Remarriage and Spousal Support The law states that unless a couple agrees to other terms within their divorce judgment, a remarriage is considered a change in circumstances, and the court may terminate spousal support if the person receiving support remarries. MCL 552.13. It is not an automatic termination, but remarriage is a change in circumstances that authorizes the court to end spousal support if the court chooses to do so. Agreements A couple can also agree in their divorce judgment that spousal support will end when the person receiving support remarries. If this is the agreement, then support would end upon remarriage. Lueck v. Lueck So if a remarriage is a change in circumstances for either modifying or terminating spousal support, what exactly is considered remarriage? That may seem like a straightforward question, but it was a question that went up to our Michigan Court of Appeals in the case of Lueck v Lueck, a published case decided in May 2019. Details of Lueck v. Lueck In Lueck, the husband and wife agreed in their divorce judgment that spousal support would continue for a set amount of time or “until wife remarries.” After the divorce, the wife met someone special and had a religious commitment ceremony at her church where they exchanged traditional vows and rings. However, there were no witnesses and they did not apply for a marriage license. Lower Court ruling in Lueck v. Lueck The husband who had been paying spousal support filed a motion with the court to terminate spousal support because the wife had remarried. The husband argued that the divorce judgment referenced remarriage as a termination event, not just a “legal marriage,” and the commitment ceremony was essentially a marriage ceremony. After a full evidentiary hearing, the trial court agreed with the husband and concluded that the wife’s actions were done to defraud the court and circumvent the divorce judgment so that she could continue to collect spousal support. The court determined that equity required that spousal support be terminated. Court of Appeals ruling in Lueck v. Lueck The wife appealed the trial court’s decision. The Court of Appeals disagreed with the trial court and overturned the ruling. The Court of Appeals cited to Michigan law, which states that Michigan does not recognize common law marriage. A marriage license is required in order to legally marry in Michigan. MCL 551.2; MCL 551.101. Thus, the only marriage recognized under Michigan law is one that is based upon a marriage license. The Court of Appeals stated that the divorce judgment was unambiguous when it referenced remarriage, as marriage could only mean legal marriage pursuant to a marriage license. The wife could continue to collect spousal support as she was not legally remarried. The husband has asked for leave to appeal to the Michigan Supreme Court, so stay tuned!
Spousal Support / Alimony For divorces that are settled and finalized after December 31, 2018, all spousal support/alimony payments are non- taxable to the spouse receiving support and non-tax deductible to the spouse paying support. This is a significant change from the prior law, where spousal support/alimony was both taxable to the receiving spouse and tax-deductible to the paying spouse, providing it met the necessary criteria. This will ultimately have an effect on how spousal support is negotiated as it will likely result in less money being available for spousal support due to the inability to deduct the payments on tax returns. Personal Exemptions and Child Tax Credit Beginning with the 2018 tax year, the federal personal exemptions for dependents have been eliminated. However, Michigan exemptions are still in place. Interestingly, while the exemptions have been eliminated, there are child tax credits and a family tax credit that are now available. It is important to keep the child tax credits in mind when negotiating tax issues in a divorce, custody, and support case. Personal Deductions The personal standard deductions for taxpayers have been increased significantly, which will effect what types of personal deductions will be available. This is something to consider as one negotiates these deductions in divorce cases, particularly as it relates to mortgage interest, property taxes, and charitable contributions. Conclusion It will be important to consider all of these changes as you negotiate settlements in divorce cases, custody cases, spousal support and even child support cases. If you need more detailed tax advice, please consult a tax professional.
