Laurel Fink on Michigan Family Law

Divorce and Estate Planning

    Obtaining a divorce judgment closes one chapter of a person's life, and it also opens another. It is important to be prepared for that new chapter. One of the essential matters I counsel my clients about, early in the divorce process, is the absolute necessity of updating an estate plan to reflect the change from married to single.
    Kari Kennedy, a 32 year old social worker living with her husband and two children in Texas, is the unfortunate victim of  her late father's failure to make the type of beneficiary changes necessary to protect his intent that his daughter Kari receive his retirement benefits upon his death. The case has now wound its way all the way up to the United States Supreme Court , where Kari is arguing that her late father's failure to follow the strict letter of the law in changing beneficiary forms should not prevent his intended estate plan. She is arguing that other evidence (a waiver signed by her now deceased mother) demonstrated that Kari was the intended recipient of her father's retirement benefit. This type of ugly family litigation can be avoided by ensuring that your divorce attorney works with your estate planning attorney to implement your intent in distribution of your estate after your divorce.
    I recommend that divorce clients consult with an estate planning attorney during the divorce process, and treat the planning as part of the transition from married to single, rather than waiting until the divorce is finalized. This is always important, even if there are no children. Without a new or revised estate plan, your estranged spouse - and yes, even your ex-spouse - could end up with all your property and assets. Also, consider whether, during the divorce process, you would want your estranged spouse making medical decisions for you should something unfortunate happen and you are unable to make those decisions for yourself. In other words, some estate planning changes should be implemented during the divorce process, and some after the divorce is finalized. The only way to ensure you are protected is to consult with an estate planning attorney during the divorce process itself, and then to follow-up on implementing a completely new estate plan upon completion of the divorce process. Your estate plan should include medical power of attorney, decisions regarding how to designate life insurance benefits after divorce, whether you should implement a living trust, and even the necessity for guardianship provisions through a will. Of course, it is always important to ensure you have changed beneficiary designations on pensions, 401k and other retirement savings accounts.

Bad Economy - To Divorce or Not To Divorce?

    The decision to seek a divorce is informed by many different factors. A major one is often concern about the economic fall-out of a divorce. After all, divorce can frequently mean supporting two households on the same income as previously supported the intact family. In the current economic downturn, economic concerns are front and center in the decision whether to file. Recently I discovered the following article, which provides significant food for thought on evaluating how the economy of your family life is pertinent to your decision whether to file for divorce at this time.

By SUZY BROWN

    Some experts say if your marriage is shaky, a downturn in the economy will make it more likely that you will divorce. Others says that a bad economy can be good for your marriage. This economy is definitely creating challenges that one doesn’t see in a more stable financial situation.

Surveys of attendees at my recent divorce recovery camps revealed that a 52-year-old woman was living in her car. Another was temporarily in the Super Six Motel. Another attendee and her ex-husband were still living in the same house because they have not been able to sell their house, and they could not afford two mortgages. 

Researchers have tried to figure out the correlation between the economy and divorce, and they often come up with differing conclusions. Whether a downturn in the economy increases or decreases the likelihood of individuals divorcing depends on many factors. Money issues in individual families have always been high on the list of causes of divorce. However, when the financial stability of the whole world plummets, and everyone is feeling the pinch of tough economic times, couples either:

1. Decide to try to weather the troubles in their marriage and make extra efforts to stay together, or...

2. Realize that their personal situation is getting worse along with the deepening financial crisis and head straight for the divorce attorney’s office. 

This challenging economy will hopefully make borderline couples give their relationship another try before divorcing. They may seek counseling from professionals or attend couples retreats sponsored by a religious community to develop a new intimacy and stronger bonds in their marriage. A clear, hard look at finances may cause a couple to establish new commitment to the marriage and can get them on their way to a more intimate partnership.  

However, if divorce is inevitable and the relationship irretrievable, the decision to divorce can be accelerated by the extra stress of this financial climate. Those who decide to divorce should keep in mind that the divorce process in itself can be expensive. Two houses demand more to maintain than one.

Consulting and attorneys fees add up. Physical illness and emotional distress often show up during divorce, which can be costly. Providing for children, even those in joint custody, can create additional expenses. In some cases the decision to divorce depends on where a couple is in the process and what kind of advice they are getting. An attorney in West Palm Beach, Fla., posted the following on a recent blog:      

“If you are the major bread-winner of your family, now is a good time to get a  divorce. You will be able to buy your spouse out of the marital home for a bargain basement price. That is, if you can get financing. As far as division of marital  assets and debts is concerned, if your retirement plan took a recent hit on Wall Street, that is that much less you will need to split with your spouse. If your  spouse is irresponsible with money, a shopaholic, or high maintenance, now is the  time to get rid of him or her. If your job is at risk, or bonuses are not  forthcoming, your alimony obligation may also be lower. Make it unmodifiable  or a lump sum in the negotiations! Child support may be lower too, if your  passive investment income is down.”

