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Holland, MI
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Federal and State Credit Regulations

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Collections Lawyer

PROHIBITED ACTS

Many laws regulating collections do not apply if you are collecting your own debt or if the action is undertaken by a regular employee collecting accounts for one employer if the collection efforts are carried on in the name of the employer. Some of the laws also do not apply to an attorney handling claims and collections on behalf of a client and in the attorney’s own name. “Consumer” or “debtor” may mean a natural person obligated or allegedly obligated to pay a debt or under different laws may generally mean a purchase for personal or household use.

Prohibited Conduct Includes:

a. Communicating with a debtor in a misleading or deceptive manner, such as using the stationery of an attorney or credit bureau unless the regulated person is an attorney or is a credit bureau and it is disclosed that it is the collection department of the credit bureau.

b. Making an inaccurate, misleading, untrue, or deceptive statement or claim in a communication to collect a debt or concealing or not revealing the purpose of a communication when it is made in connection with collecting a debt.

c. Misrepresenting the legal status of a legal action being taken or threatened or the legal rights of the creditor or debtor.

d. Alleging that accounts have been turned over to innocent purchasers for value.

e. Communicating with a debtor without accurately disclosing the caller’s identity or cause expenses to the debtor for a long distance telephone call, telegram, or other charge.

f. Communicating with a debtor, except through billing procedure when the debtor is actively represented by an attorney, the attorney’s name and address are known, and the attorney has been contacted in writing by the credit grantor or the credit grantor’s representative or agent, unless the attorney representing the debtor fails to answer written communication or fails to discuss the claim on its merits within 30 days after receipt of the written communication.

g. Communicating information relating to a debtor’s indebtedness to an employer or an employer’s agent unless the communication is specifically authorized in writing by the debtor subsequent to the forwarding of the claim for collection, the communication is in response to an inquiry initiated by the debtor’s employer or the employer’s agent, or the communication is for the purpose of acquiring location information about the debtor.

h. Using or employing, in connection with collection of a claim, a person acting as a peace or law enforcement officer or any other officer authorized to serve legal papers.

i. Using harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

j. Using profane or obscene language.

k. Communicating with a consumer regarding a debt by post card.

l. Communication with third parties without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

m. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except to advise the consumer that the debt collector’s further efforts are being terminated; to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt.

A debt collector should accept a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

It is prohibited to solicit any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution or depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

A regulated person must within five days after the initial communication with a consumer in connection with the collection of any debt provide written notice of,

(1) The amount of the debt;

(2) The name of the creditor to whom the debt is owed;

(3) A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) A statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) A statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

Legal actions by debt collectors:

(a) Venue. Any debt collector who brings any legal action on a debt against any consumer shall-

(1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity-
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.

CREDITOR’S REMEDIES

Obtaining a judgment is often the easy part. Collecting it may be another matter. State Court judgment creditors have various remedies. Those remedies may include:

a. Periodic garnishments
b. Non-periodic garnishments
c. Creditor’s examinations
d. Writs of execution
e. Other less frequent remedies

Periodic garnishments
Michigan law allows a garnishment to be in force for 91 days after it is issued. Thus, instead of securing weekly garnishments against wages or salary, one garnishment will be good for approximately three months.

Non-periodic garnishments
One time (non-periodic) garnishments are used against banks or others holding property of a judgment debtor.

Creditor’s examinations
A creditor has the right to secure a judgment debtor discovery subpoena directing the judgment debtor to appear in court with certain documents and testify under oath concerning the debtor’s assets. This is often used when the creditor doesn’t know the debtor’s place of employment, his banking sources, or other assets.

Writs of execution
If the debtor has assets worth executing upon, a judgment creditor may obtain a Writ of Execution that directs the Sheriff or court officer to seize the defendant’s assets. The Court normally requires a bond before issuing the Writ.

Other less frequent remedies
Other less frequent remedies include the filing of an involuntary bankruptcy, asking the Court to appoint a receiver over the debtor or the debtor’s business.