What is Mediation? Mediation is a process in which a neutral third party meets with you both, facilitating conversations to help you settle all issues in your divorce: custody, parenting time, child support, spousal support, property and debt division and taxes. The mediator helps you stay calm and rational and ensures that all topics necessary for divorce resolution are discussed. By mediating from the beginning of the case, preferably before either of you files in court, you avoid the delays, excessive legal bills, and trauma that result from the traditional adversarial court process. Most importantly, you protect your children from the turmoil of seeing their parents fight it out in court. Mediation works even if you are very angry or hurt, even if you can’t talk with each other very well, as long as you are both willing to try, willing to be open to the possibility of finding mutual resolutions that will work for you and your family. Below is a guide explaining why you should mediate your case instead of litigating it. Mediation Makes More Sense (and Cents) than Litigation. Most divorces, more than 95%, settle, so it makes sense to start out in settlement discussions. With mediation, from the first session, you discuss resolutions, with the mediator guiding your discussions, helping you stay focused and rational to identify options and find solutions. You talk directly with each other and work together to get the information you need for wise decision-making and to reach resolutions you both can truly live with. You are both “given the floor” and the mediator ensures each of you are heard and understood and that the discussions proceed respectfully and productively. With litigation, the first two to three months are spent with lawyers filing motions in court and submitting “Discovery” to the other side (request for production of documents and questions, sometimes 20 to 30 pages long). Motions are requests for the court to decide issues of temporary child support and temporary parenting plans, as well as how to deal with finances while the divorce is pending (each side submits a brief explaining why they are right, the lawyers then fight for their side in court, and the judge rules). You are paying your attorneys to write and respond to these Motions and for their time in court. The results of these Motions will be temporary orders, so there will still be fighting to determine the final court order or final settlement. Discovery is the process of gathering any information that could possibly be relevant to your divorce, and often attorneys have templates they use, which they send out in almost every case, not necessarily tailored for your specific needs. You, of course, also pay your attorneys for creating and responding to Discovery requests and for reviewing all documents exchanged. Plus, during these months, there is usually little to no discussion of settlement, and you and your spouse are often counselled not to talk to each other about substantive issues, but rather to talk only to the attorneys. Mediation requires full disclosure of all information, but you exchange only the information you actually need for knowing decision-making. From the beginning, you discuss everything together, including this information exchange, but also how to handle finances and parenting during mediation and upon divorce; together you will determine how to meet your needs and the needs of your children in a way that works for all of you. Every moment is spent in direct communication with each other, for the purpose of moving you forward efficiently and effectively. You Are In Control of All Decisions, including whether to use attorneys and other professionals. One of the main purposes of mediation is self-determination. You are in control of how the process will work, what information is discussed and exchanged, and what decisions are made. In addition, you get to decide if you want attorneys involved and if so, how much or how little to use those attorneys. Some mediation clients do not use attorneys, some use them only as consultants, to provide negotiation coaching and advice between sessions and to look the agreement over before signing, and some people use attorneys to attend sessions with them to help them negotiate. Usually, mediators have attorneys they can refer you to, attorneys the mediator trusts, who are trained in helping mediation clients. These attorneys understand that if they are referred for mediation, their role is different - their role is not to take over the case and win a war, their role is to be counselor and advisor, to help you reach a settlement that is in your best interest and your family's best interest. Attorneys in this role, naturally, spend much less time on your case than if they litigated it, so their fee is far less. Mediators also can refer you to financial advisors and divorce or parenting coaches as necessary. So, you do not have to choose between mediating or having professionals help you, you can have it all. Mediation Saves You Time, Saves You Money and Is Less Stressful. Many people who have never been involved in a lawsuit think you get your day in court to tell your story and then the judge issues a decision. That is just not how it works. Because most cases settle, you will likely never get in front of a judge! Beyond that, even if you do have a trial, you won’t really get to tell your story unfettered, because trials are conducted by attorneys asking witnesses questions, not by witnesses providing long narratives. The reality is that the path to trial is long, stressful, adversarial, very expensive and rarely leads to satisfying results. The purpose of mediation is to get you talking about how to settle every issue right away, so the process is usually much faster, much less expensive, much less stressful and overall much more satisfying than litigation. --Please click on the following link for a table that explains the difference between early mediation and litigation - http://uploads.documents.cimpress.io/v1/uploads/98015d34-f307-441b-8ae7-998f08dc94d1~110/original?tenant=vbu-digital
