divorces within a year of their filing. Since that time, county family court judges have struggled to comply.

Under the Supreme Court's administrative rule, a family court must submit numbers of filed and completed cases to the State Court Administrative Office. All cases listed on the docket that were not, or are not going to be completed within the year must be accompanied by an explanation from the judge.

An elected sitting family court judge does not want to be explaining her slow-moving family court docket to state court administrators. This would only risk getting on the Michigan Supreme Court's radar.

Earlier this month, a Wayne County Family Court judge had the misfortune of lagging in this regard so badly that a formal complaint was filed with the Judicial Tenure Commission. Apparently, this judge developed a very "fast-and-loose" procedure whereby he would take brief testimony as to the breakdown of the marriage, or even accept the representations from counsel if the parties were not present, in order to count the case among those "resolved" when it came time to report his numbers to the SCAO each month.

Another tactic adopted by this judge back in 2010 was to dismiss the case from his docket, but then allow the lawyers to continue to work on the case. This way, the judge's numbers could stay off the Supreme Court's radar.

The ploy did not work, however, resulting in this Supreme Court order of rebuke. That did not prevent the good judge from developing other tactics to stay abreast of his administrative requirements.

All this has led us to question the wisdom of requiring divorces to be completed within one year. In most cases this is sufficient time to start, negotiate and complete a case.

Not all cases, however, fit the typical pattern. In some cases, there is the obstructionism, recalcitrance, and obstinance of one or both parties. There is also the lawyers’ and the judge’s agendas.

Complex high-value marital estates, for example, often require extra time to evaluate businesses, or assess stock grant contracts or non-qualified compensation packages. In other cases, custody disputes need extra time to sort out an acceptable resolution in the best interests of the minor children.

We suspect in such instances, a judge could avail herself of a reasonable explanation that would be acceptable to the case-counters.

Not all counties lend themselves to complete every case on the docket in a year. In Wayne County, for example, there may be a higher per-judge caseload then in some out-county family courts that have less population and thus, fewer cases filed.

Attempting to deceive the Supreme Court is never the way to go. Despite a docket backlog, the public and the judiciary should be able to expect that every judge in every county will use their best efforts to keep the cases on their docket on track and will see them through to timely completion.

This is just how the system is designed to work. Parties to a divorce do not wish to prolong their agony.

If you are experiencing a divorce that is going to drag out longer than one year, consider contacting our law firm for a free consultation so that your option of making a change of counsel can be assessed.

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False Child Abuse and Neglect Complaints

Sometimes, co-parents take an overly aggressive approach to reporting perceived wrongs to their county Child Protective Services. If this becomes a habit, there are steps the target parent can take to protect their custody position in a high-conflict family court proceeding.

First, making a false claim of abuse or neglect is a felony. The target parent should contact local law enforcement to see whether a case can be charged.

Second, if a series of false or unfounded reports is made to CPS, ask the case worker to report this conduct to the Friend of the Court. This could result in a warning being issued or a modification of custody.

Third, the Court of Appeals has recognized that a co-parent that lodges false reports of abuse or neglect negatively impacts their own custody chances. The Court of Appeals has directed family courts to take this into account when making a custody determination in a high-conflict case.

The purpose behind these measures is not to punish the offending parent but rather, to advance the best interests of the minor children who are often in the middle of such disputes. When a CPS complaint is lodged, regardless of merit, interviews with the minor children are triggered as well as visits to the children's school and the parents' homes.

When a series of baseless claims are made, these interviews and visits become onerous and offensive. The offending parent need to be shut down.

If you are the target of false claims of child abuse or neglect, contact our law firm in order to discuss your options at a free consultation.

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Family Court Judge Refuses Divorce

Chancellor Jeffrey Atherton

Sometimes, a judge is just looking for some cheap professional attention. That's what we suspect occurred this week when a Tennessee family court judge cited the SCOTUS marriage equality decision, among other reasons, as the stated basis for denying an elderly couple's divorce.

After hearing from 7 witnesses and considering dozens of exhibits over 4-days, Hamilton County Chancellor Jeffrey Atherton refused to grant the divorce sought by the litigants. And now, perhaps by the Chancellor's design, here comes his 15-minutes of ill-conceived fame.

In denying the requested relief upon completion of the proofs, the Chancellor stated that because of the SCOTUS decision in Obergefell v Hodges, the Supreme Court now needed to clarify, "when a marriage is no longer a marriage." The judge's reasoning is flawed to the extent that whatever our High Court has defined as a fundamental right within the context of marriage has nothing relevant to do with a state law divorce proceeding.

Chancellor Atherton further concluded that because the SCOTUS has deemed Tennesseans incompetent to define the central institution of marriage, he is somehow judicially hamstrung on the performance of his sworn duties. Those duties would include presiding over and resolving a contested divorce proceeding through a judgment.

What the...?  Is this guy trying to match wits with Kim Davis over in Kentucky?

Divorce proceedings rarely go to trial. When they do, one of the findings a family court judge is required to make is that the objects of matrimony have been destroyed such that there is no reasonable likelihood the marriage can be repaired; the ole "irreconcilable differences".