CHOOSING A COLLECTION ATTORNEY

Many judgments are obtained by default. If a defendant fails to answers the Summons and Complaint a default and default judgment may 21 days after the defendant is served. Thus a legal battle as to whether the debt is owed never takes place.

If statements of account were sent to the debtor on a regular basis and the debtor failed to object to the accuracy of those statements, an account stated is created with a presumption that in the absence of mistake or fraud the statements were accurate. Thus, the debtor has a heavy burden in prevailing in any alleged defense.

Having an established relationship with a collection attorney can assist you in deciding what files to proceed on and which to write off.

Collecting Money from a Small Claims Judgment

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Small Claims Lawyer

(This was slightly revised from a publication drafted by the State Court Administrative Office. Although is drafted for collecting a small claims judgment, it generally applies to any money judgment).

If you sued someone for money and received a judgment against a Michigan resident, you have the right to collect the money.

How Much Can I Collect?

You can collect the amount stated in your small claims judgment (form DC 85) plus any interest (and recoverable costs) that accumulate during the time the other party pays off the judgment.

How Can I Collect My Money?

There are several ways you can collect your money.

1. If the other party (defendant) has the money and is present at the trial, s/he can pay you right then.

2. If s/he does not have the money at that time and you both agree at the trial, the judge can set up a payment schedule. If the defendant is not present at the trial, the court will send a copy of the small claims judgment to the defendant. The judgment will order the defendant to pay you in full within 21 days or tell you and the court where s/he works and the location of his/her bank accounts on form DC 87, Affidavit of Judgment Debtor.

3. If the defendant doesn’t pay the judgment as ordered, you will have to collect your money through a seizure of property or a garnishment.

What Is Seizure of Property?

Seizure of Property is a court procedure allowing a court officer to seize property belonging to the defendant which can be sold to pay for your judgment. If you want to file a request to seize property, you may use form MC 19, Request and Order to Seize Property.

What Is Garnishment?

Garnishment is a court procedure allowing you to collect your judgment directly from the defendant’s wages, bank account, or other source such as income tax refunds. If you want to file a garnishment, see the court clerk for the proper forms. Instructions are included with the forms.

How Do I Get An Order to Seize Property Or A Garnishment?

To get an order to seize property or for garnishment, you will first need to know where the defendant lives and works, what assets s/he has and where these assets are located, and any other information which identifies the defendant and his/her property.

• If you have the information described above, you can start the process for an order to seize property or for garnishment.

• If you don’t have the information described above, you will need to order the defendant to appear in court for questioning through a process called discovery. You can start this process by filing a discovery subpoena.

Filing a Discovery Subpoena

You must wait 21 days after your small claims judgment was signed before you can file a discovery subpoena. Form MC 11, Subpoena (Order to Appear) can be used.

Contact the court for an appearance date before putting the date and location on the form. Complete both the front of the Subpoena and the Affidavit for Judgment Debtor Examination on the back. The judge must sign the Subpoena before it’s effective.

Once the Subpoena is signed you must serve it on the defendant. The fee for filing the Subpoena with the court varies. The cost of serving it also varies.

You may include a copy of form DC 87, Affidavit of Judgment Debtor, with the Subpoena for the defendant to fill out.

Filing a Request to Seize Property You must wait 21 days after your small claims judgment was signed before you can get an order for seizure of property. Form MC 19, Request and Order to Seize Property, is used to start the process. Complete the Request portion of form MC 19 and file it with the court. The filing fee varies.

The court will issue the order by signing the form, and it will be executed by a sheriff or court officer.

When do I get my money from a seizure of property?

Any property that is seized will be sold and the money given to you. The sheriff or court officer is entitled to fees which will be deducted from the sale of the property and added to the amount of the Judgment balance.

Filing a Request for Garnishment

You must wait 21 days after your small claims judgment was signed before you can get a garnishment. Form MC 12, MC 13, or MC 52, Request and Writ of Garnishment, is used to start the garnishment process.

