CEO Divorce: Impact on Shareholders

By: Timothy P. Flynn

There is no doubt that a divorce proceeding affects any professional's work routine; that includes, of course, corporate executives.  The distraction of a divorce in the board room, however, affects others outside the company; it pulls the corporate shareholders within its scope.

We're not just talking about guys like Mad Men's Don Draper, whose divorce temporarily but significantly affected the partners of a successful NYC advertising agency.  A CEO's divorce can affect the bottom-line for the shareholders in the company.

There are several ways that an executive's divorce could affect the company for which he or she manages.  First, if the executive has a significant stake in the company, the divorce could affect the executive's controlling interest.  The divorcing spouse will want a portion of the value owned by the executive and that value could affect control of the company.

Second, the divorcing executive's corporate focus and energy levels will be impacted by the trajectory of his or her divorce proceeding.  It is no surprise that business studies and surveys have shown that well over one-third of companies report a negative productivity impact directly arising from the divorce of an executive.

Third, the divorcing executive's strategic decision making can be influenced by the divorce proceeding.  If, for example, the executive is funding her divorce settlement with personal assets so that she can retain her share of corporate ownership, her outlook toward risk could be impacted: i.e. she may become more risk-adverse in the short term in order to protect her suddenly less-diversified and more concentrated net worth.  Being less risk-adverse may not be good for the company or its shareholders.

All of this affects a shareholder's interest in the company.  In many cases, perhaps because of the above examples, corporate divorces are handled as privately as possible.

The collaborative model we prefer here at Clarkston Legal serves the executive, and thus her company, very well.  The collaborative model is where the divorcing parties, and their team of professionals, meet and negotiate a settlement before a divorce proceeding is officially filed with the family court.

If you or your spouse are considering a divorce and there are corporate implications, you should give serious consideration to the collaborative model.  To learn more, contact us for a free consultation.

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Posted in: CEO,collaborative divorce,divorce,divorce lawyer,shareholder

Law School Described in Six Words

By: Timothy P. Flynn

Recently, a WSJ Law Blog post described law school in six words. The post was inspired by a law professor at Marquette University Law School who, in turn, was inspired by the master of lean prose: Ernest Hemingway.

After all, legal prose should be concise and to the point. Simple declarative sentences should be the rule in legal papers.

Hemingway is said to have once won a bet by writing a story in just six words.  His contribution, scribbled on a bar napkin, was:

• For sale: baby shoes, never worn.

Here is what the WSJ's blogger came up with to describe various facets of law school:

• For sale: law degree, no promises.
• Three years later, they weren't ready.
• You'll get hired, so they claimed.
• "But I'm tenured", the professor replied.
• The former dean pleaded not guilty.

Here is our contribution:

• Legal profession: not easy to enter. 
• A divorce lawyer? Are you sure?
• Top tier law school: good salary.
• Tier Three law school: huge debt.
• Cooley Law School; marketing in action.

To the law students and legal professionals out there among our readers, post your law school "stories" to our comments.

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Posted in: Cooley Law School,divorce lawyer,Ernest Hemingway,law school,Wall Street Journal

Internet Real Estate Appraisals and Divorce

Ever look-up your home on one of the real estate databases like Zillow or Trulia?  Chances are, you'll find the values lower than you expected.  What's up with that?

Being in the divorce industry, we here at the Law Blogger contract for dozens of real estate appraisals every year.  There are a few licensed real estate appraisers that most of us divorce lawyers know, trust and hire.

Over the past few years, some divorce lawyers have strayed from the concept of having clients pay for an appraisal from a licensed real estate appraiser.  Most appraisers charge between $300 and $500 depending on when the appraisal needs to be completed.

First, lawyers started relying on a basic "market analysis", usually performed via a realtor's drive-by; not an in-home inspection by a licensed appraiser.  Then, from 2008 until just recently, foreclosures had to be factored in or out of the appraisal.

In the last few years, real estate listing and estimate web sites have popped-up.  The two most popular are Zillow and Trulia.  These sites provide quick estimates of the basic value of a home; the problem is the data is too quickly obtained.

These sites seem to under-value real estate by 20 to 25%.  Here's why: the sites use a "secret sauce" that we here at the Law Blogger have learned includes, at least in part, using a distance parameter and simply taking the total square footage of all the homes recently "sold" in that geographic area and dividing that number by the total of the reported sale proceeds.  This calculation yields an average sale per square foot; simply multiply the target property by this average square foot price and, viola, you have an instant estimate; never mind that it will almost always be too low.