To properly conduct a divorce trial, the family court judge then needs to make factual findings in the case -usually about the parties' property in a case like this, without children- as well as make other legal decisions, i.e. whether alimony is appropriate. Then, the judge must issue a judgment of divorce setting forth the decisions of the court.

In this case, after 4-days of testimony, Chancellor Atherton concluded the marriage could be salvaged and hoped the couple reconciled. It appears to us, however, that this couple has become victim to the judge's personal desire to grab headlines by stating his political differences with the Obergefell marriage equality decision.

Divorce is difficult enough for couples without this form of petulant judicial grandstanding. We will continue to monitor this case in order to see what "work around" is utilized to correct this judge's harmful error.

In blogging about the marriage equality civil rights movement over the past decade, we predicted that, if the SCOTUS established a fundamental right to marriage, as it did, there would be plenty of instances where people in positions of power, like this  county judge in Tennessee and like the court clerk in Kentucky, simply refuse to obey the law of the land.

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Famous Mother Loses Custody

As divorce lawyers, we see many custody battles unfold in the family court. Over the years, our law firm has developed experience in the defense and the prosecution of child custody battles; we have become students of the industry.

When not actively engaged in a custody proceeding, our lawyers monitor the legal and popular press for interesting cases. This week, the incredible custody battle of Gossip Girl actress Kelly Rutherford caught our attention.

This sad case has everything: million dollar divorce lawyers, a pricey detective, a working bi-coastal actress mother, a European businessman father, a case in LA, a case in New York City, bankruptcy, restraining orders, State Department involvement, a White House plea, and two very well-traveled young children.

While Rutherford was pregnant with their second child in 2008, the briefly married couple filed for divorce in Los Angeles County, California. The father, German business entrepreneur David Giersch, sought sole custody and the couple began a protracted battle over labels like legal custody and physical custody.

This label battle soon began to take on real-life dimensions when Rutherford sought to move the toddlers to NYC where she was filming a season of Gossip Girl.  Father objected on grounds that the actress' job was detrimental to their children and that NYC was unsafe.

When Rutherford believes she is being followed by Giersch, she obtains an injunction; a protective order. She alleges Giersch is abusive during parenting exchanges. She hires a detective to surveil father for three days; for his part, Giersch denies the allegations of abusive conduct.

In August 2012, the family court judge orders the children to live with their father in France and Monaco.  This ruling was affirmed a year later and the children left for Europe last week to live, permanently, with their father.

Along the way, Rutherford has spent over a million dollars on divorce lawyers and private investigators, has filed for bankruptcy, and more recently submitted a petition to the White House asking that the president get involved in her case.

So what goes into a family court judge's calculus in relocating two American children to Europe? One of the major sticking points seems to be the mysterious revocation of father's visa, barring him from entry into the U.S. Some say Rutherford was behind the move, accusing her ex-spouse of running guns and drugs across international boarders.

Another problem for mother was the judge's dim view of her credibility; in the opinion, the judge pointed to mother's lack of candor relative to testimony about her work schedule and other important matters. If Rutherford did arrange to get Giersch's visa revoked, she shot herself in the foot to the extent that she basically forced the judge's hands.

Change of domicile cases are among the most disruptive scenarios to occur in family court; they are much more prevalent in our mobile society.

Further, once the relocation was affirmed, the LA County family court washed its hands of the entire case, ruling that it no longer had jurisdiction over the matter. Oddly, this did not occur before that court strangely awarded Rutherford temporary sole custody over her children, perhaps as a gesture to allow mother to "say goodbye".

From there, Rutherford recently re-filed in NYC. It was Gotham from which the children departed last week for Europe.

Although she has free access to conduct parenting time when in Monaco, the mechanics of Trans-Atlantic parenting and the lack of an enforcement mechanism are daunting, even for a famous actress. So for now, lives lay in ruin at the hands of two famously warring parents.

In such cases, there is very little that a family court can do to patch such a yawning rift. If you are facing custody and parenting troubles, consider giving our law firm a call to schedule a free consultation.

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Spousal Support Always Modifiable Once Awarded by Family Court

If the parties to a divorce do not settle their divorce, then a family court will decide the issues in the case, including spousal support and whether income should be imputed to a non-earning spouse. The court's decision is discretionary thus, what the court orders will stand unless that powerful discretion is somehow abused; that is precisely what happened in Loutts v Loutts regarding the issue of alimony.

The Loutts case is an interesting case study on the valuation of a business and the calculation of alimony. Both spouses had PhDs and both were "hands-on" in the running of a global laser business developed by husband.

The Washtenaw Circuit Court cannot seem to get the alimony equation correct as the case has made two trips to the Michigan Court of Appeals and the appellate court has twice reversed the decision of the lower court. The first appellate decision addressed the "double dip" concept of alimony: where the business is valued by capitalizing the income derived from the operation of the business while, at the same time, factoring that same income stream into a spousal support calculation. The court cannot count the same dollars twice. 