There are three types of garnishment: 1) periodic, 2) non-periodic, and 3) income tax intercept.

A periodic writ of garnishment (MC 12) is used to garnish the defendant’s wages, rent payments, land contract payments, or other debt which is paid to the defendant on a periodic basis. A periodic garnishment is valid for up to 91 days or until the judgment, interest, and costs are paid off, whichever occurs first.

A non-periodic writ of garnishment (MC 13) is used to garnish the defendant’s bank account or other property. Once money has been garnished under the nonperiodic writ, the writ is no longer valid.

If there is a remaining balance on the judgment, you must get another writ to collect more money.

An income tax writ of garnishment (MC52) is used to intercept the defendant’s income tax refund. Once the tax refund has been intercepted by the Department of Treasury, the writ is no longer valid. If there is a remaining balance on the judgment, you must get another writ to collect more money.

Fill in the names and addresses of both the defendant and the garnishee on the Request part of the form. The garnishee is the person or business who has control or possession of the defendant’s money. Once you complete the Request, you must file it with the district court that entered your small claims judgment. The filing fee is $15.00.

The court will issue the Writ (order) by signing the form. The Request and Writ must be served on the garnishee along with the Disclosure, form MC 14. There is a $6.00 disclosure fee with a garnishment for periodic payments and income tax refund. The cost of serving the Writ varies.

When do I get my money from the garnishment?

The garnishee has 14 days after the Writ is served to let you, the court, and the defendant know if any money is available for garnishment. This information will be provided on form MC 14, Garnishee Disclosure. If you are trying to garnish wages, you will only receive part of the wages based on a federal formula. If money is available, it will be withheld from the defendant right away. However, this money will be held for 28 days to allow the defendant time for objections. If there are no objections, the withheld money will be automatically sent to you after 28 days.

If the garnishment is for periodic payments, money will continue to be sent to you as payments become due to the defendant until the writ expires.

What Else Can I Do?

If your case against the defendant involved a traffic accident, you can ask the court for an abstract of judgment which suspends the defendant’s Michigan driver license until s/he pays the judgment. You must wait 30 days after the judgment date before you can get an abstract of judgment. You need to provide the defendant’s full name, date of birth, and Michigan driver license number. There is no filing fee. The court clerk should have the necessary forms. MCL 600.8409(2).

Child Custody and Best Interest of Child Factors

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Custody Lawyer

MICHIGAN CHILD CUSTODY

In a new divorce filing, child custody disputes often are settled when the parties appear before the Friend of the Court (FOC) during an initial Conciliation or Coordination Conference. FOC employees are generally highly skilled at convincing the parties to settle or convincing a party that they must accept a proposed settlement. Such settlements are most often based on the past custodial situation. In other words, if you have taken care of the children most of the time and your spouse has visited every other weekend for the past three months, that is likely the template the FOC will follow.

If a Custody dispute exists after the initial Case Coordination Conference or Conciliation Conference, the Court may later order a Child Custody Investigation. The FOC will interview the parents, the child/ren if of sufficient age, and review relevant information provided to it. The results of that evaluation are made known in a Report and Recommendation, which evaluates both parents according to the “best interest” factors below. Because the Report often carries great weight, it may also serve as the basis for a negotiated custody settlement.

To properly prepare for a FOC interview, (or for a Petition to Modify Custody) you should review the statutory factors. Your focus should be on providing relevant information to your attorney so that your attorney can help you create a case that can be presented in a logical and persuasive manner.

When being interviewed by the FOC investigator, the FOC employee will likely not recite the exact language of the statute but will ask questions that will supply them with information on each of the twelve factors. Review the material below so that you feel comfortable when you enter the FOC office. You must demonstrate that you are a reasonable person who would be the best primary caregiver for your child(ren).

