Adultery in the Marital Bed

Always poor judgment, sometimes an adulterous liason makes it into the marital bed.  If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT.  The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books.  Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson.  That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony.  The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

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Michigan Supreme Court Affirms Father's Child Support Obligation Even When Parental Rights Terminated

There has been some buzz among family law practitioners this week concerning the Michigan Supreme Court's decision in the DHS vs Beck case.

Earlier this year, we posted on the Michigan Court of Appeals decision that held a father, whose chronic drugging resulted in the complete neglect of his children and termination of his parental rights, nevertheless remained obligated to pay child support for his two children.  The published Court of Appeals decision was just affirmed by the Michigan Supreme Court.

This case arose from the Oakland County Family Court; it was Judge Martha Anderson that initially terminated Mr. Beck's parental rights.  Both parents had been abusing drugs so their two children were placed with grandparents.  For her part, the mother  got straight, and otherwise complied with a DHS parenting plan; she now has the children.

The Supreme Court's Beck decision is remarkable in that it is the first decision to be issued by the Court in the current term.  Also, although the decision affirms the holding of the Court of Appeals, it does so on grounds different then those relied on by the intermediate appellate court.

The father in Beck did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children.  On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments).  Like the intermediate appellate court, the Supreme Court was not convinced, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court analyzed the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments.  Michigan common law has long established a minor child's right to support from both parents.  The appellate courts also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In affirming the Court of appeals, the Supreme Court not only separated parental "rights" enumerated in the juvenile code, from the duties set out in the Child Custody Act, it also held that parental rights contained in the Custody Act were distinct and thus independent from the duties created by that same Act.

Of note in the dicta of the Court of Appeal's decision was an express acknowledgment of the current "times of difficult financial circumstances."  The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

This is the right decision.  If getting high is more important to a father than parenting, the rest of us should not have to pick-up the slack for that father and supply public benefits for such a man's children.  He should pay as well, even if he can no longer see his children.

Such are the choices we make in life.

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Child's Aging Held to be Sufficient Change of Circumstance to Justify Parenting-Time Modification

Very recently, the Michigan Court of Appeals published their decision in the parenting time modification case of Shade v Wright.  That case, and its effect on our "family law" jurisprudence, is the subject of our fellow Oakland County law blogger, Cameron Goulding, Esq.


Cameron produces the North Oakland Divorce Blog.  This post is his original content; thanks Cam.


Altering child visitation time (technically parenting time modification) just became easier in Michigan. Many judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things. 

There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this issue directly. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010) which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody. 

This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue. 

In the Shade v Wright case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Shade v Wright is binding precedent.

Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed. One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent.


Cameron's email: goulding@camerongoulding.com

Bankrolling the Divorce Settlement

We've all heard about lenders that specialize in loaning to personal injury plaintiffs in advance of their settlement. These firms front the money to the plaintiff, at a significant discount from the amount expected to be realized in the ultimate settlement.

This same princple is being applied to divorce judgments.  Get your money now and your divorce later.

Mind you, this is not for folks with middle-class marital estates.  Rather, this brand new industry is developing on the left and now the right coasts for married couples that have estates north of 2 or 3 million.

For example, Balance Point Divorce Funding of Beverly Hills, CA was started last year by an attorney, Stacey Napp, with funds she obtained from her own divorce.

In New York City, it looks like it's going to be Churchill Divorce Finance; a firm gearing-up for a mid-winter opening with the promise of, "leveling the legal playing field."

Each of these lending firms will specialize in lending money to parties involved in divorce who are expecting to walk away from court with a fair amount of hard cash; millions in fact.  Hard to believe here in Michigan, but those folks are out there.

One advantage of such firms is the ability for a "non-earning" spouse to obtain money in order to pay lawyers and forensic accountants to go after hidden assets, or "cooked" books in the family-owned business.

For others, it's simply an opportunity to get the money now in order to fuel that new, post-divorce lifestyle.  In  many cases, a little money up front goes a long long way.

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Overreaching, Post-Divorce Style: Michael Douglas' Ex Demonstrates "Greed is Good"

Michael Douglas divorced his ex-wife, Diandra, in California back at the turn of the century.  She reportedly received $45 million as well as rights to half Douglas' earnings from the "spinoffs" of his completed movie work.

Demonstrating the chief principle from Douglas' hit movie Wall Street, that "greed is good", Diandra filed suit in Manhattan last summer seeking half the actor's royalties from the reprise of Douglas' character, Gordon Geckko. A Manhattan Supreme Court Judge dismissed the case on procedural grounds, finding that venue was improperly laid.

The judge got it right.  Diandra's rights to Douglas' earnings would come from the terms of their divorce decree rather than a separate cause of action filed in another state.

