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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com 
info@clarkstonlegal.com

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. 

www.clarkstonlegal.com

info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

QDRO Specialist A Necessity in Divorce Judgments

When a couple divorces with retirement assets, a special order is needed to divide those assets known as a Qualified Domestic Relations Order or QDRO.  Every employer's plan is different and has distinct and specific requirements for the QDRO.

These specifics have given rise to the cottage industry of the QDRO speacialist: a lawyer that is hired at the time of entry of the judgment of divorce for the sole purpose of drafting the QDRO.

Last month, the Michigan Court of Appeals decided Williams v Estate of Williams, a case involving a very old divorce judgment that affected the retirement benefits of a deceased Ford Motor Company employee.  The Wayne County Family Court attempted to go back over a decade into the past to correct what it perceived as a mistake in the division of the employee's pension, but the Court of Appeals reversed the trial court.

When the employee, the participant, finally retired after 39-years at Ford, the alternate payee on the plan, i.e. the ex-wife, began receiving her portion of the pension.  The ex-wife was designated as the "surviving spouse" in the QDRO, and began receiving the entire amount of the pension despite the fact she never intended on that result.

The judgment and subsequently entered QDRO awarded 100% of the decedent's pension to his ex-wife after the participant's death. If the QDRO had been drafted in accord with the default judgment, the alternate payee's share should have been the same as it was when the participant first entered into "pay status" upon his retirement.

The case is instructive on several fronts:

• The parties to a divorce should hire a specialist to draft any necessary QDROs; 
• Be sure that the language of the QDRO and the judgment of divorce are consistent; 
• If the plan administrator corresponds to the parties through the specialist, do not ignore this correspondence as it could spell doom years, even decades later; 
• Do not attempt to draft a "do-it-yourself" QDRO; and 
• Be careful not to "incorporate" the QDRO into the judgment itself because this will limit your options to correct the problem years later, which is what happened in the Williams case.

Often, when a divorce proceeding is grinding down toward a settlement, the parties take their focus off the specific language of a QDRO.  This is most often a mistake, as the division of the retirement assets is one of the most important aspects of the divorce.

Take care to follow-through with your attorney to accomplish this task.

www.clarkstonlegal.com
info@clarkstonlegal.com

Divorce Judgments & International Child Abduction

Divorce lawyers will be adding additional required language to their judgments of divorce and parenting time provisions dealing with removing minor children to certain countries.

Recent Michigan legislation enacted on January 9, 2013, requires that parenting time provisions, most often found in judgments of divorce when minor children are involved and legal documents required in resolving custody disputes, must contain additional language addressing the prohibition on exercising parenting time in a country that is not in accord with the Hague Convention on the Civil Aspects of International Child Abduction.

The legislation, Public Act 600 of 2012, amends the Child Custody Act, MCL 7.22.27a, and requires the inclusion of specific proscriptions or a written consent by both parents, relative to removing the minor children to a country that has not signed the Hague Convention.   

Divorce attorneys must ensure that their judgments and parenting time documents now contain the required language.  The new required language is a simple addition and addresses a very important, and often overlooked, issue when it comes to parenting time taking place in another country.

We here at the Electronic Divorce Attorney recommend clicking on the following link to obtain more specific language about the Hague’sChild Abduction Section.  For information regarding the signatory countries to the Hague Convention on Civil Aspects of International Child Abduction, check out the State Department website.

If you are handling your divorce or custody case without a lawyer, the State Court Administrative Office (SCAO) website has updated Michigan forms (FOC 67 and FOC 89) that include the newly required language. 

www.clarkstonlegal.com

info@clarkstonlegal.com

Divorce Parties

It doesn't have to be all bad.  According to an article in today's Freep, divorce parties are on the rise, thanks, of course, to the celebrities that have started throwing such events.

Take Detroit's Jack White, for example.  He celebrated his sixth wedding anniversary and his divorce to model Karen Elson.  The lesson here is that, if you can manage it, stay friendly with your ex-spouse.

Once upon a time, our law firm even considered chartering a yacht for a moonlight cruise on the Detroit River for our divorce clientele.  For a variety of reasons, it never happened.  Bet we could have filled-up the yacht though.

Then there's the web site.  Divorce Party Supply invites you to send them your crazy divorce pics to include in their [still under development] photo gallery.  I think I'll pass.

Adopting a positive attitude to cope with one of life's more negative experiences is a good thing.  Staying positive in the aftermath of divorce will get you into the next phase of your life sooner.