The blog went on to say, “If you are the  dependent spouse, a divorce may be just the thing to protect your good credit!  You may need it to buy a condo or townhouse when the credit freeze eases. As to credit card debt, try to pay at least the minimums each month for the same reason.” The blog continued, “So if you are thinking about divorce, there are  many favorable economic reasons to start divorce proceedings in this bad  economy.”

Couples should be wary of advice that weighs heavily on one side of the scale or another, or seeks to punish one party at the expense of children or the ex-spouse. Beware of advisors who are more in the business of shoring up their own bottom line rather than crafting a settlement that is as fair as possible for both parties. Settlements that are unfairly skewed one way or another almost always cause problems down the road. In cases where a couple is already in the process of divorce, this economy forces everyone involved to figure out new ways to structure the settlement. Couples and their attorneys and financial consultants have to be creative, and do their best to equalize both benefits and losses in the final divorce agreement.  

Divorce almost always means selling and buying houses. In this market with house values at all-time lows and financing questionable, selling and buying a house becomes much more difficult. Even if you are able to sell your family home, the value is often below what you paid for it, and especially for a woman who has been out of the work force for a significant amount of time, getting financing for a new home is often difficult. These realities will alter the settlement process.  When a couple owns a business together, decisions must be carefully made to insure an equitable outcome.

Some couples decide to sell the business and equally take the loss or the profit. Others decide to continue working together until a better economic climate. Delaying divorce or negotiating the business division at a certain date in the future is also a possibility. Couples may just need to sit tight on certain final decisions until the economic picture improves. Retraining or additional education may also be necessary for one party, and that should be factored in to any divorce settlement and started as soon as possible. In the meantime, both parties will need to cut back on spending. However, psychologists and grief specialists like Therese McKechnie of Shawnee Mission, Kansas, tells us two of the most common ways people fill that emotional void when a relationship fails is by spending and new relationships.

But in this economic climate, using your credit card or dipping into your retirement funds early can create more havoc in both your current and your long-term financial situation. Getting into new relationships is almost always expensive as well. Newly divorced men often try to impress a new potential partner that they have more money than they actually have. Newly divorced women often get into an unhealthy new relationship to feel more secure about their own financial situation. In the meantime the bottom line is getting worse every day. Both men and women can make bad choices simply because they need reassurance to offset feelings of insecurity about the future in general.

Whether you decide to divorce or not, getting solid financial advice from people you trust and taking an honest look at what you need to do to survive financially is the first step for any couple. According to financial advisor Shalon Doney of Merrill Lynch in Kansas City, Mo., “Your dream team would be an attorney, a financial advisor, an accountant and a psychologist. These professionals should be in place as early in the process as possible.” 

In either case, face your financial situation head on and budget to keep your expenditures in line with the money you have. Everyone seems to be tightening his or her belt, but those who are anticipating or experiencing divorce, may have to cinch it up more than is comfortable and more than expected. However, remember this fact: money does not buy happiness. One’s attitude toward life and money is much more important than the actual dollar figure in our bank account or portfolio. 

Regardless of your situation today, your future is up to you! Your life can be as wonderful or as miserable as you decide it will be. That’s true for everyone. This new economy is forcing all of us to take a serious look at what’s really valuable and hopefully we can focus more clearly on those things. Getting your core priorities straight is helpful whether you end up divorcing or taking this opportunity to make your marriage stronger. 

Suzy Brown is an author, speaker and founder of Midlife Divorce Recovery.  For more information, see her web site: www.midlifedivorcerecovery.com. She can be reached at suzysuccess@kc.rr.com

Pre-Divorce Planning Recommendations for the Secondary or Non-Wage Earner

I am always dismayed when clients come into my practice without having had the benefit of careful divorce planning. Understandably, it is common to ignore the danger signs in a marital relationship.  Nobody likes to think that their marriage may be in danger of dissolving.  Facing reality and planning ahead, however, can avoid unnecessary stress and legal pitfalls further down the road. The following recommendations are directed towards the secondary or non-wage earning spouse. Simple preparedness can pave the way for a smoother, less litigious divorce as well as enhance the likelihood of a favorable settlement.

