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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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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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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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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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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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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Stepparent Adoption Complicated by Legal Custody Label

By: Amanda Chapman

About one year ago, the Michigan Court of Appeals recently gave us one more reason to care about legal custody when negotiating a divorce with minor children.  During the divorce process it is often difficult for those involved to consider the future and a possible remarriage down the road. 

If we are lucky, cupid strikes again, resulting in a second or third nuptials. Sometimes these marriages result in the progression toward stepparent adoption of their spouses’ children.  

The lesson learned by this recent Court of Appeals case, In re: AJR, Minor, is that an award of joint legal custody in a divorce judgment may result in a more complicated legal process down the road in the event that a stepparent wishes to adopt the child of their spouse.

In this case from Kent County Circuit Court, a father’s parental rights were terminated under the stepparent adoption statute [MCL710.51(6)] on the basis that father had failed to comply with a child support order and had neglected to visit his child during the previous two years. 

The Michigan Court of Appeals reversed the family court’s decision by determining that the stepparent adoption statute does not apply when the parents have joint legal custody.  It turns out that father was awarded joint legal custody of the child in the divorce judgment, thus having a say in the proposed adoption proceedings.  

Mother was awarded joint legal custody and sole physical custody, relative to the biological father. Mother then remarried and was hopeful that her new spouse could adopt her child.  The biological father refused to consent or agree to the termination of his parental rights in order to facilitate the stepparent adoption. 

When the Circuit Court granted the stepparent adoption, terminating father’s rights despite his previous award of joint legal custody, father's appeal was successful.  Our intermediate appellate court held that the statutory language of the stepparent adoption statute:

[i]s to be construed as requiring the parent initiating termination proceedings to be the only parent having custody…the rights of a parent who maintains joint legal custody are not properly terminated under [the statute].  [Emphasis and brackets supplied.]

Now, the case is being considered on further appeal by the Michigan Supreme Court; oral arguments took place last fall and a decision by the High Court could come at any moment.

The takeaway for parents who are going through a divorce with minor children is to make sure that your divorce decree addresses legal custody.  You never know what the future will bring, but it is folly to open the door for a possible parental rights termination proceeding in the event your former spouse remarries.

Post Script:  In June 2014, the Michigan Supreme Court affirmed the Court of Appeals ruling in this case thus, it is now more important than ever to take custody into account when negotiating a custody judgment in family court.  

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Conscious Uncoupling in Los Angeles

Gwyneth Paltrow: Recently
and Consciously Uncoupled.

Among some of the more enlightened Hollywood luminaries, it's not a divorce; it is a "conscious uncoupling".  This is the term veteran actress Gwyneth Paltrow used on her website this week to announce the split with Chris Martin, her rocker-husband of more than ten years.

This, er, somewhat New Age phrase is the kinder gentler term for divorce.  Pop-psychotherapist and author Katherine Woodward Thomas takes credit for coining the phrase.  In fact, Ms. Thomas claims that she purchased the URL for this catchy term immediately upon hearing it for the first time in a discussion about a friend's divorce.

The catch phrase sounds like a synonym for "collaborative divorce"; a commonly-used phrase in the modern divorce industry.  Apparently, the idea behind a conscious uncoupling is that the parties simply agree to part ways amicably, using child-friendly low-stress tools.  Precisely the idea behind a collaborative divorce.

The collaborative divorce process involves sitting down with a psychologist or marriage counselor, a collaborative lawyer, and perhaps a financial consultant  -not necessarily at the same time-  to identify and resolve issues prior to subjecting the family to the jurisdiction of a family court with its deadlines and powers over purse and person.

On the West Coast, there are a few pop-professionals making a buck from the process.  Ms. Thomas is among them, offering a 5-week "conscious uncoupling" course on the Internet for nearly $300.  When Ms. Paltrow's announcement, and now the "conscious uncoupling" phrase, went viral, she credited her own holistic doctor rather than Ms. Thomas; a lapse pointedly noted by the psychotherapist in the interview she gave to the NYT.

A low-stress divorce, by whatever name, is a worthy goal.  But buyers should beware before spending money on a web-based course taught by someone with a track record of failed relationships.

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Family Court Judge Denies Divorce

Family Court Judge Edward Garrison

This one comes to us from Southern Florida, courtesy of our blogging friend, Jeanne Hannah.  A family court judge in Palm Beach County took a divorcing couple to task in a tersely-worded opinion, ordering the couple to remain married and refusing to grant the requested divorce.

Why? You ask.  After a two day trial in November during which both husband and wife testified as to significant unreported income, cooked business books, hidden assets, re-titling assets in other family members' names and other mutual marital misdeeds, Judge Edward Garrison wanted to jail the couple but could not, being only a family court judge and not presiding over a criminal case.