The reason the estimate is too low is that the web site formulas catch "dollar sales" and other recorded transfers such as short-sales, and divorce settlements, and lump these nominal net proceeds into the square foot average thus driving that average significantly south.

Also, the Internet estimates do not take a seller's motivation into account, nor are the unique characteristics of a specific home, such as location, taken into account.  For example, a lake-front home is averaged in with non-riparian residences, distorting the intrinsic value of living on the water.

Another  problem with these sites is that the data is not current.  A licensed real estate appraiser must use recent comparable sales.

The lessons here folks: you get what you pay for in appraisals just like anything else; and don't always believe what you read on the Internet.

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Posted in: divorce,divorce lawyer,real estate appraiser,Trulia,Zillow

You Get What You Pay For With Divorce Lawyers

Over the past several years, we here at the Law Blogger have noted several catchy marketing schemes involving divorce lawyers, especially from New York.  These schemes involve a bait and switch by promising a quick result for cheap, or just offering a divorce for an impossibly low fee.

Key word: impossible; at least in most cases. 

The first campaign we noted was touted in Manhattan as the "one-hour-divorce" for about $500.  For the low fee, clients meet with a paralegal and lawyer at the NYC firm to provide their personal information.  The details of their settlement are also, briefly, discussed.

The clients are next provided a ten dollar gift certificate to either McDonald's or Starbucks to burn-up the last hour of their ill-fated marriage while the law office prepares the canned document package for a "one-size-fits-all" divorce.

You cannot have issues, however, or it will cost you extra. The basic premise is that the divorce has to be absolutely 100% "pro confesso" (i.e. uncontested). Basic input is collected from the client and a set of pleadings are prepared within the alotted hour. A standard judgment is generated and executed for entry and filing with the court at the appropriate time, usually six months.

Hopefully nothing changes during the statutory wait period, or all bets are off. Also, under general rules of legal ethics, the firm could not represent both parties to the divorce; but they've apparently figured out which one is their "client".

If the divorcing couple has children, property, or needs support, these issues can be handled in an hour; but will cost more than double. A Prenuptial agreement would all but disqualify the client from the discount program, although a "conventional" divorce would still be available.

Not to be outdone, there is a storefront in Brooklyn that has a sign advertising divorce for $399.  It turns out that this storefront is not a law firm, but rather the office of a paralegal that merely acts as a scrivener for the divorce forms required by New York state laws. 

For the stated fee, the paralegals will assist you in the completion and filing of the forms which are then filed with the court.  Then, it's "up to the judge".  Translation: you are on your own.

This advertised fee is also a classic bait and switch.  Not only are there extra fees for just about everything, you also need to pay filing costs and court fees. 

Apparently, the idea behind the sign is to get you in the door for the advertised low fee.  Once inside, then you learn that you, like 99% of the rest of the population, do not qualify for the low fee, but for a few hundred more bucks, they will take care of you.

It is "buyer beware" for these outfits for sure.

Here in Oakland County, we here at the Law Blogger and at Clarkston Legal, believe that the most important asset of any divorce lawyer is their reputation.  If the attorney is experienced and gets good results, it will be reflected in their fees.

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Posted in: Brooklyn,child custody,divorce,divorce lawyer,legal fees,marital estate,New York City,Oakland County

The Grey Divorcee

A recent study published by the Bowling Green State University concludes that divorce has replaced widowhood as the primary reason many seniors are single later in life.  No surprise there, as the United States has long held the highest divorce rate in the world.

As the baby-boomer generation ages, more of its members have been divorced than in any prior generation at any point in history.  Add to this the more complex marital biographies of average baby-boomers [second marriage, recently divorced, ever divorced], and you cannot ignore the growing prevalence of divorce in our society.

The study concludes that as widowhood has declined over the past two decades, the divorce rate among the middle-aged and seniors has doubled.  Also of note in this demographic is that, among divorced seniors, they achieved this status much earlier in their lives than in the past.

Another conclusion drawn by this study is that over the next two decades, as the growth of the "older" population accelerates, so will the divorce rate among mature adults.

One option to consider is separate maintenance.  This option, although not for everyone, has the advantage of allowing an unemployed spouse to maintain health insurance coverage.  In most cases, this saves the unemployed spouse approximately $500 per month by not having to  pay an insurance premium.

If you are over 50 and facing the tough options of divorce in Oakland County, contact us for a free consult. We can  provide you with answers to your questions and concerns.

