Home Featured

Bedside Manner; True confessions

Aug 10, 2015

0 388

When I first practiced law, it was as if I had no clients. Law school had equipped me with the technical aspects of being a lawyer - to deal with legal issues and attempt to resolve them - and I fervently employed these skills to each case I was given. However, I gave little regard to the very real people whose cases I was taking on. Like a doctor who, with good intentions, becomes obsessed with treating a tumor and forgets about the patient fighting cancer, I had become obsessed with the legal issues and neglected to work on my bedside manner.

This cold and analytic beginning as a lawyer is not something I am proud of. Too slowly and too sporadically, I began to recognize the special place that attorneys occupy. A person comes and seeks legal advice. But that person may have unique and unspoken concerns and worries that also need to be unearthed, considered and addressed.

Recently a client left the following review: “Ray, let me take this opportunity to express my appreciation for your professional advice and personal support to me during this ordeal. I recall meeting with you a few years back to prepare our wills, you again displayed the people side of building trust first and then moving into the legal arena. As a Change Management/Leadership Consultant having worked with companies both stateside and abroad, I realized that success is due to building relationships through trust first. That is, the ability to listen, understand and provide direction….you are the best. Thanks again, Dale.”

I would never have received such a review ten years ago. I am glad that I received it, but wish I had deserved it earlier. If you retain me as your attorney, I hope to earn your trust and this same level of appreciation.

Steps to Obtaining a Divorce in Michigan

Family Law

Apr 24, 2015

0 421

1. Retain a Michigan divorce attorney who will assist you and with whom you feel comfortable.

2. Your attorney will confer with you to answer your questions and to obtain the necessary information. To facilitate the filing of a divorce, you may request that we send you a divorce questionnaire. Send your email request to rpater@paterlaw.net and request a divorce questionnaire for a filing either with or without minor children.

3. Your attorney will prepare the following documents:
a. Case File Information Form
b. Summons
c. Complaint for Divorce
d. Record of Divorce or Annulment

AND IF THERE ARE MINOR CHILDREN:

e. Verified Statement
f. Uniform Child Custody Jurisdiction Act Affidavit.

4. The documents get filed with the Court along with the $150.00 filing fee.

5. Copies of the Summons get returned to your attorney.

6. Defendant is served with a copy of the documents.

7. If there are minor children the Friend of the Court will schedule a Coordination Conference with both parties to attempt to settle custody, support, and parenting time issues on an interim basis.

8. If there are minor children there is a six-month waiting period. If no minor children, there is a 60-day waiting period before the divorce can be finalized. This is the shortest period in which a divorce can be granted.

9. Settlement discussions will usually occur during the waiting period.

10. There may be a need for discovery. The purpose of discovery is to allow the parties to have access to material that will assist them in preparing and trying their cases. There may be three forms of discovery.

a. Interrogatories. Michigan allows written interrogatories (questions) to be sent to the other party. They are required to give written answers, under oath (notarized), to the written questions. Interrogatories can help discover information necessary to initiate intelligent settlement discussions or to prepare for trial. If the opposing attorney sends interrogatories for you to answer, we will normally ask you to prepare rough draft answers, which we would then prepare in a proper form.b. Depositions. In some cases, the attorneys will schedule depositions. The attorney will then ask the opposing parties questions in the presence of a court reporter. The court reporter accurately transcribes both the questions and the answers. If your deposition is scheduled, we would assist you and be present during the deposition.c. Requests For Documents. Either party may request the production of documents from the other party, and may use the subpoena power of the Court to obtain documents, compel the appearance of a witness, and to obtain documents in the hands of a third party, such as an employer or bank.

11. If settlement discussions have been successful or if the other party failed to file an answer to the Complaint within 21 days after being served, we may prepare a proposed Judgment of Divorce.

12. If there has been a default or the parties has agreed on the terms of the Divorce Judgment, then we will schedule a pro-con hearing where you will testify briefly in support of the allegations in your complaint and request that the Court enter the proposed Judgment.

13. If settlement discussions have not resulted in settlement, then we must prepare for trial.

14. If there is a trial, we must prepare a judgment that complies with the Court’s oral opinion.

If retained as your attorneys, feel free to call us with your questions at 616.396.8883. As your attorneys, we will try to keep you informed by providing you with copies of all correspondence and legal documents associated with your case whether they are received by this office or are produced by this office to be sent to the opposing party. We will try to assist you during what may be a difficult time

Legal Separation/Separate Maintenance in Michigan

Family Law

Apr 24, 2015

0 323

Michigan does not have an action for legal separation, but we do have an action for Separate Maintenance. The initial filing is almost identical to the filing of a Divorce, and when a Judgment enters the parties are divorced economically or financially, but they are not divorced from the bonds of matrimony.

Sometimes parties add special language to a Judgment of Separate Maintenance that provides that if either party wants to turn the Judgment into a Judgment of Divorce they may do so within six months and then the Court will not require that a new case be filed and the Court will waive the statutory waiting period before a Judgment of Divorce can enter.