SETTLEMENT: Because the FOC often wants to settle the matter as quickly and easily as possible, they may want to work out a possible negotiated settlement, right on the spot. Be prepared for a potential “compromise”. Don’t agree to anything unless you are sure it is the right thing. Don’t make the mistake of accepting a settlement in the rush of the moment, and then later wishing you had not done so. You may want to discuss the possible terms of a settlement with your attorney before meeting with the FOC .

ALCOHOL or DRUGS: If your spouse will allege that you have substance or alcohol abuse problems, immediately stop using any alcohol or drugs. Don’t offer the other side any ammunition. Similarly, if there is an allegation that you are having an affair, you should discontinue the affair. Keep in mind that fault can be an important issue, but that the Court will be concerned with fault issues that directly affect the child(ren).

CALENDAR: Keep an accurate calendar and write down what hours you work, what time you got home, what you did with your child(ren), what time your spouse got home, what they drank, etc. That way, if your spouse alleges you returned home at 3:00 a.m., you can turn to your calendar as proof of what really happened. This does not have to be a long recitation, but only of major events.

BEST INTERESTS OF THE CHILD FACTORS

The Child Custody Act lists the best interest factors that are applied broadly to disputes between parents, third parties and agencies. When considering a custody dispute a court must consider and set forth (declare) findings on each of the child custody factors set forth below and found in MCL 722.23. When considering a parenting time dispute, the court must consider the factors set forth in MCL 722.27a.

For a detailed review of the Child Custody Factors and how they are to be evaluated, see Best Practices Tips.

If the FOC conducts a child custody investigation it normally rules that both parties are equal on most of the factors, with only a few of the factors predominating in favor of one parent. It is wise to carefully review all the factors, but center most of your attention on the factors where there is a clear difference between you and the other parent. The statutory factors that the FOC and later the Court may consider are set forth below. I include a comment for some of the factors:

(a) The love, affection and other emotional ties existing between the parties and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and continuation of the educating and raising of the child In its religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
COMMENT: This is often very important, especially if one of the parties has created an established custodial environment, that can raise the burden of proof from a preponderance of the evidence to clear and convincing evidence.

(e) The moral fitness of the parties involved.
COMMENT: Often ruled to be equal

(f) The mental and physical health of the parties involved.
COMMENT: A person receiving adequate treatment for depression is not at a disadvantage.

(g) The home, school, and community record of the child.

(h) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
COMMENT: Beware, often children will tell both parents what they want to hear. There is no age where a child/ren can automatically choose where he or she wants to live.

(i) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent .

(j) Whether there has been a history of domestic violence (whether or not it has been witnessed by the child).

(k) Any other factor considered by the court to be relevant to a particular child custody dispute.

An attorney experienced in child custody disputes can assist you in marshalling the evidence, in obtaining the right witnesses and presenting your facts and arguments.

The Importance of an Established Custodial Environment

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Custody Lawyer

The Child Custody Act governs child custody dispute and its goal is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances. A trial court may modify a custody award only if the moving party first establishes proper cause or a change in circumstances. If the parent seeking to change custody fails to establish a proper cause or change of circumstances, a trial court is precluded from holding a hearing to revisit a previous custody determination.

In order to establish a change of circumstances, one must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.

The existence of an established custodial environment is a question of fact that a trial court is required to address before determining whether changing a previous custody order would be in a child’s best interest. If modifying a custody arrangement alters an established custodial environment, then the party seeking to change custody must demonstrate by clear and convincing evidence that such a change in the custodial environment would serve the best interest of the child. But, if modifying a custody order does not change an established custodial environment, the proponent is required to show only by a preponderance of the evidence (and not by clear and convincing evidence) that a change would be in the child’s best interests.

An established custodial environment is deemed to exist when a parent provides the care, discipline, love, guidance, and attention a child requires, thereby creating a permanent and secure environment for the child. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. The reasons why an established custodial environment exists are not important. Custody orders, by themselves, do not establish a custodial environment. Such an environment depends instead upon a custodial relationship of significant duration in which the child was provided the parental care, discipline, love, guidance and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which relationship between the custodian and the child is marked by qualities of security, stability and permanence.