The second appeal involves the statute that allows alimony to be modified by the family court upon the petition of either party. The right to modify alimony, once awarded by the trial court, cannot be extinguished according to this case. The only way to foreclose any future modification of alimony is for the parties to make this agreement themselves, and to expressly memorialize this bar in their initial divorce decree.

A trial at which a family court makes the initial alimony determination will keep the question open, subject to modification, apparently forever. The family court cannot place what is known as a "presumptive term" on an alimony award and then deny any request for modification filed after the term expires. Once awarded by the family court, the question of spousal support remains open.

The irony of this case is that, although the reviewing court held it was error to foreclose the request for modification of alimony, it concluded the error was harmless because Wife did not persuade the family court that there was a change of circumstances to merit an extension of her alimony payments.

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Michigan Legislature Again Seeks to Restrict Divorce Trolling

We lawyers are not supposed to be soliciting anyway, as it is expressly prohibited in the Rules of Professional Conduct.  But over the years, a small group of divorce lawyers, unable to get clients any other way, send solicitation letters to people with the misfortune of having their spouse file for divorce. 

The practice is the divorce equivalent of ambulance chasing.  Now, the Michigan Senate again has taken action with SB 351, a seemingly perennial bill sponsored by Senator Rick Jones [R-Grand Ledge], which seeks to prohibit lawyers from contacting a person or family member involved in a divorce filing until 21-days after that person is officially served with the divorce papers. 

Our law firm has experienced this divorce solicitation practice first hand: we are retained by a client to commence and prosecute a divorce proceeding, we file the complaint with the county clerk, and before we can even get the other party served, BAM; a solicitation letter hits the mailbox and all Hell [potentially] breaks loose. 

This latest Senate bill, introduced toward the end of May, is the third attempt in 4-years to block the questionable practice. 

The primary concern among the divorce professionals who support the legislation is that, in cases of domestic violence, the spouse who filed for divorce needs time to seek a personal protection order.  They also point to inflammatory language often contained in the solicitation letters as well as their effect of casting general derision upon our once-great profession as a whole. 

In the past, industry professionals opposing past iterations of the measure have indicated that the bill would have unintended consequences: a first offense is a misdemeanor carrying a fine of $1000; repeat offenders could do up to a year in jail and face a $5000 fine.  

Citing an undue restriction to commercial free speech, the Michigan Supreme Court declined to support the bill through a requested amendment to the professional conduct rules that would prohibit trolling for divorce clients. The State Bar of Michigan's Family Law Section has long-championed this type of prohibition, relying mostly on the domestic violence argument.  The Section attempted to get the applicable court rules on service of process changed -something handled by the Michigan Supreme Court rather than the legislature- but the MSC declined on the basis that insufficient empirical data was presented in support of such a procedural rule change. 

When we are hired to file a complaint for divorce in the family court, we always advise our client that the new law suit is not a well kept secret.  We inform our clients that: a) trolling lawyers are out there, and they will solicit the business of their spouse; b) within a day or two, the filing is reflected on the county clerk's court records on the Internet; and c) new case filings are contemporaneously published in the local legal newspaper. 

As much as we support legislation designed to curb or limit domestic violence, we here at this blog believe that SB 351 [and its immediate predecessor SB 981], as proposed, may suffer from constitutional defects. First, the measure interferes with a lawyer's important First Amendment freedoms, however distasteful the message. Regrettably, family law is a complex industry featuring a busy intersection where advertising and public records collide. 

Second, as drafted, the measure seems overbroad, criminalizing conduct not targeted by the legislation and having an overall chilling effect on otherwise legal activities.  Third, opponents cite to the right of timely notice when being sued and note that no other area of law imposes similar restrictions on the bar.

If you or a family member are in need of legal advice in the family law area, contact our law firm for a free consultation.

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Alcohol Abuse Results in Parenting Conditions

Earlier this month, the Michigan Court of Appeals addressed alcohol abuse and parenting conditions in a rare published opinion; rare in that parenting time appeals do not get published very often. This case, Kaeb v Kaeb, comes to us from Ottawa County Family Court and sheds some light on the proper way in which to conduct an evidentiary hearing seeking a modification of the parenting schedule.

Like many cases we see, the parents in Kaeb were litigious, going back to court following the entry of their judgment of divorce, in order to modify their custody and parenting arrangements. Mother alleged Father was an alcohol abuser and compulsive gambler; she alleged this conduct affected his ability to conduct proper parenting time.

Apparently, at his lowest point during their divorce proceedings and at the nadir of his alcohol abuse, Father agreed to a small amount of supervised parenting time. As he addressed his demons over time and climbed onto the sobriety wagon, he eased into increased contact with his minor children. Eventually, Father sought to modify his parenting schedule by removing the conditions that he attend regular AA meetings.

When such cases reach a critical juncture, the family court often holds an evidentiary hearing where each side can put evidence [in the form of testimony and documents] into the record to support their contentions. Only evidence about events and circumstances that occurred since the entry of the court's last parenting or custody order is relevant and thus admissible.