    Following are some financial planning recommendations which, although no pertinent to every situation, generally have proven helpful to the secondary or non-wage earning spouse.

    1. Review all mail which comes into the marital residence and make a list of the sender and the return address.  It is particularly important to obtain the addresses of brokerage houses, insurance companies, credit card issuers, banks, etc.

    2. Remain “in touch” with the personal finances of the marriage.  Review all monthly bank statements and brokerage statements and try to make copies.  Give copies of all necessary documents to your attorney to hold for safekeeping.

    3. Review all tax returns and seek complete explanations as to any item which may be questioned before signing.  Make copies of the tax returns (including any and all schedules).

    4. Inventory and periodically review the contents of any safe deposit box.  List the contents (including cash and jewelry) and make sure that the safe deposit box is in joint names.

    5. Familiarize yourself with your spouse’s business.  When tax returns are being prepared, go with your spouse to the accountant so that you don’t get second-hand (filtered) information later.

    6. Do not make major purchases (such as a boat or expensive car), or allow your spouse to make major purchases for himself/herself or on your behalf.  Keep the assets of your marriage liquid and unencumbered.  Don’t purchase that summer home or Mercedes with the thought (hope) that it will patch up the differences between you and your spouse.  Patch up the marriage, first, then make purchases later.

    7. Do not transfer, assign, alienate or make a gift (even to the children) of any marital asset.  Maintain all assets in joint names (or your name alone, if possible).

    8. If your spouse has a pension plan with his/her employer, determine when his pension “vests.”  It may be important to be married at the time the pension vests to ensure that you will be entitled to your fair share of that asset under Michigan law.  Obtain copies of the pension and/or profit-sharing plan and any yearly statements.

    9. Obtain copies of any will or trust documents.  Go with your spouse to his/her attorney and directly participate in any estate planning.

    10. Review and make copies of all loan documents, mortgage applications and financial statements.

    11. Do not sign any documents or financial instruments in blank.  Know what you are signing, keep copies and don’t rely on your spouse to fill in the blanks later.

    12. Have a complete medical and dental check-up.  Familiarize yourself with your spouse’s medical and dental plans.  Make certain that you have needed medical and dental treatment prior to separation and that you are covered with medical insurance in the event of separation.

    13. For purposes of receiving any Social Security benefits to which you may be entitled when your spouse retires, make certain that you are married for at least ten years.  Do not separate prior to this time (or at least avoid being divorced prior to this time) if at all possible.

    14. Learn where you can cut costs in the event of a separation because of the limitation of income which you may subsequently suffer, at least on a temporary basis.

    15. Open your own safe deposit box at another bank (other than where your spouse and you may have an existing box) to store any important papers and valuables.  You also may wish to open up a post office box to receive personal letters from your attorney or others.

    16. Separation generally causes immediate economic hardship, even if only on a temporary basis.  Therefore, put away as much case as you can.  You will need to retain an attorney and also will have particular personal needs which your spouse may not want to pay for.  Therefore, from weekly monies which you receive from your spouse to buy groceries, allowance or from your job, “separate” as much as you can.  Keeping money in travelers checks may be a viable alternative to cash.

    17. Make certain your automobile is in good working condition and that it is titled in your name or jointly (not in your spouse’s name alone).  You will need to be mobile in order to see your attorney, go to the supermarket, go to work or out with the children.

    18. Review and make copies of any and all insurance policies relating to the marital residence, furnishings or other assets, including any riders for jewelry, silverware or other valuables.  Make copies of any appraisals which may be available.

    19. Don’t create any additional indebtedness and don’t allow your spouse to do so.

    20. Develop your own lines of credit.  Obtain in your own name gasoline credit cards, credit cards from larger department stores and national credit cards (Visa, American Express, MasterCard, etc.).

    21. Keep all inheritances separate from your spouse.  If an inheritance is received, don’t place it in joint names.

    22. Make certain that all taxes owed to the federal government any other taxing authorities have been paid.

    23. If your spouse is about to make a job change or be elevated to another position, don’t leave!  Consider the fact that your spouse may have an enhanced earning capacity which could result in greater support for you (and the children) later on.

    24. Don’t quit work if you are working.  It is important to have a sense of financial independence as well as the emotional security of having a place to go every day.

    25. Obtain most recent financial statements given by you and your spouse or your spouse to a lending institution for the purpose of obtaining a loan or line of credit (this usually lists all assets and liabilities).

    26. Don’t move out of the marital home!!

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.