Proposed Divorce Legislation Distinguishes Marital From Separate Property

Two new bills pending in the Michigan legislature attempt to address a long-perceived problem in Michigan family law: how to classify property [separate or marital] in a divorce proceeding.  This legislative proposal has judges and divorce attorneys up in arms.The tie-barred bills, 4672 and 4673, introduced by Livonia Republican John Walsh, propose standards for the division of marital property, and comingled marital and separate property; create a presumption of non-division for separate property; and revises the procedures by which a family court could "invade" one spouse's separate property and award it to the other spouse.In Michigan, a family court judge's power to apportion property in a divorce comes strictly from statutes; a confusing...

Read more »

Posted in: Attorny James P. Cunningham,divorce,family court,family law,family law lawyer,marital estate,marital property,Representative John Walsh,separate property,State Bar of Michigan

Violent Video Games Are Protected Free Speech Says SCOTUS

On the final day of the 2010 term, as their long summer break beckoned, SCOTUS issued a notable decision involving the regulation of video game content.   Brown v Entertainment Merchants Association is a 7-2 decision invalidating California's ban of violent video game sales to minors on the grounds that such regulation is an unconstitutional restriction on protected free speech.So now, when California's pre-teens are committing untold violent capital felonies in Grand Theft Auto, at least they will not be breaking the law in the real world.Under the First Amendment, SCOTUS held that such speech is protected, even if expressed in the format of a violent video game available to minors. ...

Read more »

Posted in: constitutional law,felony,First Amendment,Grand Theft Auto,SCOTUS

New York Becomes 6th State to Legalize Same-Sex Marriage; California Next?

Albany, New York.  Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo.  When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.A similar bill was defeated in New York in 2009.  The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS.  Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's...

Read more »

Posted in: California,civil rights,gay marriage,Judge Vaughn Walker,New York,Perry v Brown,same-sex marriage,SCOTUS

Senate Proposes Statewide Registry for Medical Marijuana Patients & Caregivers

Earlier this week, a bill was submitted to the plenary Michigan Senate by the Judiciary Committee that would require a state-wide registry for medical marijuana patients and care providers.  Senator Rick Jones, a sponsor of the proposed legislation and chairman of the judiciary committee said the registry would be a "critical tool" for law enforcement.  The mechanics of the proposed law would require the DCH to submit a registrant's name and address to the state police within 48-hours of issuing the marijuana registration card.  The police would then be able to call-up the data, for example, during routine traffic stops.Of course, the compassion care industry is up in arms, viewing the bill as a significant affront to a registrant's...

Read more »

Posted in: medical marijuana,Medical Marijuana Act,Michigan Senate,Michigan State Police,Senator Rick Jones

Parental Divorce Reduction Act is Misguided

New Mexico state senator Mark Boitano introduced a bill last February titled the Parental Divorce Reduction Act.  The legislative intent behind the bill was to reduce unnecessary divorce, reduce family court litigation, and educate parents about the effect of divorce on their children.Noble objectives; unworkable mechanics.  This bill basically died shortly after its introduction to the New Mexico state senate, even prior to being assigned to a committee.  For some reason, despite the death of this bill, it recently has received significant blog attention from family law pundits.Perhaps the bill made headlines because of its attempt to introduce a significant counseling requirement for divorcing couples, followed by an 8-month...

Read more »

Posted in: abuse,counseling,divorce,family law,family law lawyer,Parental Divorce Reduction Act,Senator Mark Boitano

SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day.  One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court.  Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint.  Neither father nor mother were represented by counsel in the proceedings.The case wound its way through the South Carolina court system.  By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.SCOTUS, in reversing his conviction, nevertheless held that a...

Read more »

Posted in: child support,child support arrearage,family court,family law,family law lawyer,SCOTUS

Fathers See Gains in County Family Courts

Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts?  To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.  Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner.  Custody is still decided on a “case-by-case”, county by county, basis.The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case. ...