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Posted in: baby boomer,divorce lawyer,grey divorce,legal separation,Oakland County

Michigan Supreme Court Acknowledges an "Impossibility" Defense to Felony Child Support

This blog has covered the child support saga of Ms. Selesa Likine.  Her felony child support conviction was just reversed by the Michigan Supreme Court, and her case has been sent back down to the Oakland County Circuit Court.

The family court was created by statute pursuant to the Michigan Constitution back in 2000; now, there is a family court division for every county in Michigan.  Family courts issue support orders that obligate a parent to pay a specified sum each month for the support of their minor children.

Ever since parents have been ordered to pay child support, there have been those who cannot or will not make their required  payments.  There are different reasons for not paying: some withhold payment from their ex-spouse for revenge; others simply cannot afford to pay, or do not put a high priority on their child support obligation.  [e.g. the "Worm" aka Dennis Rodman.]  Still others find it impossible to satisfy their court-ordered obligation based on hard economic circumstances.

Regardless of the reason, when a child support payor fails to pay pursuant to a court order, an arrearage builds-up and the courts take notice.  Quite apart from the family court, the county circuit courts of general jurisdiction are the courts where felony criminal matters are prosecuted.

The Michigan Penal Code has a law on the books known as "failure to pay child support"; a four-year felony.  This felony has always been considered a "strict liability" crime, meaning that there is no defense to the charge once the prosecutor proves that the family court issued a support order and the payor, for whatever reasons, did not pay.

On Tuesday, the Michigan Supreme Court addressed the felony child support statute in People v Likine.  This case is significant to the extent that it expressly reverses a Court of Appeals decision that precludes a defendant from asserting any "ability to pay" defense whatsoever.  The Likine Court held that "impossibility to pay" is an affirmative defense on which a jury can be instructed at a trial provided certain offers of proof are tendered.  Also, the Court reaffirmed that, despite the availability of this affirmative defense, felony child support remains a "strict liability" crime.

In the initial divorce case, Selesa Likine was diagnosed with depressive schizoaffective disorder.  Family Court Judge Linda Hallmark initially ordered her to pay only $54 per month in support; a relatively low amount.

Likine's support was increased, first to $184 per month then to $1131 per month, on the basis of "imputed income".  At a support hearing conducted before the FOC Referee, evidence revealed that Ms. Likine made [false] representations of high income on two mortgage applications in order to purchase an expensive home.

Based on these representations, and based on the  projected earnings of someone paying on that large a mortgage, the FOC Referee imputed income of $5000 per month to Likine.  Of course, this was a fiction; not only did Likine never earn that much income, she basically had no chance whatsoever to satisfy her new increased child support obligation.

Enter the criminal charge against Ms. Likine.  When her lawyer tried to "tell it to the judge", and then to the jury, about her lack of income, it was too late.  The trial judge relied on the holding of a Michigan Court of Appeals case [People v Adams] precluding Likine from presenting any evidence on her so-called "inability to pay."

Bottom line: now, a felony defendant is able to offer proof of an "impossibility" to pay, but not an inability to pay.  The latter concerns must still be addressed to the family court.  The reason is that our criminal jurisprudence requires a "mens rea" or "guilty mind" as a required component to every crime listed in the Michigan Penal Code.

Note to attorneys: The Likine case was a companion case with two other consolidated cases.  In those other cases, the felony child support convictions of the child support payors were NOT reversed on the basis that neither defendant had preserved the "impossibility to pay" issue in the trial court.  

Just sayin; had they done so, those convictions also may have been reversed.

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Posted in: child support,divorce lawyer,felony child support,Judge Linda Hallmark,Michigan Penal Code,Michigan Supreme Court,Oakland Circuit Court,Selesa Likine

Military Divorce: Part II

This is the second post in our series on the topic of military divorce.

Jurisdiction

Every court in the United States has its own laws about jurisdiction meaning rules regarding what cases the court is allowed to hear. One form of jurisdiction is personal jurisdiction—does the court have the right to compel a person or organization to appear before it and pass judgment? Another form is subject matter jurisdiction—does the court have the right to hear this particular case about this particular topic?

A court of a state where either spouse legally resides, or where the service member is stationed, can have jurisdiction over the divorce.

Retirement Pay/Benefits

As was discussed before, the state court is what decides the extent of benefits the former spouse of a service member is entitled to receive. Depending on the state, marital property from a divorce can be divided equitably (i.e., what the court considers “fair”) or it can be divided equally (a 50/50 split). The Department of Defense though, places a ceiling on benefit awards to former spouses.