Accordingly, in support of his motion, Father submitted a psychological evaluation and a letter of discharge from his therapist.  While Father testified that he was in compliance with the court's prior order by addressing his alcohol abuse and attending AA meetings, he also may have been able to take advantage of a therapeutic alliance with his counselor.

Shortly after the entry of the court's prior order placing conditions on his parenting time, for example, Father generated a letter from his therapist stating there was no clinical need for him to attend regular therapy sessions or AA meetings.  Also, Father did not produce AA "sign-in" sheets at the hearing, only his self-serving testimony about attending the meetings.

The family court was troubled by this sketchy record, concluding that Father was in compliance with its previous orders. But the court did not find that Father satisfied the evidentiary burden of demonstrating a proper cause or a "change in circumstances" to justify any modification of previously imposed conditions to his parenting time. Further, the family court sanctioned Father for attorney fees in bringing what it characterized as a frivolous motion.

In reversing the family court, the Court of Appeals noted that this case did not involve a change in custody or a change to the established custodial environment. Rather, the appeals court viewed Father's burden in the context of modifying a condition to his parenting time.

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Custody Bills Protect Soldiers

Yesterday, Governor Snyder signed Senate Bill 09 and tied barred House Bills 4071 and 4482 which provide protections for active service members involved in family court child custody proceedings.  The Senate bill stays custody proceedings during a service member's deployment while the House bills provide similar protection relative to court-ordered parenting time.

The new legislation simply amends the Child Custody Act, an oft-amended piece of legislation. The amendments provide service members protection in the form of a stay of proceedings until the period of deployment ends.

In order for the service member to avail himself or herself of the protections of the new laws, that service member must request the stay from the family court. In cases of emergency, a family court judge would still have the power to modify the custody or parenting time of a minor child.

These bills received unanimous support in both legislative chambers, perhaps due to the case of an active duty father who temporarily lost custody of his child while on a 6-month submarine deployment for the U.S. Navy in the Pacific Ocean.

If you or a family member are active duty military and need assistance for a family law matter, contact our law firm for a free consult. We provide fee discounts for active military.

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Series of Moves Violates 100-Mile Rule

Earlier this month, the Michigan Court of Appeals again considered the 100-mile rule in a published decision. The case is significant to the extent that it provides parents guidance on the location of their post-divorce domicile and is yet another case that illustrates the concept of joint custody.

In Eickelberg v Eickelberg, the parents were awarded joint legal custody. Father was active military and made two job-related moves after the divorce: first from the former marital home in Clinton Township to Perry, MI 86 miles away; then on to Marshal, MI which was 126 miles from the former marital home. 

Understandably, Father's move complicated his parenting time; especially his mid-week parenting contact with the children.  So he moved the court to modify the parenting schedule and to adjust the parenting transition point to a location closer to his new home in Marshal.

Equally understandably, Mother objected arguing that Father's series of moves violated the 100-mile rule which prohibits a custodial parent from moving to a location more than 100-miles from the child's residence at the time the divorce or custody proceeding was initiated. The Court of Appeals rejected the Macomb County family court's calculation that the miles to be measured were only from the Father's most-recent residence; i.e. from Perry to Marshal.

Since Father's second move was more than 100-miles from Clinton Township, he was required to obtain Mother's approval prior to the move, or the family court should have held a hearing to consider the so-called "change of domicile" factors in order to determine whether the proposed change is in the best interests of the minor children. In addition, to further complicate the legal analysis, because Father's move changed the children's "established custodial environment", the eleven statutory best interest factors also should have been evaluated by the lower court.

Consequently, the case was sent back to the Macomb County family court to conduct such a hearing.

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Unfounded CPS Complaints Lead to Loss of Custody

We have seen this movie at our law firm on a few occasions.  A maladjusted parent attempts to enlist the machinery of the state in a bid to gain custody by making false or trumped-up allegations of abuse against the other spouse or co-parent.

Earlier this week, the Michigan Court of Appeals affirmed a St. Clair County Family Court judgment that awarded Father sole legal custody and limited Mother's parenting schedule to minimal supervised sessions largely on the basis of Mother's series of unsupported allegations of abuse and neglect made to CPS.

These unfounded allegations of abuse and neglect, combined with Mother's overall campaign of alienation against Father, left Mother with only two hours of supervised parenting time.  While it appears she brought this on by her own actions, we never like to see a parent stuck with such limited parenting time.

In this case, however, Mother was her own worst enemy.  The trial testimony not only featured credible evidence of parental alienation and unfounded CPS complaints, Mother also subjected the children to multiple forensic interviews, while she violated the family court's temporary parenting orders; a recipe for disaster to be sure.

Additionally, to make matters even worse for the children, Mother assaulted Father on several occasions, sometimes in front of these poor children.  As a result, the older child now has issues of his own and Mother is "overwhelmed" by her son's issues.