Read more »

Posted in: attorney,child custody,Child Custody Act,family court,family law,family law lawyer,joint custody,Michigan Bar Journal,Oakland County Family Court

Reasonable Fees a Must in Tight Legal Services Market

Consumer focus groups often characterize attorneys as overpriced. Combine that conclusion with a lawyer's frequent arrogance, and the overall experience of purchasing legal services can be disappointing. A recent study cited in The Economist noted that so called “Big Law” [America’s 250 largest private law firms] shed 8% of its work force over the past two years. Many top-tier law school graduates cannot find work in their chosen field. Local general practitioners have also seen the effects of a tight market for legal services amidst a glut of service providers. Fortunately for them, appearing before the local magistrate or county trial judge cannot be outsourced to India like an e-discovery document review. Nevertheless, globalization, digitization,...

Read more »

Posted in: attorney,Big Law,law school,lawyer,legal services,The Economist

When the Innocent Go to Prison We All Lose

Everyone accused of a crime has a right to have the matter tried before a jury with the heightened "beyond a reasonable doubt" evidentiary standard.  Sometimes, however, the jury gets it wrong.When that happens, you have a constitutional right to appeal.  Most convictions, statistically, are affirmed at the intermediate appellate level.  From there, a convicted felon has a discretionary appeal to the Michigan Supreme Court.The Michigan Supreme Court selects few cases each year; most petitions for a writ of certiorari, especially when they are from prison inmates, are rejected.Once your state appellate rights are exhausted, you have the right to petition for habeas corpus in the United States...

Read more »

Posted in: acquittal,conviction,criminal defense attorney,habeas corpus,Michigan Supreme Court,prison,prisoners,State Bar of Michigan,United States District Court,United States Supreme Court

Breathalyzer May Be Required in Michigan Bars

There is a bill pending in the Michigan Senate which, if passed, will require bars and restaurants that serve alcoholic beverages to make self-operated breathalyzers available to patrons.  The bill, sponsored by Senator Bert Johnson of Highland Park, was submitted to the Senate Committee on Regulatory Reform on June 1, 2011.Presumably, the legislative wisdom associated with such a law would be to provide bar patrons with some immediate feedback relative to their blood alcohol level.  There is a large body of published analysis, however, impugning the accuracy of these devices.  For example, if any alcohol or a variety of other agents are present in your breath sample, the results will be distorted.One advantage...

Read more »

Posted in: alcohol,Breathalyzer,defense lawyer,drunk driving,Highland Park,Senator Bert Johnson,speakeasy,Super Drunk

The Skelton Divorce; An "Only in America" Moment

John and Tanya Skeltonin Lenawee County Circuit CourtI remember having a bad feeling about this story as it broke over the news during the Thanksgiving weekend last year.  Three young boys missing; clueless father.Fast forward seven months and now we have the Skelton divorce in the Lenawee County Family Court making headlines.In those intervening months, the three Skelton brothers have not surfaced.  For his part, their father simply states that he gave them to "an [unnamed] organization".He stuck to this story, forcing his wife into a divorce trial where he represented himself in the proceedings before family court Judge Margaret Noe.  Accordingly, Judge Noe awarded custody, such as it is under the circumstances,...

Read more »

Posted in: child custody,divorce,family court,family law,John Skelton,Judge Margaret Noe,Lenawee County Circuit Court,Lenawee County Prosecutor,parental kidnapping,Tanya Skelton

Biological Father Cannot Parent His Law School Love Child

They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York.  Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband...

Read more »

Posted in: biological father,Cooley Law School,family court,family law,filiation,Justice Brian Zahra,Justice Marilyn Kelly,Michigan Court of Appeals,Michigan Supreme Court,Wayne County Circuit Court

Michigan's Super Drunk Law After Six Months

It's still too early to tell if Michigan's new "Super Drunk" driving law is having an effect on making our roadways safer.  The law took effect last November.Some following the law have noted that due to plea deals, many convicted of this law are going to rehab rather than jail.  One of the provisions of the law was to double the jail term from 90 to 180 days for convicted super drunk drivers.According to Eaton County district judge Harvey Hoffman, an early proponent of the new law, more folks are jumping into sobriety courts, or extended rehabilitation programs.   Judge Hoffman cites chronic jail overcrowding as a chief factor in sentencing super drunks to rehabilitation over a six-month jail bit.Of course, here...

Read more »

Posted in: criminal defense,defense lawyer,drunk driving,Judge Harvey Hoffman,Oakland County,Oakland County Prosecutor,Super Drunk