Request for Change of Domicile

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Custody Lawyer

If the parties have joint legal custody, a custodial parent must file a Motion for Change of Domicile if the custodial parent wants to move more than 100 miles from the child’s current residence and if the non-custodial parent does not consent.

When considering a Motion for change of Domicile, the Court must consider each of the following factors (MCL 722.31), with the child as the primary focus in the court’s deliberations:

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. If a parent seeking to change the legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.

Some cases have held that the Court must consider whether granting the motion for a change of domicile would result in a change of an established custodial environment. If so, the trial court must also address and analyze the best interest factors in MCL 722.23. If there is a proposed change to an established custodial environment, then the party must prove by clear and convincing evidence that the proposed change is in the minor child’s best interest.

The Statute requires that each order determining or modifying custody or parenting time of a child shall include a provision stating the parent’s agreement as to how a change in either of the child’s legal residences will be handled. If such a provision is included in the order and a child’s legal residence change is done in compliance with that provision, no Motion need be filed. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970″, 1970 PA 91, MCL 722.31.”

Established Custodial Environment vs. Parental Presumption in Third Party Disputes

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Custody Lawyer

Where there is a battle between the parents and a third party, most think that the parents should win.  The statute provides:

MCL 722.25  (1) If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.

It would seem that the parent wins in the absence of clear and convincing evidence to the contrary.   But although there is a presumption in favor of a parent, there is also a presumption in favor of an established custodial environment.

“MCL 722.27  The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.”

Previously, Courts ruled that the presumption in favor of the parents was overcome by the presumption in favor of the established custodial environment and that burden of persuasion was on the parent challenging the established custodial environment in the home of the third party.

But those series of cases were overruled by the holding that  in a custody dispute between a parent and a third party with whom there is an established custodial environment, Michigan’s statutory parental presumption, MCL 722.25(1), must be given priority over the established custodial environment presumption, MCL 722.27(1)(c), and the third person must prove by clear and convincing evidence that all relevant factors, taken together, demonstrate that the child’s best interests require placement with the third person.   That burden changes if the parent is not fit or has neglected or abandoned the child, when the the parental preference does not apply.

A party is best represented in a custody case by an attorney that knows the law and works to aggressively protect your legal interest.

Uncontested Divorce

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One cannot prevent a divorce in Michigan by saying that he or she doesn’t want to get divorced and that the other party should be forced to undergo marriage counseling. The desire to divorce need only exist in one party to a marriage for that party to obtain a divorce.

The term an uncontested divorce is often used to mean that there are no disagreements regarding the terms of a divorce judgment. Unfortunately, that determination is often premature; made before the many terms of a divorce judgment are explicitly agreed upon. Thus, there may have been general agreement initially, but when working out the specific terms of a Judgment, disagreement may develop. “The devil is in the details” as when working out the specific details regarding who will have the minor children on Christmas Eve, or exactly what the level of child support is supposed to be. Unless an agreement is reduced to a signed Divorce Judgment, the possibility exists that a simple “uncontested divorce” may become complex and costly. Sometimes, emotional needs may surface that make settlement more difficult as when one spouse finds that the other now has a new love interest. Suddenly, the possibility exists that what seemed like a simple uncontested divorce becomes difficult and potentially expensive.

One should retain an experienced divorce attorney whose demeanor does not unnecessarily create conflict. Hiring a bulldog for an attorney may seem like a good idea, but when you receive the monthly legal bills, you may have second thoughts. It is a bad idea to retain an attorney who stokes unnecessary conflict with the general approach of “the two of you should fight and I will bill you monthly.”  Of course, it is not only the choice of attorneys, but the parties’ behavior, that may unnecessarily create conflict. Remember that both parties are undergoing conflict and emotional stress causing someone to say or do something that he or she regrets. A little forgiveness or even a strategically deaf ear may prevent a lot of conflict and reduce stress, tension, and unnecessary attorneys fees.  Retain an attorney who is experienced in divorce and respects the role emotions have in this difficult time. Having an experienced, dignified, and respectful attorney during the divorce process may serve everyone’s best interest.