Why file would someone want a Judgment of Separate Maintenance rather than a Judgment of Divorce? Most people who seek a Judgment of Separate Maintenance do so for one of three reasons:

They do not believe in divorce for religious reasons.
The other spouse needs continuing medical coverage that might be automatically terminated in the event of divorce, although some policies will also terminate upon entry of a judgment of Separate Maintenance. To prevent the loss of insurance, it may be advisable to enter into a detailed post-nuptial agreement,
To allow the other spouse to remain in the country, if the other spouse s allowed entry only because of marriage to a citizen.

If one party files an action for Separate Maintenance, the other party may file an counterclaim for divorce. (MCLS 552.7 (4).

The statute provides what must be included in the terms of a Judgment of Divorce or of Separate Maintenance:

552.101 Judgment of divorce or separate maintenance; provision in lieu of dower; determining rights of wife or husband in and to policy of life insurance, endowment, or annuity; discharge of liability on policy; determination of rights; assignment of rights.

Sec. 1

(1) When any judgment of divorce or judgment of separate maintenance is granted in any of the courts of this state, the court granting the judgment shall include in it a provision in lieu of the dower of the wife in the property of the husband, which shall be in full satisfaction of all claims that the wife may have in any property that the husband owns or may own in the future or in which he may have any interest.

(2) Each judgment of divorce or judgment of separate maintenance shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the husband in which the wife was named or designated as beneficiary, or to which the wife became entitled by assignment or change of beneficiary during the marriage or in anticipation of marriage. If the judgment of divorce or judgment of separate maintenance does not determine the rights of the wife in and to a policy of life insurance, endowment, or annuity, the policy shall be payable to the estate of the husband or to the named beneficiary if the husband so designates. However, the company issuing the policy shall be discharged of all liability on the policy by payment of its proceeds in accordance with the terms of the policy unless before the payment the company receives written notice, by or on behalf of the insured or the estate of the insured, 1 of the heirs of the insured, or any other person having an interest in the policy, of a claim under the policy and the divorce.

(3) Each judgment of divorce or judgment of separate maintenance shall determine all rights of the husband in and to the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the wife in which the husband was named or designated as beneficiary, or to which he became entitled by assignment or change of beneficiary during the marriage or in anticipation of marriage. If the judgment of divorce or judgment of separate maintenance does not determine the rights of the husband in and to the policy of life insurance, endowment, or annuity, the policy shall be payable to the estate of the wife, or to the named beneficiary if the wife so designates. However, the company issuing the policy shall be discharged of all liability on the policy by payment of the proceeds in accordance with the terms of the policy unless before the payment the company receives written notice, by or on behalf of the insured or the estate of the insured, 1 of the heirs of the insured, or any other person having an interest in the policy, of a claim under the policy and the divorce.

(4) Each judgment of divorce or judgment of separate maintenance shall determine all rights, including any contingent rights, of the husband and wife in and to all of the following:

(a) Any vested pension, annuity, or retirement benefits.

(b) Any accumulated contributions in any pension, annuity, or retirement system.

(5) For any divorce or separate maintenance action filed on or after September 1, 2006, if a judgment of divorce or judgment of separate maintenance provides for the assignment of any rights in and to any pension, annuity, or retirement benefits, a proportionate share of all components of the pension, annuity, or retirement benefits shall be included in the assignment unless the judgment of divorce or judgment of separate maintenance expressly excludes 1 or more components. Components include, but are not limited to, supplements, subsidies, early retirement benefits, post-retirement benefit increases, surviving spouse benefits, and death benefits. This subsection shall apply regardless of the characterization of the pension, annuity, or retirement benefit as regular retirement, early retirement, disability retirement, death benefit, or any other characterization or classification, unless the judgment of divorce or judgment of separate maintenance expressly excludes a particular characterization or classification.”

The Judgment might also contain terms regarding: Change of name, spousal support, custody, parenting time, child support, real estate, business interests, and custody of pets.

Are Premarital Assets Exempt from Division in Divorce?

Apr 24, 2015

0 238

A party’s premarital assets are usually not considered divisible in a divorce unless the other spouse contributed to the acquisition, improvement or accumulation of the property, or the marital property is insufficient for the suitable support and maintenance of the other spouse. This general rule may be further complicated by particular facts such as a house being returned to the spouse that brought it into the marriage, but the other spouse sharing in the increase in equity during the marriage.

In Sparks vs Sparks (1992) the Michigan Supreme Court listed nine factors that a court can review in deciding how to divide property. The contribution of the parties to the acquisition of the assets was only one of the nine factors, and the Court stated: ‘‘lt is not desirable, or feasible, for us to establish a rigid framework of applying the relevant factors. The trial court is given broad discretion in fashioning its rulings and there can be no strict mathematical formulations.’’ The case of Reeves vs. Reeves (Court of Appeals, 1997) seems to conflict with the Sparks case when it held that a court should not divide property acquired outside the marriage except in unusual circumstances. The Reeves Court made the source of the property more important that the other eight factors listed in Sparks..

An experienced divorce attorney can help you decide how property in your situation should be divided. Like many matters involving the law, things are often not quite as simple as they might first appear.

Child Custody and Best Interest of Child Factors

Sep 7, 2014

0 328

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

Sep 6, 2014

0 383

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

Sep 6, 2014

0 239

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

Sep 5, 2014

0 243

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.

FEATURED