Laurel Fink on Michigan Family Law

Retirement Savings and Divorce

    You’ve worked hard your entire adult life and have diligently saved money for retirement. It’s a good nest egg and a good start to a great retirement. Along comes a divorce. My retirement is safe from division because I worked and earned that money, right? That money’s mine, right? Wrong! In Michigan, your retirement is subject to division. Here are some answers to some frequently asked questions.

1. How does it get divided?
Usually, if you accrued retirement before marriage, your ex won’t be entitled to that amount. Your ex-spouse will only be entitled to a percentage (usually 50 percent) of the amount of retirement you earned during the marriage. Moreover, your ex-spouse will not be entitled any retirement money you save after the divorce. If you look at it as a timeline of your entire working career, your ex is only entitled to that amount you earned while married on that timeline.

2. What's my first step?
Your first step is to contact the plan administrator for your employer’s retirement plans and explain that you are getting a divorce and need information about your retirement. You’ll want to know how much money was in the plan on the date of marriage as well as how much is in the plan on the date of divorce. You will also need to ask what type of plan or plans you have with the company whether it is a defined benefit plan such as a pension or a defined contribution plan such as a 401(k).  

3. What happens next?
It’s always a good idea to ask your company’s plan administrator if they have a packet of information they can send you that includes forms for the court order that will be required to split the retirement account. If you are dividing retirement in a divorce, you will need a separate order for the judge to sign in addition to your divorce decree that orders your employer to separate your retirement account into two accounts. Many employers have the forms that they prefer you use. This order is called a Qualified Domestic Relations Order (QDRO).    

Once the court signs the QDRO and sends it to your employer, your employer will divide the retirement account into two separate accounts. Your ex-spouse’s account will be his or her own account and treated separately. Your ex-spouse will not receive the money outright in cash as some plans won’t allow it. Other plans such as 401(k)’s will let your ex-spouse take money out of the account, but only with a hefty penalty and taxes.

4. What are my options?
If all of this seems unpalatable, then you might consider trading out another asset, such as all of the equity in the marital home, in exchange for you keeping your retirement intact. This is especially true if your ex really needs cash today rather than waiting possibly years to earn any benefit from your retirement. All it takes is a little creativity and working with the understanding that everything is negotiable.

Divorce and the Holidays

Divorce is hard on children. It can be particularly hard on them at holiday time, as described by the authors in the article below, which presents excellent advice on how to ensure that, in spite of separation and divorce, children can still be children and have fun on the holidays.

Children, Divorce and the Holidays
How to Make the Best of a Stressful Time
(provided by Holly Abery-Wetstone) & Donna F. Ferber, M.A., C.A.C.

The holiday season conjures up many images for all of us. The most universal of these images is one that includes happy excited children. However, for children from divorced or separated families, the holidays can be a nightmare. What other children may experience as a joyful time filled with excitement and good feelings, children whose parents are divorced or separated see quite differently. Often the holiday time marks a period of turmoil and chaos, as the estranged parents are forced to negotiate additional child centered issues. Depending on the degree of hostility between the parents, children of divorce approach the holidays with feelings ranging from mild ambivalence to absolute dread. This article will explore what children of divorce experience at holiday time with a focus on holiday visitation, parents' legal rights and ways that parents can help ease the pain and reduce conflict so the holidays can be enjoyed by all.

First, regardless of financial or marital status, we all experience stress around the holidays. We spend too much, eat too much, party too much and always seem to have too little money, too little sleep, and too little time. It is important to recognize that most people feel inadequate around the holidays.

Second, regardless of how good the relationship is between the divorced or separated parents, children and their parents always experience some sadness around the holidays. After all, the holidays are a time for reminiscing and reassessing our lives. The divorced or separated family is always aware of the pain it has suffered and the holidays magnify this pain. Reminiscing is part of the holiday tradition, as we remember holidays gone by with stories or browsing through the family album. For the divorced or separated family this experience is bittersweet, as they reassess how it "used to be."