Apparently, in denying the couple's prayer for equitable relief, the good judge also sensed that he was being played.  The court assessed the joint demeanor of the couple as being indicative of an intact relationship.

Perhaps the judge sensed that the requested divorce was simply another ruse by the couple to defraud their creditors and business associates.  So Judge Garrison refused to divorce the couple, laying down a ruling believed to be the first of its kind in an American family court:

This Court is unable to impose the appropriate remedy for the parties since this is not a criminal court, but, if the appropriate agencies do not read the transcript, or if the indictments are slow in coming, perhaps the parties may remain out of jail long enough to raise their fifteen year old daughter to the age of majority.  For now, the only appropriate remedy is for them to remain married to each other.

The divorce request in the Husband's chief complaint: Denied.  The divorce requested in the Wife's counter claim: Denied.  Husband is appealing the court's decision.

This case is truly a first in the annals of American Family Law.

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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.

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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.

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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.

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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.

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Same-Sex Divorce

With all the attention that same-sex marriage has garnered over the past few years, could the focus on same-sex divorce be far behind?  The divorce cases, with their attendant issues, are just beginning to manifest.

The problem for many same-sex married couples that hit the skids is that, when they move to states that do not recognize their same-sex marriage, they cannot get divorced in that state.  At that point, they face a series of undesirable options: moving to one of the 14 states that recognize same-sex marriage to secure a divorce, staying in an emotionally unhealthy relationship, or informally deconstructing their marital estate and family.

Recently, we spotted an article in the NYT featuring just this problem for a couple in Mississippi.  The couple was married in California -a state that, through much blood and sweat, recognizes same-sex marriage post-Hollingsworth.  While the Sunshine State allows non-residents to prosecute a divorce by waiving the six-month residency requirement, the couple would not likely have the important issues of custody and property division resolved in their judgment of divorce; they wind-up with a piece of paper but not any peace of mind.

One option they apparently missed was the preparation and execution of a prenuptial agreement.  These agreements operate as binding contracts which can then be enforced in many states.  Whether such a contract would have been enforceable in Mississippi, however, remains to be seen.

These and similar issues can be expected to surface more frequently as same-sex marriages become more common and, as such marriages inevitably fail.

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High Conflict Divorce Brings Down State Treasurer

Former Mich Treasurer Andy Dillon

This was certainly in the works since last summer.  Michigan Treasurer Andy Dillon resigned yesterday in the wake of continuing media scrutiny of his high-conflict divorce.

Dillon, a Democrat, was appointed as our state treasurer in 2011 by Republican Governor Rick Snyder. The appointment won Governor Snyder high praise for crossing party lines in the spirit of collaboration.

Too bad Dillon could not apply the same spirit of collaboration to his divorce dispute.  In August, after an alleged alcohol-fueled argument with his ex-wife at their former marital home in Redford, MI, the family court litigants filed competing petitions for personal protection orders.

The affidavits attached to those petitions do not paint a pretty picture of Dillon as a family man.  In the end, the Dillons' competing petitions wound-up in the lap of the Wayne County family court judge assigned to their divorce proceeding; the judge denied both petitions, opting for a mutual restraining order.

We here at the electronic divorce attorney prefer to handle divorce via the collaborative model.  This is where both parties consult their lawyers, a family therapist or counselor, and perhaps a financial advisor prior to filing a divorce proceeding.  The idea is to agree on all the issues after a thorough out-of-court vetting with professional input, sign an agreement that memorializes the understanding of the parties, and then file for divorce only when the entire matter is wrapped-up.

Unfortunately, the collaborative model does not work for all couples.  Had Andy Dillon been able to deploy this model, he may still be our state treasurer instead of resigning in disgrace.

If you or a family member would like to learn more about the collaborative divorce method, contact our law office for a free initial consultation.

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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.

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Same-Sex Divorce Could Require Moving Out-of-State

When our SCOTUS recently struck-down the Clinton-era Defense of Marriage Act, and also held that California's prohibition on same-sex marriage was unconstitutional, proponents of same-sex marriage understandably hailed the decisions as a victory.  Now that the dust has began to settle in these seminal cases, some of the fall-out is going to affect the inevitable divorce proceedings arising from failed same-sex relationships.

The corollary to same-sex marriage, however, is same-sex divorce.  In some cases, when a same-sex couple is married in one of the dozen jurisdictions that recognize same-sex marriage, then moves to a state that does not recognize such nuptials, difficulties arise when the relationship fails.

This is because when you are a same-sex couple, you cannot just get divorced in a state that does not recognize same-sex marriage.  And most states that do recognize same-sex marriages require a minimum residency requirement from 6-months to a year.  Sometimes, moving to another state simply to get a divorce is not a viable option.