Can’t We Just Use One Attorney?

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Question: 

If two people walk into my office and say, “this is what we have agreed on”, what might I say in the right situation?

a) It doesn’t take a genius to figure out who is in control here, and only one of you is getting a good deal?

b) There is one thing that neither of you have mentioned. Why are you not dividing his pension when that appears to be your most important financial asset? Was that an oversight? Was that based upon an emotional decision as to fairness (is it really fair that he gets it all and you get none of it)? Was that based upon the fact that you didn’t know you were entitled to a portion of it?

c) Because of your disparity in incomes and need by the one spouse, I must recommend that we consider the need for spousal support?

d) This seems to make sense right now, but what should be the language that we should include if _____________________ happens?

Answer:

I can’t say any of them, because I don’t know who I represent. A Michigan attorney cannot represent both parties in a divorce case. As one website states: “If your spouse says that his or her attorney can represent both you, you’re being set up. It’s a trap.” I wouldn’t use those words, but there is a lot of truth there. It is a trap in the sense that someone who thinks that he or she is saving money may lose hundreds or even thousands of dollars in the process.

Sometimes a person retains me and presents me with a proposed Judgment of Divorce. I ask a lot of questions so that I have a good idea as to the marriage, the assets, etc, and then we review the language of the proposed Judgment. Once in a great while, I might suggest that the Judgment appears fair and both parties should be able to live with it, without change. That is not that common. By the use of language, by leaving certain things out of the Judgment, or by an unfair distribution, most of the time the other attorney has drafted the Judgment of Divorce to favor the other party.

Don’t wait until your spouse presents you with a proposed Judgment of Divorce before you retain an attorney. Retain one early so that you abide by court imposed deadlines and so that your interests are protected from the very beginning and your attorney is not forced to play catch up. There is a time to save money, but getting divorced without an attorney may be a bad bet. It also helps if your attorney is very experienced in divorce and knows when to accept an offer and when to object. Sometimes, an attorney can make one phone call and persuade the other attorney to make a significant change to the other’s offer. Retain an attorney who knows the law and does not have the habit of making every case a full blown legal battle.

There are lots of good sayings when it comes to lawyers. Some of them are funny and some are true. You decide:

• The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer. (Will Rogers).

• Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough. (Abraham Lincoln)

• A man who represents himself has a fool for a client. (Abraham Lincoln).

Assumptions of Debts in a Divorce Judgment

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I often receive phone calls from someone being pursued by a creditor, on debt such as on a credit card that a former spouse was to assume in a Judgment of Divorce.  The “innocent spouse thinks that the creditor is bound by the terms of the divorce judgment. Unfortunately, that is not the case as a divorce judgment is not binding upon third-party creditors who were not parties to the divorce.

A divorce judgment will often require one party to assume certain debts, such as credit card debt or the assumption of a mortgage on real estate.  If a former spouse fails to pay the debt, the creditor has the legal right to pursue the “innocent” spouse for payment.  The negotiated judgment is fair only if the former spouse does pay the debt that he or she assumed.  The “innocent” spouse would not have negotiated the same terms if he or she had taken into account that the other spouse might default and that the “innocent” spouse is subject to a continued liability. For example, it seems fair if the first spouse receives a $100,000.00 marital home and assumes $50,000.00 in liabilities, while the second spouse receives $50,000.00 in assets. What appears to be a fair settlement; both spouses receiving $50,000.00 in net assets, becomes grossly unfair if the spouse assuming the liabilities fails to pay and the second spouse is pursued by a creditor.  The result would be that the first spouse receives the $100,000.00 in assets and leaves the other party with $50,000.00 in assets and being pursued by a creditor for the unpaid $50,000.00 liability.