Third, we have unrealistic expectations. This result is the "post holiday blues" many of us experience in January. We expect more from ourselves and others than is possible, so we feel let down and disappointed.

Fourth, the ability of the children to adjust not just to the holiday visitation schedule, but to the divorce or separation, in general is directly effected by how well the parents have learned to adjust to their new roles as ex-spouses and co-parents. The above four issues give insight into what parents need to do, regarding their children.

Each holiday exists for a limited number of hours. Because parents are divorced or separated does not mean that the amount of holiday time available, doubles. In reality, it means that each parent now only has half the time with the child that they had before. Recognizing that reality is primary in negotiating visitation time.

The bad news for the children is that they are forced to divide their time between two families. The good news is that they experience two celebrations. From the child's point of view this may sound like a lot of un and it can be, provided, that the parents set realistic expectations and don't try to outdo each other or buy the child. Many non-custodial parents feel that they have to make up for their absence by indulging the child's every whim. This is unhealthy parenting. The Disney Land parent will grow to resent it and your child will test your boundaries and try to take advantage. If possible, discuss with your ex-spouse your child's gift list and divide the list, rather than duplicate it. Competing for your child's love and loyalty only confuses the child. The best gift you can give your children this holiday season is permission to love both parents.

Some families avoid splitting the holidays, agree that the children will spend Christmas Eve with one parent and Christmas day with the other. Many divorce decrees provide that parents alternate major holidays yearly. This gives both parents the opportunity to celebrate with the children and avoids rushing the children to two holiday diners. Some families choose to celebrate Christmas Eve and the other parents Christmas Day. Remember holidays are about families and good feelings not the day the calendar dictates. In reality every day should be a holiday!

Older children are not immune to this stress. Children who live on their own may find it difficult to choose where to go and when. Young adults returning home for the holidays have the additional stress of wanting to spend time with their friends. Recently, a young couple, who were married within the last year saw a therapist to negotiate holidays. Both sets of parents were divorced and remarried. They were caught in the trap of negotiating four sets of parents not to mention grandparents. Trying to please their parents, each other and themselves was putting stress on their marriage. They decided to rotate holidays, rather than try to see everyone on every holiday. Now instead of spending holidays driving all over the state, worrying about where they had to be next, they were able to relax and enjoy their time with all members of their families.

For younger children, the decision of where to go, and when should be decided by the parents. Having to choose to spend time with one parent, over the other is a tremendous burden for the child, which may result in the child feeling guilty. It also gives the child more power than is appropriate. Your child does not decide whether he/she wants to go to school, but he/she may decide what to wear. Age-appropriate responsibilities enhance children's self esteem and confidence. Frequently divorced families fall into the trap of giving the children more power than is appropriate. To avoid this, make sure you have a support system you can turn to for advice and encouragement. One of the most difficult aspects of single parenting is not having another adult in the house to offer support and validation.

Divorcing parents are advised to determine where the children will celebrate, in writing, with the assistance of their divorce lawyers. This will prevent parental arguments and involvement of the children. The scheduling of holiday celebrations can be done creatively to fit each couple's unique situation. Parents can alternate Thanksgiving and Christmas, or Christmas Day and Christmas Eve, or allow the parent not having Christmas, the week between Christmas and New Years. It is important to put the agreement in writing to avoid misunderstandings and reneging on the part of either party.

Holidays are a mixed blessing. If we set realistic expectations, focus on the needs of the children, develop a good support system, and take care of ourselves both emotionally and physically, this time of year can be joyful and fulfilling regardless of our individual family structure. Best wishes for a peaceful and happy holiday season!