No more than 50% of a service member’s benefits can be paid out to former spouses, even if a) the divorce decree states otherwise or b) the service member has more than one ex-spouse. It’s first come, first served, so if the first ex-wife was already awarded 50% of the member’s benefits, then any subsequent ex-wives will be denied a portion of the service member’s pay, regardless of what her divorce decree says. This can come as a shock to many and is an important thing to be aware of if your spouse is on his or her second marriage.

One more jurisdictional wrinkle should be addressed. In order for a court to issue an enforceable order regarding a service member’s retirement pay, it must have personal jurisdiction over the service member. By way of example, if a spouse files for divorce in her home state of Georgia, but Georgia has no personal jurisdiction over the service member spouse (no domicile, no residence or no consent), then the Georgia court is not able to enforce any order over the disposition of the military benefits.

Garnishments and Child Support

Each of the military services have regulations which require members to “provide adequate support” to family members. The problem comes with implementation; no branch of the military has the authority to force an individual to pay such support against his or her will.

There is no court martial equivalent to Michigan's felony non-support.

The best way of ensuring you receive the child or spousal support that you are due is by obtaining a court order from the family court in your county. This includes “temporary support orders,” that a court can issue pending a final resolution of your divorce. If a civilian court has issued a formal order and a member of the military still fails to pay, you are then permitted to return to court and obtain or garnishment of your spouse’s wages.

42 USC § 659 is the federal law that gives state courts jurisdiction to order garnishments of wages from military salaries and benefits. Though state law determines the procedure for how to obtain a garnishment order, federal law dictates how the garnishment order is applied to military pay.

Unless state law specifies a lesser amount, federal law provides a limit of 50% of the member’s total disposable earnings for any workweek if the member is currently supporting a second family (spouse or child) and 60% if the member is not supporting a second family. The percentage may be increased by 5% if the child support (or spousal support) arrearage is 12 weeks or more.

42 USC § 665 gives jurisdiction to state courts over military members for child support proceedings. Section 665 has the added provision of requiring that no action shall be taken regarding the garnishment of wages of a service member until the member subject to the child support proceeding has either consulted with a Judge Advocate General, or until 30 days have passed after the service member was given proper notice of the child support proceeding in instances where such a consultation was not possible.

In the last post of this series, we will address adultery and other common divorce-related problems in the context of the active soldier.

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Posted in: court martial,divorce lawyer,family court,family law,military divorce,Uniform Code of Military Justice

When Broken-Down Celebrities Cannot Pay Child Support Obligations: Dennis Rodman

Former Piston &
Hall of Famer Dennis Rodman

Just last August, I waxed nostolgically when I read that former Detroit Piston Bad Boy Dennis Rodman had been inducted into the NBA's Hall of Fame.  He earned that distinction by contributing to five NBA championship teams; two with the Pistons, and three with the Bulls.

Fast forward a few months, and here was Rodman's pro bono lawyer explaining to a family court judge, then to the press, that the man was broken down, sick, unable to earn the millions he did in the days of yore and thus, unable to pay his child support obligations.

According to the LA Times, his child support arrearage for two children is fast-approaching one million dollars.

As a Special Assistant Attorney General assigned to prosecute felony child support cases, I've seen a few professional athletes pop-up as criminal defendants with eye-popping arrearages.  These cases highlight the peaks and valleys characterizing the income history of many star athletes.

The basic problem is that these superstars show multi-million dollar income, but for a very short period of time.  Many of them spend the dough on a lavish lifestyle rather than save and when it all comes to a crashing end, they fail to seek an adjustment of their support obligation in the family court; hence the whopping arrears.

Rodman's case was different; he was able to take his insane schtick to the bank for years following his NBA earning years.  Now that he has aged and is reportedly ill, all that has gone away.

Here in Michigan, child support is controlled by the Michigan Child Support Formula; literally an algorithm taking into account the relative income of the child's parents, as well as the overnight parenting schedule.

Like Michigan, some states have adopted support formulas that "top-out" for high earners. Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support. Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning payors, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth. This is particularly the case where the high income is short-lived; like with most professional athletes.  Rodman's income went on for much longer than most.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support. Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households. These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

It will be interesting to see whether the family court judge will give Rodman a break and reduce his child support.  But arrearage is arrearage; due and owing to his two children.

We cannot help but wonder, over the past several years, whether Rodman spent his fortune on himself rather than taking care of his children.

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Posted in: child support,Dennis Rodman,Detroit Pistons,divorce,divorce lawyer,Michigan Child Support Formula

Should Your Divorce Go To Trial

On Friday, I was sure that I was going to spend the entire day in a divorce trial; my first in a quarter century of practice. Didn't happen.