The trick is to learn from your mistakes and move on.  And try not to repeat the same mistake twice.

www.clarkstonlegal.com
info@clarkstonlegal.com

Divorce Detox California Style

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

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

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

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

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

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

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

www.clarkstonlegal.com
info@clarkstonlegal.com

False Claims in Custody Battle Will Bite You Back

Written by Family Law Lawyer Amanda Chapman

Let’s face it – it’s no surprise that emotions run high during a divorce where custody of the children is at issue.  With divorce comes uncertainty, and uncertainty regarding where your children will live, and with whom, is a nightmare for most parents.  

Sometimes, when in the midst of doing battle for those that we hold most dear, we think in terms of winning “at any cost.”  But be wary if you find yourself contemplating such thoughts – you may do yourself more harm than good.

To illustrate the point, a recent unpublished Michigan Court of Appeals opinion, Henry. Henry (decided December 22, 2011) involved a divorcing couple, Christine and Doug, and their six children.  The parents were both battling for custody of the children, which resulted in a trial held in Wayne Circuit Court. The trial court was required to contemplate the statutory “best interests” factors, which include making a determination as to the “moral fitness of the parties involved.”

In weighing the “moral fitness” best interest factor, a trial court must determine a party’s fitness as a parent, looking to the parent-child relationship and how that parent’s conduct affects that relationship.  In the Henry divorce, the trial court heard testimony from various individuals who suggested that Christine had filed false reports [involving issues of possible child abuse or neglect] with several professionals and agencies.  Ultimately, the trial court did not find Christine’s testimony credible, as the court weighed more heavily in favor of witness testimony which supported Doug’s claims that the reports were “inaccurate, manipulative, and designed to force additional investigations.

The court, in evaluating the “moral fitness” best interest factor, must determine the effect of a parent’s conduct on the relationship with their child. In this instance, the trial court deemed this factor to weigh in favor of Doug, determining that Christine’s false reports to various agencies “could have a negative effect on the children.”  The Court of Appeals, in reviewing the trial court’s decision, deferred to the trial court, as this was ultimately an issue of credibility.

The moral of this story: don’t make false claims against the other parent in an effort to make them look bad in your custody case. Not only does it waste precious resources for those who need protection, but it might ruin your credibility in the eyes of the Court. 

www.clarkstonlegal.com

info@clarkstonlegal.com

The Grey Divorcee

A recent study published by the Bowling Green State University concludes that divorce has replaced widowhood as the primary reason many seniors are single later in life.  No surprise there, as the United States has long held the highest divorce rate in the world.

As the baby-boomer generation ages, more of its members have been divorced than in any prior generation at any point in history.  Add to this the more complex marital biographies of average baby-boomers [second marriage, recently divorced, ever divorced], and you cannot ignore the growing prevalence of divorce in our society.

The study concludes that as widowhood has declined over the past two decades, the divorce rate among the middle-aged and seniors has doubled.  Also of note in this demographic is that, among divorced seniors, they achieved this status much earlier in their lives than in the past.

Another conclusion drawn by this study is that over the next two decades, as the growth of the "older" population accelerates, so will the divorce rate among mature adults.

One option to consider is separate maintenance.  This option, although not for everyone, has the advantage of allowing an unemployed spouse to maintain health insurance coverage.  In most cases, this saves the unemployed spouse approximately $500 per month by not having to  pay an insurance premium.

If you are over 50 and facing the tough options of divorce in Oakland County, contact us for a free consult. We can  provide you with answers to your questions and concerns.

www.waterfordlegal.com
info@waterfordlegal.com

Should Your Divorce Go To Trial

Yesterday, I was sure that I was going to spend the entire day in a divorce trial; my first in a quarter century of practice. Didn't happen.

Why? Because trial in divorce rarely makes sense. This case, in Genesee County, had it all: a GAL for the minor children; a joint bankruptcy in the middle of the proceedings; two [failed] mediation sessions; motions from each side, jousting for the entry of temporary support and parenting orders.

The case was positioned for trial because both sides held onto rigid positions on many of the issues important in any divorce proceeding: custody, parenting time, child support, alimony and debt apportionment. My law clerk, a third year student at Wayne State, prepared an excellent trial brief; she had compiled a trial notebook, and we were prepared and ready to go.

As the case was the oldest on Judge Kay Behm's docket [18-months], I knew it was going to resolve one way or another.

The case did resolve, after 8-hours in the courtroom, because each of the parents made common-sense, strategic compromises. In the end, the parents each looked past their own personal wounds, and their self-centered agendas, and took into account the best interests of their minor children.