Co-Parenting After Divorce

     One of the most rewarding cases I ever worked on involved a couple who went to great extremes to set aside their differences for the sake of their four children. The marriage had broken down after numerous acts of infidelity by both parties. Needless to say, there was disappointment, anger and resentment. Nevertheless, the divorce judgment not only provided for shared custody, but the parties agreed that the ex-husband would buy a home just around the corner from the marital home. As a result, the children were able to go back and forth between their two homes at will, with ease, thus maintaining daily contact and interaction with each parent. Everyone thrived.
    Even after almost 25 years of divorce practice, it is still very painful to witness how angry spouses can become destructive parents, by allowing the emotional baggage of the marriage impair their ability to provide a sense of security and love for their children. You may be through with your spouse, but s/he will be the parent of your children for a lifetime. Anything you can do to promote a strong relationship with your ex-spouse will only help your children to feel safe and loved. So, what can you do? Here are some tips from several relationship experts:

TIPS TO REMAIN FRIENDS WITH YOUR EX -- Dr. Mark Goulston

1. Cooperation versus turning every disagreement into a fight.
    2. Compromise versus having to be right and win at all costs.
    3. Taking responsibility for causing problems versus blaming the other person.
    4. Showing humility versus self-righteousness.
    5. Expressing appreciation versus never saying "Thank you."
    6. Saying "I'm sorry" versus being defensive.
    7. Being quick to forgive versus holding a grudge.
    8. Being proactive versus passive or reactive.
    9. Giving the other the benefit of the doubt versus being quick to criticize.
    10. Showing a commitment to what's best for children versus being self-centered and self-serving.

10 RULES OF GOOD EX-ETIQUETTE -- Dr. Jann Blackstone-Ford

1. Put the children first.
2. Ask for help when you need it.
3. No badmouthing.
4. Biological parents make the rules; bonus (step) parents uphold them.
5. Don’t be spiteful.
6. Don’t hold grudges.
7. Use empathy when problem solving.
8. Be honest and straightforward.
9. Respect each others' turf.
10. Compromise whenever possible.

REMAINING FRIENDS AFTER DIVORCE -- Dr. Tina Tessina

1. Let it be.  Don't keep bringing up old hurts, disappointment and wounds. Learn from them about what to do next time, and forget about getting satisfaction from this ex. If that could have happened, it would have in your marriage. 

2. Think of the kids.  If you have children, put their welfare first. It's harmful to them to have two wrangling parents using them for ammunition. Focus on doing what works for the kids, even if you have to swallow some pride. 

3. Move on. Get some excitement going in your own life -- new activities, new friends, and a new attitude. Remember that "living well is the best revenge" and see this as an opportunity to rebuild your life, the way you want it. 

4. Think of the future.  If something upsets you, think "Will I be upset about this in a week, six months, a year?" Getting that future perspective will calm you down and help you think clearly. 

5. Separate legal matters from everything else.  If you have to go to court to get your ex to live up to agreements, or make a better deal, just let it be business. Let your lawyer handle everything, and don't talk about it to the kids or your ex. 

6. Treat your ex like any other friend.  Don't get too personal, and don't expect too much from your previous connection. Let this be a new ballgame. 

7. If you don't want to hear about your ex's dating or new love, don't ask.  Wait until you have something new of your own: a new college course, new friends, etc. Keep in mind that men often jump immediately into a new relationship to try and avoid their emotions, and it usually backfires. Women usually take longer to open up to new relationships, and fare better, especially if they've taken the time to learn from past experience. 

8. Keep the friendship with your ex on the appropriate level.  Just be as friendly as you need to be for a shared business, your kids' school or sports events, or family functions. Just because you're being nice to each other, don't get nostalgic for the old relationship. 

9. Don't let your jealousy show.  If your ex has a new love, it might be hard, not only on you, but on the kids. So, you be the grownup, don't act out on your anger and hurt. To vent your emotions, use a counselor, a trusted friend (who won't tell your ex or gossip) or a minister or spiritual counselor.   