Why? Because trial in divorce rarely makes sense. This case, in Genesee County, had it all: a GAL for the minor children; a joint bankruptcy in the middle of the proceedings; two [failed] mediation sessions; motions from each side, jousting for the entry of temporary support and parenting orders.

The case was positioned for trial because both sides held onto rigid positions on many of the issues important in any divorce proceeding: custody, parenting time, child support, alimony and debt apportionment. My law clerk, a third year student at Wayne State, prepared an excellent trial brief; she had compiled a trial notebook, and we were prepared and ready to go.

As the case was the oldest on Judge Kay Behm's docket [18-months], I knew it was going to resolve one way or another.

The case did resolve, after 8-hours in the courtroom, because each of the parents made common-sense, strategic compromises. In the end, the parents each looked past their own personal wounds, and their self-centered agendas, and took into account the best interests of their minor children.

Don't get me wrong, I would rather conduct a trial than spend the entire day as I did Friday, painstakingly going over, discussing, negotiating, and resolving every aspect of a failed marriage and the flotsam that goes along with it. But as a divorce lawyer, I keep the best interests of the client in mind. Trial almost never makes sense.

So it may be that when I finally retire, I will have never conducted a divorce trial. Actually, that is a client-service goal of mine.

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Posted in: divorce,divorce lawyer,divorce settlement,family law,Genesee County Family Court,Judge Kay Behm

Narcissus Gets a Divorce

Narcissus admires his reflection.

In my decades of divorce practice, I've encountered folks who, if a psychological evaluation was completed, would be characterized as having narcissistic personality disorder.  A few of these peeps have been clients; others have been on the opposing side.

Either way, everyone involved is in for a rough ride.

Over the past several years, "narcissism" has also taken on a connotation-du-jour.  The diagnosis being made by dime-store psychologists (i.e. parties to family court litigation) whenever the object takes an opposing or contrary view. 

What is narcissim, really?

According to the Mayo Clinic, narcissistic personality disorder is "characterized by dramatic, emotional behavior, which is in the same category as antisocial and borderline personality disorders."   A person with this personality disorder may exhibit some of the following characteristics, according to the Clinic:

• Believing you are better than others;
• Fantasizing about your success, power and attractiveness;
• Exaggerating your achievements or talents;
• Expecting constant praise and admiration;
• Ignoring other's feelings and emotions;
• Believing and acting like you are really, really special;
• Taking advantage of others;
• Expecting others to go along with your often super-sized schemes and plans;
• Exhibiting jealousy toward others;
• Believing others are jealous of you;
• Unable to maintain healthy inter-personal relationships;
• Easily hurt or rejected;
• Fragile self-esteem

If you know someone with more than a few of these traits, run.  If you are married to such a person, get ready for the inevitable divorce proceeding when you finally throw in the towel, realizing that your spouse will never change. 

If you are a lawyer representing such a person, affix your chin strap and bring a lunch.

In the divorce context, the narcissist fares quite poorly.  The above-listed features of this personality disorder are routinely identifed and rigorously addressed by family court professionals. 

In this process, the personality flaws of the narcissist are forced itno the lab for a full-on forensic evaluation.  Many of the tools in the family court professional's arsenal will be brought to bear upon the conduct of the narcissist in an effort to force short-term modification, and to achieve a stable platform.

Some red flags that I've gleaned over the years: a narcissist will change lawyers often, blaming the status of the case on the mistakes of prior legal counsel.  Also, the register of actions in the case of a narcissist will often be a mile long, peppered with hearings, motions, and more hearings.

When a narcissist is embroiled in a divorce proceeding, the children are used as pawns.  Any input from the Friend of the Court [either via a referee, family counselor, or social worker] or from a therapist, is rejected; the narcissistic parent must be dragged to court, kicking, screaming and cursing.

In the years leading up to such a divorce, the other spouse will often report being chronically verbally abused and bullied by the narcissist.  In fact, this dynamic will set the initial tone of the proceeding.

The process will next feature a series of attempts, which will take some time, where the professionals try to arrest the insidious and pervasive conduct of the narcissist.  Arrest, but not change; this person will not change.

The other spouse many times will exhibit classic signs of emotional abuse during this painful process: low self-esteem, exhaustion, a desire to give up or give in.  This person needs a strong focused divorce lawyer.

And counseling. 

During the divorce process, the other spouse is well advised to minimize the face-to-face contacts with the narcissist.  If children are involved, then communicate through emails and texts. 