Don't get me wrong, I would rather conduct a trial than spend the entire day as I did yesterday, painstakingly going over, discussing, negotiating, and resolving every aspect of a failed marriage and the flotsam that goes along with it. But as a divorce lawyer, I keep the best interests of the client in mind. Trial almost never makes sense.

So it may be that when I finally retire, I will have never conducted a divorce trial. Actually, that is a client-service goal of mine.

www.waterfordlegal.com

info@waterfordlegal.com

Narcissus Gets A Divorce

Narcissus admires his reflection.

In my decades of divorce practice, I've encountered folks who, if a psychological evaluation was completed, would be characterized as having narcissistic personality disorder.  A few of these peeps have been clients; others have been on the opposing side.

Either way, everyone involved is in for a rough ride.

Over the past several years, "narcissism" has also taken on a connotation-du-jour.  The diagnosis being made by dime-store psychologists (i.e. parties to family court litigation) whenever the object takes an opposing or contrary view. 

What is narcissim, really?

According to the Mayo Clinic, narcissistic personality disorder is "characterized by dramatic, emotional behavior, which is in the same category as antisocial and borderline personality disorders."   A person with this personality disorder may exhibit some of the following characteristics, according to the Clinic:

• Believing you are better than others;
• Fantasizing about your success, power and attractiveness;
• Exaggerating your achievements or talents;
• Expecting constant praise and admiration;
• Ignoring other's feelings and emotions;
• Believing and acting like you are really, really special;
• Taking advantage of others;
• Expecting others to go along with your often super-sized schemes and plans;
• Exhibiting jealousy toward others;
• Believing others are jealous of you;
• Unable to maintain healthy inter-personal relationships;
• Easily hurt or rejected;
• Fragile self-esteem

If you know someone with more than a few of these traits, run.  If you are married to such a person, get ready for the inevitable divorce proceeding when you finally throw in the towel, realizing that your spouse will never change. 

If you are a lawyer representing such a person, affix your chin strap and bring a lunch.

In the divorce context, the narcissist fares quite poorly.  The above-listed features of this personality disorder are routinely identifed and rigorously addressed by family court professionals. 

In this process, the personality flaws of the narcissist are forced itno the lab for a full-on forensic evaluation.  Many of the tools in the family court professional's arsenal will be brought to bear upon the conduct of the narcissist in an effort to force short-term modification, and to achieve a stable platform.

Some red flags that I've gleaned over the years: a narcissist will change lawyers often, blaming the status of the case on the mistakes of prior legal counsel.  Also, the register of actions in the case of a narcissist will often be a mile long, peppered with hearings, motions, and more hearings.

When a narcissist is embroiled in a divorce proceeding, the children are used as pawns.  Any input from the Friend of the Court [either via a referee, family counselor, or social worker] or from a therapist, is rejected; the narcissistic parent must be dragged to court, kicking, screaming and cursing.

In the years leading up to such a divorce, the other spouse will often report being chronically verbally abused and bullied by the narcissist.  In fact, this dynamic will set the initial tone of the proceeding.

The process will next feature a series of attempts, which will take some time, where the professionals try to arrest the insidious and pervasive conduct of the narcissist.  Arrest, but not change; this person will not change.

The other spouse many times will exhibit classic signs of emotional abuse during this painful process: low self-esteem, exhaustion, a desire to give up or give in.  This person needs a strong focused divorce lawyer.

And counseling. 

During the divorce process, the other spouse is well advised to minimize the face-to-face contacts with the narcissist.  If children are involved, then communicate through emails and texts. 

If you feel threatened at home or during parenting exchanges, seek exclusive use of the marital home.  If you are separated, use a neutral transition point for the parenting exchanges; most family court judges will grant such a request simply to err on the side of everyone's safety.

Finally, stay focused on the process knowing that the process will eventually come to an end.  The Michigan Supreme Court has mandated that county family courts conclude divorce proceedings within a year.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Valid Prenuptial Agreements Require Full Asset Disclosure

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts.  Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.

A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties.  This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals.

The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court.  The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.

The contract at issue in the Waller case waived the Wife's interest in a statutory share of her husband's estate in favor of the Husband's adult children.  The Wife challenged her Husband's estate at his death, despite her execution of the antenuptial agreement.