10 TIPS TO HELP YOUR CHILD THROUGH DIVORCE Helping your child through your divorce may be one of the most difficult tasks you will ever face as a parent. The following is a brief list of practical tips that can help as you walk through this difficult time with your child. 1. Be honest. Don’t lead your child to believe “dads away on business” or “everything is going to be wonderful”. Children are very perceptive. They know if a parent is trying to hide something, even if the purpose is to spare their feelings. Children need simple straightforward answers they can understand, without blame or making anyone wrong or bad. 2. Let your child (ren) know it is not their fault. All children assume they may be responsible for their parents’ breakup. Children need to be gently reassured repeatedly over the first couple of years that the divorce is an adult decision having nothing to do with them or their behavior. 3. Listen quietly. Children have many questions, feelings, assumptions and concerns. About divorce. Many parents find it difficult to sit quietly and listen to their children talk without trying to interrupt with a “fix-it” statement. Children need to feel heard with quiet patience and undivided attention. 4. Let your child know however they respond to the divorce is o.k. Many children hide their feelings of sadness, grief, anger and confusion because they are afraid expressing these feelings will upset their parents. Children need to know all their feelings are acceptable. 5. Let your child know it is normal for them to want their parents to get back together again. Children can feel ashamed about this very normal wish. You can explain to your child that once divorced, it is very unlikely that people ever get back together, but their wish for reconciliation is very normal. 6. Reassure your child of personal safety. Many children are concerned that if their parents divorce there will not be enough food or shelter or clothing for them. Children living with single mothers may also need reassurance that she has a plan to protect them in case of fire, “burglars” or “ghosts”. 7. Ask your child about friends of theirs whose parents are divorced. This is a good way to learn of your child’s fears and assumptions about divorced parents, and gives you the opportunity to clear up any misconceptions and remind them that other children have gone through what they are now going through. 8. Don’t put your child in the middle or try to make them take sides. Don’t say anything about your ex in earshot of your child (ren). Don’t have your child (ren) carry messages to your ex. Children need to be able to love both parents. If one parent is disapproving of affection a child expresses toward the other parent, the child will begin to withdraw, become dishonest or depressed. 9. Spend time with caring friends. Having a supportive network can protect your child from becoming your confidant and feeling responsible for your emotional well-being. It can also give you a higher frustration-tolerance for the normal everyday things kids do. 10. Read together and talk about a book on divorce for children. This will help you explain important facts to your child (ren) and help your c CUSTODY AND VISITATION 1. Are there guidelines for child custody in Louisiana? Most parents realize that it is in their best interest and the best interest of their children if they can decide on custody and visitation without the help of the court. Leaving these issues up to the court creates an element of surprise that most people can live without. Louisiana does have Child Custody Guidelines that the court must consider if the parents are incapable of being rational with one another in making these very important decisions. 2. Does there need to be a custody agreement? Yes. This is not only for the benefit/protection of the parents, but it is in the best interest of the children as well. 3. When is custody decided? Normally unless there is a history of physical abuse the Court will order the parties to go to mediation to discuss custody arrangements. If the parties can not agree to anything the court will often enter a temporary order regarding custody giving one party domicillary custody and providing visitation for the other until a trial can be held. 4. What is Joint Custody? Joint custody means that both parents share the legal custody of their child and should try to work together to make decisions that affect the child’s life. 5. What is Domicilary Custody? Domiciliary custody is the parent that the child resides with the majority of the time. If there is a disagreement in a joint custody situation, it is the domiciliary parent whom the ultimate authority to make decisions rests with. 6. Can a visitation schedule be modified? Sure. Neither you, nor your former spouse, can tell what the future will hold. Things obviously change. Typically visitation schedules do change and can be done without the help of the court system. However, should it become necessary, the court will get involved and make a decision if a parent is being deprived of their visitation rights. 7. What do I do if my former spouse doesn’t follow the court order? Your former spouse can be ruled back into court and be found in contempt of court by the Judge. The penalties for contempt can range from having to pay a small fine to, in some cases, jail time. 8. What if my former spouse or I move out of state? Obviously this may drastically change any custody/visitation plan that is already in place, but there are provisions for this kind of thing. However, be aware that the Court’s foremost concern is not the convenience of the parents, but what is in the best interest of the child (ren). 9. Should I ask my child with whom he/she would want to live? This would put the child in a horrible situation. The worst thing a child must do is make a statement choosing the parent he or she would want to live with. In a lot of cases this must eventually be done, but if the child has not come forward, then a parent should probably not ask. 10. At what age can the child decide where they want to live? There is no set age in Louisiana. And although a child’s wishes are one of the factors that the Court can look at they are not the deciding factor. We all know 11 year olds that are going on 20 as well as 14 year olds that seem to be stuck at 10. Therefore how much weight is
1. Who Can be a Witness in an Order for Protection (OFP)? Either party to an Order for Protection may call witnesses at the evidentiary hearing where allegations are being contested. If the individual is reluctant to testify they may be compelled to do so by having them served with a subpoena. Unfortunately, most domestic abuse occurs behind closed doors outside the view of the public. That means witnesses are often limited to the parties involved in the case and, in some instances, police officers who responded to the call for help. 2. What Can a Witness Testify About (OFP)? It is important to recognize that the evidentiary hearing in an OFP is meant to be an expedited hearing. That means the court will generally focus on the narrow allegations of the Petition. That can result in frustration for parties who find a Judge limiting the testimony of their witnesses. A Court may limit witness testimony for a number of reasons. First, any witness must testify regarding relevant details and events. That means the witness must testify regarding the events listed in the Petition or affidavit. Collateral details are often irrelevant. For example, character evidence of either the Petitioner or Respondent would not be allowed. Second, any witness must also have direct knowledge of the allegations in the petition. If the witness does not have direct knowledge of the allegations in the petition, the testimony can be excluded. Direct knowledge means the witness observed , heard or , in some way directly experienced the event. They may have observed abuse. They may have heard a sound that is consistent with abuse. They may have observed an injury or the demeanor of the alleged victim or abuser. Except in very limited circumstances, the testimony cannot be based on something the witness was told by another person. That is not direct knowledge and would often fall into a category of inadmissible hearsay. Third, a witness may also be limited by a Judge if the testimony is redundant in nature. In other words, many witnesses testifying to the same thing may be considered duplicative. 