If you feel threatened at home or during parenting exchanges, seek exclusive use of the marital home.  If you are separated, use a neutral transition point for the parenting exchanges; most family court judges will grant such a request simply to err on the side of everyone's safety.

Finally, stay focused on the process knowing that the process will eventually come to an end.  The Michigan Supreme Court has mandated that county family courts conclude divorce proceedings within a year.

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Posted in: divorce,divorce lawyer,family court,family law,family law lawyer,Mayo Clinic,narcissism,narcissistic personality disorder,Narcissus

Valid Prenuptial Agreements Require Full Asset Disclosures

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts.  Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.

A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties.  This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals.
The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court.  The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.

The contract at issue in the Waller case waived the Wife's interest in a statutory share of her husband's estate in favor of the Husband's adult children.  The Wife challenged her Husband's estate at his death, despite her execution of the antenuptial agreement.

The contract was upheld by the probate court judge.  In reversing the probate court, the Court of Appeals focused on the asset disclosure and lack of evidence that any proper disclosure had been made by either party:

Accordingly, fair disclosure is required  under statute and caselaw in the context of
determining whether a prenuptial agreement can be deemed valid and enforceable.  The record indicates that there was no formal disclosure of assets by either decedent or Waller at the time of or before the execution of the  prenuptial agreement, such as through the presentation or exchange of written asset lists or through a verbal communication or declaration electronically recorded so as to preserve proof of disclosure.  The prenuptial agreement itself did not contain an itemization of assets and values,  nor did it indicate that disclosure of assets had taken place.  

Indeed, there is no evidence of even an informal, off-the-cuff discussion between Waller and decedent regarding the nature, extent, and value of each other’s assets prior to the execution of the agreement.  The probate court essentially found that Waller was sufficiently familiar with the assets held by decedent, making it unnecessary for decedent to redundantly disclose his assets to Waller before the agreement was signed, where  the assets had already been effectively “disclosed” to her simply through the evolution of their relationship in which familiarity with each other’s property naturally occurred.  We agree with the principle that if a party challenging a prenuptial agreement was fully aware of the other party’s assets and their value at the time of execution, an argument that there was a failure to fairly and formally disclose assets should fail; the purpose of a disclosure is to make a party  aware of what he or she may be giving up in signing a prenuptial agreement.

The Court of Appeals held that under such a record, the (rebuttable) presumption of non-disclosure should have been applied to invalidate the prenuptial agreement in that case.

Also, the Court of Appeals placed significance on the lack of a financial statement or schedule of assets.  These are typically attached to the antenuptial agreement.  This way, there can be no claim, as in the Waller case, of a failure to disclose, or a triggering of the presumption of nondisclosure.

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Posted in: antenuptial agreement,divorce,divorce lawyer,Michigan Court of Appeals,Oakland County Family Court,Oakland County Probate Court,prenuptial agreement

6 Holiday Tips for Divorced Parents

Often, tensions escalate over the holidays as divorced parents struggle with the demands of scheduling the children to accommodate two households.  Holiday schedules are already difficult without the complications of a divorce judgment or divorce proceeding.


Here are some practical tips in dealing with holiday parenting time gleaned from divorce lawyers around the state.

1. Reduce an alternating holiday schedule to a court order.  It is always best for the children when the parents can agree on a schedule.  Alternating holidays is most common when drafting the parenting schedule.  When both parents live close to one another, many families utilize a shared holiday model where the children spend time with one parent until noon, and the other  parent for the balance of the day; then the next year, they switch.  This works for Thanksgiving, Christmas, New Year's Day and other holidays.  
2. Discuss the schedule with the children.  One solid co-parenting tactic is for both parents, once an agreement is reached, to communicate the schedule to the children.  This way, the children know in advance what to expect.  This can best be accomplished when both parents commit to rational communication and reasonable compromise for the children's sake.
3. Keep the activities simple.  This tip is particularly essential when the children are relatively young and if the divorce is still fresh.  The wounds of the once-whole family have yet to heal; holidays are particularly painful for both children and parents.  Therefore, it makes sense to tone down the activities and avoid rushing hither and yon during your now-scheduled parenting time.
4. Let your child express her feelings to you.  It is important to allow your children the opportunity to express their feelings of loss and disappointment and for you, as the parent, to validate those feelings.  What the child once experienced as an intact family unit has been fractured by divorce.  Therefore, pretending that everything is fine, or over-scheduling a whirlwind of activities to the point of distraction, will only add to the stress of your holiday parenting time.
5. Involve your extended family.  The more love the child feels during the years immediately following a divorce, the better.  Therefore, schedule some quality family time with members of your extended family.  Certainly, this would be a great opportunity for your children to spend time with their grandparents, aunts, uncles and cousins.  If your extended family is highly dysfunctional then, er, not-so-much.  
6. Avoid including a new "significant other".  This is the last thing you want to do at the holidays; not the time or the place.  Including your "significant other" too soon is a selfish thing to do to your children.  Upon reflection, you would probably agree that you would be doing that for yourself, certainly not for your children.  Children of divorce already struggle with guilt, a sense of loss, and insecurity.  They often perceive the introduction of a stranger, especially one that is close and intimate with their parent, as a threat, not a benefit from their parents' divorce.