The contract was upheld by the probate court judge.  In reversing the probate court, the Court of Appeals focused on the asset disclosure and lack of evidence that any proper disclosure had been made by either party:

Accordingly, fair disclosure is required  under statute and caselaw in the context of
determining whether a prenuptial agreement can be deemed valid and enforceable.  The record
indicates that there was no formal disclosure of assets by either decedent or Waller at the time of
or before the execution of the  prenuptial agreement, such as through the presentation or
exchange of written asset lists or through a verbal communication or declaration electronically
recorded so as to preserve proof of disclosure.  The prenuptial agreement itself did not contain an itemization of assets and values,  nor did it indicate that disclosure of assets had taken place.
Indeed, there is no evidence of even an informal, off-the-cuff discussion between Waller and
decedent regarding the nature, extent, and value of each other’s assets prior to the execution of
the agreement.  The probate court essentially found that Waller was sufficiently familiar with the
assets held by decedent, making it unnecessary for decedent to redundantly disclose his assets to Waller before the agreement was signed, where  the assets had already been effectively
“disclosed” to her simply through the evolution of their relationship in which familiarity with
each other’s property naturally occurred.  We agree with the principle that if a party challenging
a prenuptial agreement was fully aware of the other party’s assets and their value at the time of
execution, an argument that there was a failure to fairly and formally disclose assets should fail;
the purpose of a disclosure is to make a party  aware of what he or she may be giving up in
signing a prenuptial agreement.

The Court of Appeals held that under such a record, the (rebuttable) presumption of non-disclosure should have been applied to invalidate the prenuptial agreement in that case.

Also, the Court of Appeals placed significance on the lack of a financial statement or schedule of assets.  These are typically attached to the antenuptial agreement.  This way, there can be no claim, as in the Waller case, of a failure to disclose, or a triggering of the presumption of nondisclosure.

www.clarkstonlegal.com

info@clarkstonlegal.com

Six Holiday Tips for Divorced Parents

Often, tensions escalate over the holidays as divorced parents struggle with the demands of scheduling the children to accommodate two households.  Holiday schedules are already difficult without the complications of a divorce judgment or divorce proceeding.

Here are some practical tips in dealing with holiday parenting time gleaned from divorce lawyers around the state.

1. Reduce an alternating holiday schedule to a court order.  It is always best for the children when the parents can agree on a schedule.  Alternating holidays is most common when drafting the parenting schedule.  When both parents live close to one another, many families utilize a shared holiday model where the children spend time with one parent until noon, and the other  parent for the balance of the day; then the next year, they switch.  This works for Thanksgiving, Christmas, New Year's Day and other holidays.  
2. Discuss the schedule with the children.  One solid co-parenting tactic is for both parents, once an agreement is reached, to communicate the schedule to the children.  This way, the children know in advance what to expect.  This can best be accomplished when both parents commit to rational communication and reasonable compromise for the children's sake.
3. Keep the activities simple.  This tip is particularly essential when the children are relatively young and if the divorce is still fresh.  The wounds of the once-whole family have yet to heal; holidays are particularly painful for both children and parents.  Therefore, it makes sense to tone down the activities and avoid rushing hither and yon during your now-scheduled parenting time.
4. Let your child express her feelings to you.  It is important to allow your children the opportunity to express their feelings of loss and disappointment and for you, as the parent, to validate those feelings.  What the child once experienced as an intact family unit has been fractured by divorce.  Therefore, pretending that everything is fine, or over-scheduling a whirlwind of activities to the point of distraction, will only add to the stress of your holiday parenting time.
5. Involve your extended family.  The more love the child feels during the years immediately following a divorce, the better.  Therefore, schedule some quality family time with members of your extended family.  Certainly, this would be a great opportunity for your children to spend time with their grandparents, aunts, uncles and cousins.  If your extended family is highly dysfunctional then, er, not-so-much.  
6. Avoid including a new "significant other".  This is the last thing you want to do at the holidays; not the time or the place.  Including your "significant other" too soon is a selfish thing to do to your children.  Upon reflection, you would probably agree that you would be doing that for yourself, certainly not for your children.  Children of divorce already struggle with guilt, a sense of loss, and insecurity.  They often perceive the introduction of a stranger, especially one that is close and intimate with their parent, as a threat, not a benefit from their parents' divorce.

Of course, the above holiday parenting tips must be adjusted to be age-appropriate.  There is no one-size-fits-all approach to this touchy subject.

Finally, a positive parental attitude over the holidays does wonders for a child's comfort and confidence.  Be the adult, not the child.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

High Income Child Support

In 1988, the federal Family Support Act required all states to enact presumptive child support "guidelines" in order to preserve federal funding on a variety of family-oriented programs.  Since then, Michigan has adopted the Michigan Child Support Formula.