10. As time passes, you may come to cherish this friendship with your ex. You two could do far better as friends than as marriage partners. But, if the unforeseen should happen, and things warm up between you, run, don't walk to a counselor, to make sure you don't repeat old mistakes.

Low Cost Health Care

      One of the greatest concerns clients express to me is how they will afford health care after divorce. This is becoming a more critical issue in Michigan as the economy plummets and unemployment skyrockets. The State of Michigan is attempting to offer some help. The Michigan Department of Community Health (MDCH) has launched a new website which offers information to Michigan residents seeking low cost or even free health care. The MDCH website contains links to web pages containing information on various health care programs, including community health centers, free health clinics, various mental health services, as well as programs for dental care, prescription assistance, medical screening for breast and cervical cancer and treatment programs, family planning and information about Medicaid enrollment.
    If you are concerned about the future health care of your family during these difficult economic times, check out the MDCH website at www.michigan.gov/mdch.

Child Support Agreements

Parents often wish to enter into agreements for child support that deviate from the Michigan Child Support Formula (MCSF), which implements the legislative equation for calculating child support. An example would be parents who want to negotiate a lump sum payment for the life of the child's minority, rather than monthly payments. Typically, a custodial parent will inquire whether such an agreement is permissible when the amount to be paid is less than the MCSF permits. In these situations, I always caution my clients that the courts will not allow parents to negotiate away the right of children to be supported. That principle was recently reaffirmed in a published opinion by the Michigan Court of Appeals. However, this time it was with a new twist.

In Holmes v Holmes, Court of Appeals Docket No. 276470, the Court of Appeals stated that it "strongly disfavors" parental agreements that "limit a parent's obligation to pay child support." However, in this case, the parties had negotiated a child support payment that would exceed the MCSF. The father-payer later wished to modify this agreement to bring child support within the child support formula. The Court of Appeals ruled that the original agreement for a larger amount of support, which was included in the judgment of divorce, should be treated as an enforceable contract between the parties and should not be set aside.

There are two lessons to be learned from the Holmes opinion. Firstly, the Court of Appeals has stated that where the parents agree to deviate upwards from the child support formula and that agreement results in a greater amount of support, the court will enforce the agreement. Secondly, to protect a parent who later has buyer's regret, an agreement to pay an amount greater than the child support formula should provide that it may later be modified upon the same grounds that any child support award can be reviewed, that is, based on a change of circumstances.

Attorney Fee Awards in Divorce Cases

I am often asked about attorney fee awards by potential clients. Secondary wage earners (i.e., the other spouse makes more money) or non-wage earners (e.g., stay-at-home parents) are understandably concerned about the ability to pay attorney fees in their divorce cases. Michigan law does permit awards of attorney fees. That is, a court can order the other spouse to pay attorney fees in appropriate circumstances. One such circumstance is the client's inability to pay. In an unpublished decision from the Michigan Court of Appeals this week, trial court's obligation to consider a request for attorney fees in a divorce case was clarified.

In Guenther v Guenther, Court of Appeals Docket No. 283559, the father appealed a Wayne County trial court's award of both custody and attorney fees to the mother. Affirming the award of custody, the Court of Appeals nevertheless sent the case back to the trial court on the issue of attorney fees. The appellate court made it clear that an award of attorney fees is not appropriate unless the party requesting the fees can demonstrate an inability to pay his/her own legal fees. Furthermore, it is not enough to show that one party makes more money than the other; there actually has to be an inability to pay. The trial court was ordered to conduct an evidentiary hearing at which the wife would have to present evidence that she was unable to afford the cost of her own attorney fees.

The Guenther decision reaffirms the advice I always give my clients: Attorney fees can be awarded, but whether and how much is very fact-specific, and must be decided on a case-by-case basis.

Parenting Time During the Holidays

It's that time of year again. The holidays are fast-approaching and I expect, as usual, the emergency calls to my cell phone on Christmas Eve, a Hanuka weekend party, or on New Years.