Of course, the above holiday parenting tips must be adjusted to be age-appropriate.  There is no one-size-fits-all approach to this touchy subject.

Finally, a positive parental attitude over the holidays does wonders for a child's comfort and confidence.  Be the adult, not the child.

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Posted in: divorce,divorce lawyer,parenting schedule,parenting time

High Income Child Support

In 1988, the federal Family Support Act required all states to enact presumptive child support "guidelines" in order to preserve federal funding on a variety of family-oriented programs.  Since then, Michigan has adopted the Michigan Child Support Formula.

In response to the Act, some states adopted support formulas that "top-out" for high earners.  Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support.  Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning families, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth.  This is particularly the case where the high income is short-lived; like with most professional athletes.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support.  Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households.  These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

But what really is in the best interests of little "Richie Rich"?  Some of life's best lessons are learned with less, not more.

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Posted in: "Michigan Child Support Formula",child support,divorce lawyer,family law,Family Support Act

Post-Divorce Nesting

Brown Bird Design for Time

This week in Time Magazine, there is a story in the "Society" section about a mode of parenting known as, "Nesting".  This is where divorced parents each secure a residence beyond the former marital home; the couple's children remain in the marital home, to "nest".

The theory behind nesting is that it seeks to minimize the sense of upheaval that children of school age often experience during and after their parent's divorce.

Time's Belinda Luscombe speculates that the nesting mode of post-divorce parenting has emerged over the past decade as an innovative version of co-parenting.  It remains rare, however, to get both parents on the same page be able to pull it off.

In the past decade, I have completed nearly 250 divorces and only two of those featured a nesting arrangement.  Of those two cases, one of nests was destroyed, via foreclosure.

On the other hand, the difficult real estate market has forced many divorcing couples to hang onto their former marital home; like it or not.  Nesting would seem to be a viable option.  Usually, however, one of the parents "takes one for the team" and remains in the marital home, or the couple "walks away" from the home to begin their new post-divorce lives under the cloud of foreclosure.

Proponents assert that the nesting arrangement eliminates the continuous shuffling between two homes by the children that comes with a traditional parenting schedule; the parents do the shuffling in a nesting arrangement.  Also, for children of a certain age, the arrangement allows them to continue living and going to school in a familiar environment, their childhood home, while they adjust to their parents' divorce.

Most family court judges look upon nesting arrangements with a certain degree of skepticism, if not outright scorn.  In family court, however, parents are free to make whatever arrangements they desire so long as the judge can be convinced it is in best interests of the children involved in the case.

As a temporary post-divorce parenting technique between two cooperating amiable co-parents, nesting can work.  It very well may provide the minor children with a better opportunity to adjust to the strains of divorce.

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Posted in: Belinda Luscombe,child custody,co-parenting,divorce,divorce lawyer,family court,family law,Time Magazine

When Your Children Live with a Murderer Endorsed by the Family Court

A very worried Trisha Conlon

This bizarre family law custody case is playing out in Seattle, WA.  The unusual facts of the case bring into sharp focus the challenge of putting parents' often-questionable decisions through review by a family court judge.

In 1995 Trisha Conlon married Marine fighter pilot John Cushing, Jr.; a man with a tragic past.  His ex-wife, Kristine Cushing, shot to death their two young daughters, 4 and 8, while they slept in their Southern California home.  This was in 1991, when Mr. Cushing was on active duty in the Marine Corps and Mrs. Cushing, by all accounts, was an ideal soccer Mom.

Kristine Cushing's murder trial featured the now infamous "Prozac Defense"; she was found guilty by reason of insanity and sentenced to a mental institution where she did a nickle, followed by a decade of intensive in-patient style psychiatric treatment.  She was discharged without restriction in 2005.