From a professional perspective, we note here at our law firm that the trial court's decision was deemed to be well-reasoned and supported by applicable authority.  With regard to the appellant-Mother's challenge to her limited parenting time, the Court of Appeals stated:

Other than to argue that she was justified in reporting the issues to CPS and that she loved and cared for the children, defendant has done little by way of argument to demonstrate that the trial court erred in determining parenting time.  Trial evidence supported the factors mitigating against greater parenting time, and the trial court’s findings with respect to parenting time were not against the great weight of the evidence.  Importantly, defendant has not been removed from the children’s lives as she has weekly parenting time, and the trial court’s order –as it must- left open the possibility that she can be granted more time in the future.

So the Mother in this unfortunate case will need to earn herself a spot back into the lives of her children.  Thus, she would be well-advised to start playing by the rules: i.e. following the court orders issued in her divorce case.

The simple lesson here is, even when your adult relationship has deteriorated to the point of divorce, you must make every attempt to co-parent with the person with whom you procreated for the sake of the children.

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Senate Bill Prevents Lawyers From Soliciting in Newly Filed Divorces

We lawyers are not supposed to be soliciting anyway, as it is expressly prohibited in the Rules of Professional Conduct.  But over the years, a small group of divorce lawyers, unable to get clients any other way, send solicitation letters to people with the misfortune of having their spouse file for divorce.

The practice is the divorce equivalent of ambulance chasing.  Now, the Michigan Senate has taken action with SB 981, a bill sponsored by Senator Rick Jones [R-Grand Ledge], which seeks to prohibit lawyers from contacting a person or family member involved in a divorce filing until 14-days after that person is officially served with the divorce papers.

Our law firm has experienced this divorce solicitation practice first hand: we are retained by a client to commence and prosecute a divorce proceeding, we file the complaint with the county clerk, and before we can even get the other party served, BAM; a solicitation letter hits the mailbox and all Hell [potentially] breaks loose.

The primary concern among the divorce professionals who support the legislation is that, in cases of domestic violence, the spouse who filed for divorce needs time to seek a personal protection order.  They also point to inflammatory language often contained in the solicitation letters as well as their effect of casting general derision upon our once-great profession as a whole.

At hearings before the Senate Judiciary Committee last month, lawyers opposing the measure indicated that the bill would have unintended consequences: a first offense is a misdemeanor carrying a fine of $1000; repeat offenders could do up to a year in jail and face a $5000 fine.  Opponents of the bill also point out First Amendment considerations and argue that family law is a complex industry in which advertising is necessarily involved.

The State Bar of Michigan's Family Law Section has long-championed this type of prohibition, relying mostly on the domestic violence argument.  The Section attempted to get the applicable court rules on service of process changed -something handled by the Michigan Supreme Court rather than the legislature- but the MSC declined on the basis that no empirical data was presented in support of such a procedural rule change.

When we are hired to file a complaint for divorce in the family court, we always advise our client that the new law suit is not a well kept secret.  We inform our clients that: a) trolling lawyers are out there, and they will solicit the business of their spouse; b) within a day or two, the filing is reflected on the county clerk's court records on the Internet; and c) new case filings are contemporaneously published in the local legal newspaper.

Unfortunately, it must be noted that our state legislature sometimes does find it necessary to regulate the practice of law in Michigan via criminal statutes.  For example, ambulance chasing in personal injury cases is prohibited for 30-days after the date of the accident.

As much as we support legislation designed to curb or limit domestic violence, we here at this blog believe that SB 981, as proposed, may suffer from constitutional defects.  First, the measure interferes with a lawyer's important First Amendment freedoms, however distasteful the message.  Also, as drafted, the measure seems overbroad, criminalizing conduct not targeted by the legislation and having an overall chilling effect on otherwise legal activities.

If you or a family member are in need of legal advice in the family law area, contact our law firm for a free consultation.

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Active Military Duty Mom Loses Custody via Court of Appeals

Here is a tough choice: to serve your country through military service, or to continue being the primary care provider for your preschooler.  That is the decision a Wayne County mother had to make recently as she contemplated her options in family court.

In 2007, the Child Custody Act was amended by our state legislature to protect active military parents.  The amendment to the statute states in relevant part:

If a motion for a change of custody is filed during the time a parent is on active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

In the Wayne County case, father filed a motion to change custody in response to mother's intent to change her domicile to another state; the state where she would eventually begin her deployment with the U.S. Army.

Hearings were conducted in the Wayne County Family Court which resulted in the family court judge ruling that father should have "temporary physical placement"; a new phrase in our custody parlance.  Apparently, the Court of Appeals agreed, finding in Kubicki v Sharpe that the dispute hinged on precisely when Mother's "active duty" commenced.

Does "active duty" mean: upon enlistment; upon commencement of basic training; or upon deployment?  The intermediate appellate court took a pass on deciding the meaning of this term in the Child Custody Act by ruling that father's custody motion was filed prior to mother's enlistment.

We here at this blog think it a shame that this decision was not made with better clarity.  An excellent opportunity was lost that could have provided some much needed certainty for those willing to serve our country through the military.

Clear as mud, the Court of Appeals took the opportunity to remand the case back to Detroit so that the family court judge could ascertain the child's reasonable preference.