In response to the Act, some states adopted support formulas that "top-out" for high earners.  Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support.  Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning families, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth.  This is particularly the case where the high income is short-lived; like with most professional athletes.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support.  Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households.  These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

But what really is in the best interests of little "Richie Rich"?  Some of life's best lessons are learned with less, not more.

www.clarkstonlegal.com

info@clarkstonlegal.com

Post-Divorce Nesting

This week in Time Magazine, there is a story in the "Society" section about a mode of parenting known as, "Nesting".  This is where divorced parents each secure a residence beyond the former marital home; the couple's children remain in the marital home, to "nest".
The theory behind nesting is that it seeks to minimize the sense of upheaval that children of school age often experience during and after their parent's divorce.

Time's Belinda Luscombe speculates that the nesting mode of post-divorce parenting has emerged over the past decade as an innovative version of co-parenting.  It remains rare, however, to get both parents on the same page be able to pull it off.

In the past decade, I have completed nearly 250 divorces and only two of those featured a nesting arrangement.  Of those two cases, one of nests was destroyed, via foreclosure.

On the other hand, the difficult real estate market has forced many divorcing couples to hang onto their former marital home; like it or not.  Nesting would seem to be a viable option.  Usually, however, one of the parents "takes one for the team" and remains in the marital home, or the couple "walks away" from the home to begin their new post-divorce lives under the cloud of foreclosure.

Proponents assert that the nesting arrangement eliminates the continuous shuffling between two homes by the children that comes with a traditional parenting schedule; the parents do the shuffling in a nesting arrangement.  Also, for children of a certain age, the arrangement allows them to continue living and going to school in a familiar environment, their childhood home, while they adjust to their parents' divorce.

Most family court judges look upon nesting arrangements with a certain degree of skepticism, if not outright scorn.  In family court, however, parents are free to make whatever arrangements they desire so long as the judge can be convinced it is in best interests of the children involved in the case.

As a temporary post-divorce parenting technique between two cooperating amiable co-parents, nesting can work.  It very well may provide the minor children with a better opportunity to adjust to the strains of divorce.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

When Children Live with a Child Murderer Endorsed by the Family Court

A very worried Trisha Conlon

This bizarre family law custody case is playing out in Seattle, WA.  The unusual facts of the case bring into sharp focus the challenge of putting parents' often-questionable decisions through review by a family court judge.

In 1995 Trisha Conlon married Marine fighter pilot John Cushing, Jr.; a man with a tragic past.  His ex-wife, Kristine Cushing, shot to death their two young daughters, 4 and 8, while they slept in their Southern California home.  This was in 1991, when Mr. Cushing was on active duty in the Marine Corps and Mrs. Cushing, by all accounts, was an ideal soccer Mom.

Kristine Cushing's murder trial featured the now infamous "Prozac Defense"; she was found guilty by reason of insanity and sentenced to a mental institution where she did a nickle, followed by a decade of intensive in-patient style psychiatric treatment.  She was discharged without restriction in 2005.

Meanwhile, John Cushing tried to put the pieces of his life back together.  He married Trisha Conlon, with whom he had two sons.  Sadly yet predictably, the couple divorced in 2004.  Mr. Cushing's next "life-choice" was to re-marry his first wife, Kristine Cushing, the now-excused infanticidal murderess.

Today, Lt. Col. Cushing (retired) lives on Vashon Island, WA with a split-custody arrangement whereby one of his sons lives with him; the other lives with Ms. Conlon.  The brothers reunite during holidays and vacations.  Under this custody arrangement, Conlon eventually became aware that her ex-spouse not only re-married his first wife, but also shared a marital home with her and Conlon's son.

This information was difficult to come by as Mr. Cushing attempted to conceal his family arrangements.  The distance between the two parents provided the necessary cover.  Ms. Conlon, now living in Oregon, resorted to her family law attorney and his private investigator.

Seeking a change in custody to place her son into her home, Conlon brought proof of the Cushing reunification to the attention of the family court in King County, Washington (Seattle), arguing the arrangement was a "change in circumstance" detrimental to her son's best interests.  She lost her case last month; a hearing on appeal is set for next week.

This case is a testament to the lengths people will go in the name of love, marriage, and progenitorship. Many, perhaps most of us, would not make the same decision as the Lt. Col. in this case; infanticide is just a flat-out "deal-breaker".  On the other hand, imagine the love and forgiveness Cushing must have for his first wife to be able to take such a risk.

To the extent that his decision has placed his son in harm's path, it will be up to a family court judge of the King County Superior Court in Seattle to determine what is best for the boy under its jurisdiction.

www.clarkstonlegal.com

info@clarkstonlegal.com