Meanwhile, John Cushing tried to put the pieces of his life back together.  He married Trisha Conlon, with whom he had two sons.  Sadly yet predictably, the couple divorced in 2004.  Mr. Cushing's next "life-choice" was to re-marry his first wife, Kristine Cushing, the now-excused infanticidal murderess.

Today, Lt. Col. Cushing (retired) lives on Vashon Island, WA with a split-custody arrangement whereby one of his sons lives with him; the other lives with Ms. Conlon.  The brothers reunite during holidays and vacations.  Under this custody arrangement, Conlon eventually became aware that her ex-spouse not only re-married his first wife, but also shared a marital home with her and Conlon's son.

This information was difficult to come by as Mr. Cushing attempted to conceal his family arrangements.  The distance between the two parents provided the necessary cover.  Ms. Conlon, now living in Oregon, resorted to her family law attorney and his private investigator.

Seeking a change in custody to place her son into her home, Conlon brought proof of the Cushing reunification to the attention of the family court in King County, Washington (Seattle), arguing the arrangement was a "change in circumstance" detrimental to her son's best interests.  She lost her case last month; a hearing on appeal is set for next week.

This case is a testament to the lengths people will go in the name of love, marriage, and progenitorship. Many, perhaps most of us, would not make the same decision as the Lt. Col. in this case; infanticide is just a flat-out "deal-breaker".  On the other hand, imagine the love and forgiveness Cushing must have for his first wife to be able to take such a risk.

To the extent that his decision has placed his son in harm's path, it will be up to a family court judge of the King County Superior Court in Seattle to determine what is best for the boy under its jurisdiction.

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Posted in: child custody,divorce,divorce lawyer,family court,family law,infanticide,Prozac,Seattle,split custody,Trisha Conlon,Vashon Island

Five Red Flags that Your Divorce Attorney is on the Wrong Road

Divorce lawyers are expensive; far too expensive for what most families need in a divorce proceeding.  If you are involved in a divorce, here are some warning signs to help you determine whether you are getting your money's worth for this important service.

1.  Lack of Communication.  A breakdown in communication is the number one cause of client dissatisfaction with their divorce attorney.  If a lawyer does not return your call within a reasonable time, she is either too busy or does not care about your case.

We all know in this era of smart phones that our lawyers get our calls, emails, and text messages within minutes of pushing the send button.  Has your lawyer provided a cell phone contact; do you have access to her staff?  If not, then you are not a priority in their office.

2.  Does not know your case.  Any engaged lawyer will have several cases going at one time.  Every family is different.  But a good lawyer will be sharp enough to master the basic facts and dynamics of your family.  The next time you have a status meeting with your lawyer, listen carefully to the lawyer to determine whether he speaks in general terms; or whether he has a specific plan that applies to the facts of your case; your family.

3.  Excessive Billings.  Do you get sticker shock each month when you examine your divorce attorney's invoice?  More troubling: do you even get a monthly invoice?  Although many lawyers will have you believe that family law is "rocket science", it is not.  If you are being billed more than $250 per hour for non-court related tasks such as preparing "summaries", checklists, or budgets, you are getting fleeced.

One trick unethical lawyers employ is to bill your file at the end of the proceeding, after you cut your deal, and after they see what's available for their fees.  Often in such cases, a premium is baked into the final fee.  Get your fee agreement in writing at the beginning of the process and insist on monthly invoices.  When you receive the invoices, open them immediately as you would any other bill and examine them for accuracy.  If you do not agree with items on the invoice, call the lawyer to discuss it right away; it is more difficult to raise fee issues several months down the road.

4.  Arrogant and Antagonistic.  The "old-school" image of a classic lawyer is that she holds herself above everyone else; is smarter than everyone and not afraid to prove it over and over again.  These lawyers carry themselves with a certian touch of, er, arrogance.

In the trenches of family law, however, the real trick is to find a reasonable solution to your specific issues that works for everyone, particularly if there are young children.  Arrogance is not a trait that gets this done.  Does your lawyer show condescension toward you or does he repeatedly become antagonistic toward opposing counsel?  If so, this is a sign of weakness, not strength.  You may want to consider changing counsel.

5.  Too Many Excuses.  If your divorce lawyer lacks candor, fire him immediately.  Unless he can effectively communicate with you on time regarding your specific issues; unless she follows through and does what she says, delivering service in your case on time, you have a big problem.

We hope these tips help you identify whether you are on the right road with your divorce attorney.  After all, your life is in their hands.

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Posted in: attorney fees,divorce,divorce lawyer,family law lawyer