Collateral note: the case is also instructive for language that the moral fitness of the parties, a custody factor in the Child Custody Act, does not include the moral fitness of one of the parties spouses, in this case, mother's husband who was recently convicted of domestic assault against the mother.

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Family Pressure: When the Pot Boils Over

By: Amanda Chapman

An interesting book was released earlier this summer, “Marriage Markets” by June Carbone and Naomi Cahn, which describes the state of marriage in our modern American society.  As a divorce lawyer, I found the book accurately reflects much of what I observe in my day-to-day profession.

The authors are both professors who teach family law courses. They grapple with the concept of marriage and how well (or not) it works for people of diverse socioeconomic backgrounds. 

With the divorce rate of almost 50%, approximately half of American kids are born into single-parent homes; or homes that become single-parent.  Marriage, an institution that protects and fosters the growth, enrichment, and advancement of children, is becoming increasingly difficult to maintain for many Americans. 

What I find especially interesting in this book is the way the authors compare the state of marriage to the realm of family law; specifically the ways in which the law has lagged behind the (de)volution of marriage in our society.

The authors draw the following conclusions about the state of marriage and our family laws today:

Marriage still works for the top-third of the wealthiest families as they typically delay having children until they secure lucrative careers.  Also, the wealthier couples are the only couples who have the financial resources to “fight” it out in court if they get a divorce.

More middle class couples are divorcing due to the fact that many good blue-collar jobs (for men) have simply vanished, while women have been able to obtain careers and can be self sustaining financially.  The authors assert that many middle-class women simply won’t put up with unhappy or abusive marriages today, as they may have done in the past when they did not have access to employment. 

But, for many middle class divorcing couples, protracted litigation during a divorce proceeding is simply too expensive.  Some women are worried about supporting husbands who have been out of work or who earn less than they do; the benefits of “taking it to the Judge” are minimal in their estimation.

Lower class families have the hardest time.  The authors contend that for parents on the lower rungs of the socio-economic ladder, family law is downright punitive; paternity suits that result in child support obligations that are rarely met and with mother’s trading access to the child for some form of financial support.

From my own professional experience, I agree with the authors of Marriage Markets.  Family law as we know it today requires some careful thought and consideration as to how we, as a society, can better protect the interests of the children born to single parent households.  The authors urge the reader to focus more on “the children whose lives are being shortchanged by growing societal inequity” and less on marriage itself. 

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The Economics of Child Support

DHS Director Maura Corrigan

The Michigan Auditor General gave a high grade to the arm of the state bureaucracy responsible for collecting and distributing child support.  In the two year audit period billions in child support dollars were collected and distributed with 99.9% accuracy according to the auditor.

Much of the credit for these good marks is attributable to the Office of Child Support, which is an arm of the Department of Human Services.  DHS is directed by former Michigan Supreme Court Justice Maura Corrigan, having been appointed by Governor Rick Snyder .

A quick story about Maura Corrigan.  When this blogger phased from a two-year stint with the Michigan Court of Appeals to one of Michigan's largest law firms in Detroit, one of the newly hired associates in the office just down the hall from mine was Maura Corrigan, transferred from the Detroit office of the U.S. Attorney.  Then former Governor John Engler appointed Corrigan to the Michigan Court of Appeals and the Michigan Supreme Court; she was re-elected in each position before being appointed DHS Director.

When she took over DHS, Corrigan was tasked with cleaning-up the rampant fraud that was draining cash and food assistance programs of their funds.  Under her leadership the Office of Child Support is an example of how a government bureaucracy is meant to function.

The recent audit -the second consecutive audit to give the Office of Child Support high marks- prompted Corrigan to make the following remarks:

I am proud of the work done by our Office of Child Support.  The audit confirms that we effectively collect and distribute child support dollars.  That means children have the support they need and deserve.  The $2.6 billion in child support received during the audit period is pumped into Michigan's economy and helps many families achieve financial independence rather than relying on public assistance - which saves taxpayers money.

No question, when child support is paid on time in the correct amount, the overall economy -an economy with every-other-household affected by divorce- gains.  The resources expended on child support enforcement are massive.

To assist child support payors with their monthly obligation, Michigan has contracted with a web portal service known as MiSDU that automates payments.

If you have questions as a recipient of child support, or as a child support payor, give us a call for a free consult; perhaps we can point you in the right direction.

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Digital Precautions in Preparation for Divorce

So you've decided to take that fateful step and file a complaint for divorce.  Prior to doing so, consider these tips, mostly taken from USA Today reporter Kim Kommando's article reprinted in the Freep.

1.  Change Passwords.  Although this seems intuitive, the Freep article points-out that 67% of couples share their passwords on at least one account.  The problem with this that once you begin sharing that password, it is difficult to become disentangled when things go south.

So review your digital estate and, on a device that is not shared with your spouse, change all of your passwords to a strong unique password, using at least one capital letter a symbol, and a combination of letters and numerals.  As pointed out by Ms. Kommando, avoid any combination with which your partner may be accustomed.