Once a same-sex couple splits-up without a divorce certificate, remarriage becomes a legal impossibility.  Bigamy is a crime in all states; you cannot be married to two persons at once.

This common problem highlights one of the major difficulties in the lag between states that recognize same-sex marriages and those that do not recognize such relationships.  Although the federal government must recognize same-sex marriages for purposes of benefits and entitlement  programs, it is state laws that control who is, and who is not, legally married.

Divorce, already a daunting prospect for both heterosexual and same-sex couples alike, is made more difficult without clear legal exit strategies.  Today, Wyoming is the only state that does not recognize same-sex marriages, but will allow a legally married same-sex couple to get divorced.

A pair of same-sex divorce cases in Texas, where the Texas Attorney General is opposing such divorce proceedings, are grinding through that state's appellate courts and could provide the opportunity for the SCOTUS to build on its ground-breaking decisions from last term.

But all that is a long-way off for same-sex couples whose relationships have failed.  The bottom line is that same-sex marriages are not treated the same as traditional couples; it will likely take generations for that to occur.

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Collaborative Divorce Software

Michelle Crosby of Wevorce

The collaborative divorce method is where a married couple, either by themselves or with the assistance of professionals, agree upon the terms of their divorce judgment prior to filing for divorce.  The theory is that, without the adversarial pressures of the family court and the "system" [i.e. Friend of the Court], these parties are free to explore and negotiate options that make sense for them, not the Court and the lawyers.

Professional assistance usually takes the form of divorce lawyers, counselors, church leaders, and now, specialized collaborative divorce software known as Wevorce.  This West Coast start-up was founded by Michelle Crosby, a product of the old-school divorce process.  Introducing her divorce tool product on the company website, Ms. Crosby tell us that her parents waged a 15-year war over her parenting time.

According to the ABA Journal, the "up-front" cost to purchase the software for a family is about $6500; many individual spouses would spend north of $5000 on divorce lawyers, each, depending on the case.

The idea behind the cloud-based software, not yet available here in Michigan, is to prompt the divorcing couple to "populate" their divorce documents with customized and customizable clauses on the usual divorce issues of child custody, support, parenting time and division of the marital estate, both assets and debts.  The philosophy embedded into the software is taken from the collaborative divorce process: discuss and negotiate prior to a formal divorce filing so that when the official pleadings are filed, it's already a "done deal", presumably with a signed settlement agreement or judgment of divorce.

While the price and the process sure is alluring, it is not for everyone.  Some couples will not be able to put their deep-seated differences aside to accommodate this software any more than they can sit through a series of marital counseling sessions.

It is nice, however, to have a collaborative model available to those couples that do not wish to spend the children's college savings on attorneys.  We shall see whether the Wevorce software ever becomes available here in Michigan.

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Sex Change Does Not Invalidate Divorce

Of course, this case comes to us from Ann Arbor.  Last month, the Court of Appeals decided a divorce case involving gender reassignment in a published decision.

In the case of In re Estate of Burnett, a couple had been married when Husband underwent gender reassignment surgery and became a woman in 2003.  His Wife, who had apparently supported the M-T-F gender change, subsequently became incapacitated.  Her children obtained a guardianship and conservatorship over their mother due to her dementia and filed for divorce on her behalf.

Doing some forum shopping, Wife's children, as her guardians, first tried to file the divorce proceeding in Pennsylvania but they were rebuffed.  Although the couple was married in Ann Arbor in the mid-1980s, they had lived in Philadelphia until Wife returned to her daughter's home in Washtenaw County back in 2006.

Defendant-Husband argued before the Washtenaw Family Court that his gender reassignment rendered the marriage invalid as between a same-sex couple; Michigan outlawed same-sex marriages in 2004 by an amendment to our constitution.  Husband also tried to get the divorce proceeding thrown-out on the grounds that a fiduciary could not file for divorce on behalf of a ward.

The family court judge denied both motions for summary disposition, ruling that the couple had entered into a valid marriage contract back in the 1980s, not a same-sex marriage contract.  The Court of Appeals upheld the decision, stating:

We likewise reject Defendant's argument that his alleged post-operative status somehow magically dissolves what was otherwise a valid marriage.

Nor did the Court of Appeals see grounds for an annulment of the Burnett marriage.  Simply, Husband, even though now a woman through surgery, is out of luck.

In the meantime, Wife has since passed away so the case now has merely symbolic and precedential value.  Even if the United States Supreme Court were to recognize same-sex marriages this spring as a component to our constitutional rights to privacy and liberty, the result in this case would be the same.  As noted by the Court of Appeals, the unilateral acts of one spouse cannot render a valid marriage invalid.

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