There are different ways to avoid this possibility. One way is to require the first spouse to pay off the credit card or to refinance the debt so that the first spouse is solely liable on the debt. Creditors will not simply agree to eliminate the financial liability of the second spouse unless the first spouse has the clear ability to pay the debt, based upon their current credit score and a good income versus debt ratio. Thus, the first spouse may have the best intent to refinance, but is unable to do so.  To deal with the possibility that the first spouse is unable or unwilling to refinance, language will typically be included that if the first spouse does not refinance by a certain date, the marital home must be sold and the proceeds applied to the marital debt. Some judgments include provisions stating that the obligation to pay that debt is reserved as nondischargable spousal support. Unfortunately, that language is not binding upon a Bankruptcy Court and that language may work only if the first spouse believes it to be failproof. In reality, the spouse might be able to obtain a Chapter 13 discharge on the assumed debt, leaving the “innocent” spouse holding the bag. The “innocent” spouse would be required to retain an attorney in the bankruptcy case to demonstrate by an analysis of income and debts that a discharge would be an unfair financial burden on the second spouse. Parties may also negotiate terms that require the “innocent” spouse to retain a lien on the marital residence. That again, might be subject to frustration if the first lien is unpaid as the lien of the innocent spouse would likely be a second lien and not have a priority in bankruptcy.

If your spouse assumes debt in a divorce, timely notify each creditor in writing via CRR mail of your new address, that you are divorced (or divorcing), that you are not liable on future purchases and that you want to be provided with a copy of all future statements regarding the debt.

It is important to retain an attorney who is experienced in divorce matters and will insist that a divorce judgment includes terms designed to protect your interest regarding unpaid debts.  If you get stuck with such a debt after a divorce, contact an attorney who knows both divorce and collection law.

Michigan Divorce and Division of Inherited Property

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In a divorce case, Michigan Courts have the discretion to treat inherited property acquired during the marriage as either marital or separate property. When inherited property has been commingled with marital property or used jointly by the parties, or if the spouse of the one who received the inheritance has contributed to the acquisition, improvement, or accumulation, the courts will generally view the property as marital property and thus subject to division. Ross v Ross, 24 Mich App 19 (1970). Zimmers v Zimmers, 346 Mich 28 (1956).

However, if the inheritance received by a married party is kept separate from the marital property, the courts generally deem it to be separate property not subject to division. Lee vs. Lee, 191 MichApp 73 (1991). Generally, Courts hold that the longer the marriage, the more likely the property will be considered to be joint and thus subject to division. Ross v Ross, 24 Mich App 19 (1970).

Inherited property that is held separately from marital property is generally considered separate property and generally should not be invaded. Dart v Dart, 460 Mich 573, 584-585 (1997). However, this general rule is subject to certain exceptions, including circumstances in which marital assets are insufficient for suitable support and maintenance, MCL 552.23(1), and when the non-inheriting spouse made a contribution to the acquisition, improvement, or accumulation of property, MCL 552.401. The court may also award one of the parties part of an inheritance if both parties reasonably anticipated that an inheritance would be available for retirement purposes and it was necessary to sustain the other’s standard of living during retirement and if the anticipation that the inheritance would fund a retirement caused one to not create a nest egg for retirement. Lowrie vs. Lowrie (Mich App, 2008).

There are no mathematical rules for determining how an inheritance is to be divided or if it is to be treated as marital property. The Michigan Supreme Court has approved a trial court decision that took the $10,000 net value of the home, stated that the husband should have 1/2 of it, then charged against his half the value of his car, some stock and a $1,200 inheritance the wife had received three years earlier and that she has partly spent on the home and partly on living expenses. Johnson vs. Johnson, 346 Mich. 418 (1956).

Property that is inherited or gifted after a divorce case has been filed is unusually not deemed to be subject to division as it is hard for the spouse to argue that they contributed to the acquisition, improvement or accumulation of the inheritance as it was acquired after the divorce proceedings. Davey v Davey, 106 Mich App 579 (1981). A post-divorce inheritance of gift may, however, be found significant to the beneficiary spouse’s ability to pay support.