2.  Terminate Shared Profiles.  While cute when you're together as a couple, there is nothing more humiliating, even devastating, than having a joint platform which your spouse can co-opt as a soapbox, from which to trash you to your common electronic social circles.  Therefore, prior to making your divorce filing "official", be proactive in swiftly terminating such joint profiles.

3.  Sanitize the Hard Drive of a Shared Device.  Like social media accounts, many couples share computers, laptops, notebooks, tablets, even cell phones.  If this is the case, take a moment to wipe the drive clean after removing all of your key personal and financial data.  [Note: In many a divorces, such shared devices often "disappear".]

4.  Password Protect Your Own Devices.  Do not leave things to chance.  Many divorces cases begin with information one spouse acquired by browsing onto and into the other spouse's non-password-protected device.  If you are serious about filing for divorce, do not allow your spouse the up-front advantage of downloading all of your personal and private data stored on your cell phone, laptop, or tablet.  Call-logs alone can provide a wealth of information that you may not want in the hands of your spouse, or your spouse's divorce professionals.

5.  Curtail Your Social Media Activity.  In the past few months alone, I cannot believe how often we have experienced instances of a divorcing spouse leaving a trail of incriminating evidence on social media sites that are wide-open to the public.  Regardless of the fine-tuning available on the privacy settings of a user's electronic profile, we advise our at-risk divorce clients to simply reduce their presence on social media altogether while going through a divorce.  Easy, simple, problem solved.

If you take these five simple precautions prior to filing for divorce, you will be doing yourself a huge digital favor.  Good luck, its an electronic jungle out there.

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Family Court Judge Did Not Violate Teenager's Constitutional Rights Excluding Her From Parents' Custody Hearing

By:  Timothy P. Flynn

This is a case with an important message from the Ohio Supreme Court.  Thus, while the In Re AG opinion, released yesterday, does not bind family courts here in Michigan, it is nevertheless instructive.

Since 2001, the teenager, A.G., grew up amid perpetual family court divorce proceedings in both Henry and Ottawa Counties in Northern Ohio.  At one point or other, each parent had custody of A.G.  During these various post-judgment custody battles, each  parent sought to sever all contact with A.G. by the other parent by taking the child out of state.  Pitched battles to be sure.

The entire mess came to a head in 2009 when a custody trial was scheduled to take place in Ottawa County Family Court.  Apparently, by that time, Father's parenting time was supervised; he was seeking unsupervised parenting time.  His then 13-year old daughter moved the family court to terminate all parenting time with her Father and for the right to attend the scheduled hearing to decide these issues.

The family court judge interviewed the teen in chambers in order to ascertain her "reasonable preference" regarding custody and parenting time, as we do here in the Michigan family courts.  But the judge denied the teenager's request to attend the trial.

A.G.'s appeal to Ohio's intermediate appellate court affirmed the family court judge's decision, as did the Ohio Supreme Court yesterday's opinion.  The Ohio High Court ruled that while a minor child has an interest in the ongoing divorce proceedings of her parents, she is not a party litigant with attendant rights to be present for all proceedings.

The Ohio Supreme Court also ruled that a family court judge has the discretion to exclude a minor child from the custody proceedings of her parents and that this exclusion does not violate the child's Due Process rights.

Over here at the electronic divorce attorney, we believe this is the correct decision.  One of our recent divorce trials lasted 10-days and featured the testimony of one of the parties' adult sons.

While a child may [rarely] be called as a witness to testify, they are sequestered from the proceedings.  There is no good reason for a minor child, however, to witness the mud and dirty laundry flung about the courtroom in an ugly divorce proceeding sponsored by her parents.

We hope the family court judges here in Michigan take note of this well reasoned opinion from the Ohio Supreme Court.

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Lawyers Should Not Interview Children in Custody Disputes

Even the thought of some of our colleagues, cornering the little children of their clients in a conference room in order to elicit a parental preference, causes recurring nightmares.  Fortunately, the Michigan Court of Appeals agrees, recently holding that a family court judge cannot order the parents' lawyers to interview their minor children to ascertain their preference among their parents.

Divorce at its ugliest; an old-fashioned custody dispute.  According to the Child Custody Act, the family court must consider all 11 enumerated factors in deciding which parent has custody.  One of the factors is the reasonable preference of the child.

In the Donohue v Donohue case, the Court of Appeals noted that the applicable court rule only provides for family court professionals to conduct such interviews.  The 3-judge appellate panel's opinion stated, "these interviews are meant to be confidential exchanges between the court and the child."

In this case, an Ingham County family court judge grossly misinterpreted the applicable statute and court rule.  Forcing a child to state her preference in an interview with her parents' respective advocates is wrong in the worst kind of way.  No child should have to deal with his or her parents' lawyer.

The intermediate appellate court recognized the potential for influence peddling and the exacerbation of emotional turmoil.  Here at this blog, we saw this case as a "no brainer".  Parental advocates should not be used to determine a child's reasonable preference.