Here at the Law Blogger, we have to wonder why Diandre's attorney advised her to file in Gotham rather than California.  The reason stated in the pleadings was that both parties currently reside in New York.

Procedural defects aside, Douglas' lawyer asserted that Diandre was not entitled to any of Douglas' earnings from his new movie to the extent they are derived from a "sequel" to the original movie and thus does not qualify as a "spinoff", as referenced in the divorce judgment.

Sequel vs Spinoff?  Sounds like Diandre's lawyers have twice let her down...

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Macomb Woman Obtains Divorce from the Grave

In a recent case originating from Macomb County, the Michigan Supreme Court held that a woman, scorned by her long-time but absentee husband, could effectively divorce him from her grave. The case, Tkachik v Mandeville, reversed the Court of Appeals' decision that ruled she could not do so.

In this case, the wife became ill and died of breast cancer after nearly three decades of marriage. Although the long-married couple was estranged at the time of wife’s death, they never filed for divorce or legal separation (known as separate maintenance in Michigan).

Because her husband had abandoned her during the 18-months she battled breast cancer, the wife executed a trust and will which left him nothing and appointed her sister as personal representative of her estate. At the time she died in 2002, the wife had spent years maintaining the “marital home” as well as a vacation property near West Branch. She paid all the property-related expenses without contribution from her husband.

Six-months after his wife’s death, the husband filed a petition in the Macomb Probate Court to set aside his deceased wife’s will and trust and to remove the cloud his wife placed on their marital properties. In the resulting probate court battle, the wife’s sister, relying almost extensively on out-of-state caselaw, asserted equitable contribution and abandonment theories, arguing that allowing husband to posthumously reap the benefits of his deceased spouse’s labors amounted to an unjust enrichment.

The sister was granted summary disposition and the Husband's challenge to his deceased wife's will and estate plan was thrown out of the Macomb County Probate Court.  In doing so, the probate court made a finding that Husband should not be considered a "surviving spouse" because he had abandoned his wife for more than a year.

Next, the sister went on the attack, suing her former brother-in-law on behalf of her sister's estate and seeking a determination that the probate court's finding (i.e. that Husband was not a "surviving spouse") destroyed the "tenancy by the entireties"; the mode of ownership of the former marital home.

When that didn't work, the sister amended her complaint to seek contribution from the Husband for Wife's sole maintenance of the properties.

The Court of Appeals was not persuaded by the sister's legal arguments in equity, deciding that a married person cannot execute an estate plan that effectively acts as a “posthumous divorce”. The appellate court’s ruling emphasized the sanctity of marital property intact and declined to “invent a claim” from which a decedent spouse can reach her surviving husband from her grave.

In reversing the intermediate appellate court, the Supreme Court extended the doctrine of contribution to find Husband liable for his portion of the maintenance of the property.  The high court was persuaded to fashion an equitable remedy where Sister had no remedy at law.

Essentially, the Supreme Court found that Husband had been unjustly enriched by reaping the benefits of his wife's maintenance and improvements to the properties, while contributing nothing.

The case is illustrative of how our court system processes a case.  The initial decision is never final.  In this case, the sister's case went all the way to the Michigan Supreme Court; went back down to the Court of Appeals for an opinion after that court passed on the case; then went back up to the Supremes.

After its epic journey, this case is binding common law and will determine the result for other subsequent and similar cases.  Lesson: if your spouse abandons you with ongoing obligations, he or she may be liable, either in family or probate court, for past maintenance and the cost of  improvements on an equitable contribution theory.

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Cheating Spouse App Gets Pulled by Droid

A controversial new application for Motorola's popular Droid phone has apparently been pulled before it had a chance to hit the cell phone application market-place.

The idea behind the "Secret SMS Replicator" application is to forward text messages from the target phone to a designated phone.  What's more, the application on the target phone is invisible and cannot be detected.

Similar applications have failed Apple's application store approval process.  In the case of the SMS Replicator, Google said the covert application violates the "Android Market Content Policy."

Just because this application did not make it to market does not mean it won't be applied.  The technology is available to those who do not mind installing rogue applications.

In Michigan, it is illegal to download the emails of another person without permission by using spyware and keystroke programs.  These products, however, remain on the market.

Perhaps the best policy if you are in a marriage or a committed relationship is to stay faithful.  On the other hand, if you believe your spouse or significant other has strayed, or is thinking of doing so, it may be time to move on through separation or divorce.

Often, a cuckholded spouse feels the need to acquire rock-solid proof of infidelity. Sometimes, this is sound pre-divorce strategy. Getting the goods on your significant other, however, should never come via breaking the law.

Good luck out there!

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