Some tasks, particularly those assigned to the judiciary by the legislature, cannot be delegated to the attorneys.

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When Father is Relegated to the Weekend Parent

By: Timothy P. Flynn

A case that caught our attention from the Michigan Court of Appeals last month deserves mention in this blog.  The case comes from the St. Clair County's Family Court; the family court judge that ruled in Mother's favor to allow a significant modification of the parenting schedule was reversed by the Court of Appeals.

In Burke v Lobodzinski, the family court judge sided with Mother in her petition to modify the child's week-on-week-off parenting schedule, allowing Mother to move with the child from Bay City to Troy.  The parenting schedule was modified so that Mother had the child during the school year and Father had evey-other-weekend.

In doing so, the family court judge was in part swayed by Mother's testimony that the move allowed her to be a "stay-at-home" mom due to her husband's new job.  The effect of the ruling was to relegate Father to a weekend parent.

Even though the move was not more than 100-miles [a statutory threshold], the family court held that it was significant because it involved a change in school districts for the child, and made the alternating weekly parenting schedule untenable.  The lower court concluded the proposed move was in the child's best interests, and Dad lost out.

In reversing the St. Clair Family Court judge, the Court of Appeals was persuaded by two things: a) since the proposed move would alter the established custodial environment of the child, the lower court utilized the lower burden of proof [preponderance of the evidence] instead of the intermediate burden [clear and convincing evidence]; and b) Mother may have provided false testimony about being a stay-at-home mom when, in fact, she was employed as a clerk at the Macomb County Circuit Court.

The burden of proof is significant in cases like this.  Mother's motion, if decided on a preponderance standard, is easier to establish and thus prevail.  If Mother had the heightened burden, the motion is more difficult to carry.

As for lying to the court about her job, that too should be taken into account.  On remand, however, the Court of Appeals noted that the lower court should also take into account the fact that the child was allowed to continue living with her Mother in Troy during the year this case took to decide on appeal.

Custody of our children, much like the possession of chattel, seems to be driven by the age-old principle: possession is nine tenths of the law.

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tflynn@clarkstonlegal.com

Uniform Collaborative Divorce Law Act Passes Michigan Senate

By:  Timothy P. Flynn

Readers of this blog will recognize our commitment to the collaborative divorce process.  Whenever possible, given the circumstances and personal dynamics of the parties, it usually is the best way to go in family court.

The collaborative divorce model is where a married couple meets with a team of family law professionals [case facilitator, family counselor, financial planner] before filing for divorce, hopefully resolving all issues in a signed settlement agreement.  The process is collaborative rather than adversarial.

Across Michigan and our nation, there is a steady and growing movement toward favoring the collaborative model; the adversarial process is being relegated to a last resort.

Over the past four years, the Uniform Collaborative Divorce Law has been sweeping across the state legislatures.  Recently, the Michigan Senate passed the model act, sending it along to the House Judiciary Committee.

Because the collaborative divorce model is so distinct from the adversarial process, the uniform law calls for standards and training for lawyers wanting to add collaborative divorce to their practice.  The bill calls for the State Court Administrative Office to develop the training and lawyer qualification standards called for in the model act.

For its part, the SCAO does not want to be tasked with training the lawyers and wonders how it will pay for training and enforcing the standards.  Unlike the other states that have passed the model act, Michigan would be the only state requiring training standards.

These standards come to us from the Alternative Dispute Resolution Committee of the State Bar of Michigan's Family Law Section.

What is wrong with some additional training for family law lawyers, especially in thrust of the collaborative divorce resolution process.  In our opinion, this is a good law which will hopefully pass through the House and become law.

Divorce needs more collaboration and less opposition.

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Divorce: There's An App For That Too

Were here at the electronic divorce attorney are not big fans of digitizing personal therapy in an app.  Or the divorce process for that matter.

Today's Freep touted the article Digital Divorce, profiling some nifty digital cell phone apps targeting couples going through a divorce.  Ever since a 20-something Minnesota lawyer created a cell phone app 5-years ago that calculates a parent's child support obligation, we've been seeing this kind of thing in droves.

The Freep's Katie Humphrey notes that there are hundreds of divorce-related apps; some of them even aid spouses with cheating hearts.  Go figure.

But just because its now available in an app, does not make the divorce process any easier.  Family law attorneys across Oakland County warn against substituting experience and professional skills with a self-help app designed by a techie with some minimal knowledge of divorce and family law issues.

Given the complexity of relationships and the divorce process, Ms. Humphrey rightly advises caution when relying on an apps for advice and information.  We also agree that most of the divorce-related apps, all with few reviews to offer market insight, are really just digital snake oil.

One of the apps featured in Humphrey's article, "The Grass is Greener" does seem to hold some value.  It is basically a marriage assessment tool, complete with a 39-question quiz spouses take to gain insight into the type of professionals they may need to hire in order to either: a) save their marriage, or; b) navigate the divorce process.

On balance, however, we are not worried that our lawyers will be replaced by apps anytime soon; no sooner than family court judges will be replaced by robots.

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