3. Can A Witness Be in the Courtroom? Generally, a court will exclude any witnesses from the courtroom until they have testified. This prevents the witnesses from hearing the testimony of others and conforming their statements to the evidence already presented. If the This is called sequestering the witness. If the Judge does not sequester witnesses prior to the commencement of the evidentiary hearing, a request by either may be made to do so. 4. Can Children be Witnesses? This is a tricky question. There is nothing in Minnesota Statutes that prevents a child from being a witness in an Order for Protection Proceeding. Often allegations of familial abuse occur between parents and spouses or between parents and minor children. That may mean that minor children were the only witnesses to the alleged abuse. Nonetheless, Judges are often reluctant to have children testify fearing that they may be re-traumatized by the experience or believing it improper to place the child in the middle between two feuding parents. Where the Court is reluctant to allow testimony of children, there may be other options available. Where domestic abuse is alleged to have occurred against a child, the Court may appoint Guardian Ad Litem (GAL). A Guardian Ad Litem is a person appointed to advocate in court for what they believe to be in the child’s best interests. As part of that role, they may speak with the minor child and/or review relevant records related to matter being resolved by the court. The GAL will then present their findings and recommendations to the court and a later hearing. The Court may also allow into evidence some out of court statements made to other witnesses by minor children. Generally, this would be considered inadmissible hearsay, but there are a number of exceptions to the rule against allowing hearsay and use of out-of-court statements may be a way to avoid requiring children to testify and traumatizing the children through the process. Minnesota Rule of Evidence 807 is a residual or “catch-all” exception to the hearsay rule. It provides that if certain procedures involving notice are followed and the Court finds sufficient guarantees of trustworthiness, out-of-court statements may be admissible as evidence regardless of the availability of the declarant. Similarly, two Minnesota statutes expressly provide for the admission of the out-of-court statements of children under the age of 10 regarding child abuse committed on them or committed on another child but observed by them. Minn.Stat. Sec. 260C.165 covers out-of-court statements regarding either abuse or neglect and applies to any CHIPS, foster care, or domestic child abuse proceeding or proceeding for termination of parental rights and Minn.Stat. Sec. 595.02, Subd. 3 applies to any court proceeding involving child abuse but requires that there be other corroborative evidence of the act if the declarant (child under 10) is unavailable as a witness. A Judge may also elect to conduct an in camera interview with the child witness. That means the Judge will speak to the child, often in chambers or in a closed courtroom where the only person allowed to be present are the attorneys. If any. This is rarely used and Judges are not often equipped with the training necessary to make such inquiries. 5. Can A Person Invoke Their 5th Amendment Right To Remain Silent? A party or even another witness may sometimes seek to claim their constitutional right against self incrimination. The rights against self incrimination may only be raised if the testimony that is requested has the potential to subject the speaker to criminal prosecution. In a case for an Order for Protection, there is some protection offered by the Domestic Abuse Statute. Minn. Stat. Sec. 518B.01, subd. 15 states that “any testimony offered by a respondent in a hearing...is inadmissible in a criminal proceeding.” Nonetheless, there are times when a witness, other than a party, offers testimony that might result in criminal prosecution. When that occurs, the witness may invoke the Fifth Amendment in order to protect themselves from criminal prosecution. That does not mean, however, their silence cannot be used against them in the civil proceeding. Though that may be true in a criminal case, when a party asserts the Fifth Amendment in a civil action, the Court may make an adverse inference when that party refuses to testify.
Think Long-Term When you’re determining how you want to divide your property, you don’t just want to think about the current value. If you do, then you might not consider how much a home could be worth in the future or the losses you might suffer by accepting stock in lieu of other assets. You want to review all your marital assets and determine the best path toward future financial security. How Can You Make the Best Financial Choices During Your Divorce? It’s a smart idea to start by getting the current values of your assets. Things like stocks or retirement accounts might waiver, but you can get a general idea of their worth at the present time. Talk with Your Spouse After that, you should sit down and talk to your spouse. With assets like stocks, you might opt to cash out your portion immediately for the current value, or you could choose to accept them as they are and risk longer investments. Similarly, if you want your family home, you might accept the risk of depreciation in the hope of appreciation over time and decide not to sell it immediately. Know Your Assets to Make a Decision With complex assets, it can sometimes be better to liquidate them and split the profits. However, what you should do will depend on your knowledge about these assets and the potential for growth. Your attorney can talk to you more about complex assets and how you should handle them during your divorce.
“I had a child custody issue. The lawyer gave great advice and helped me think through my situation more rationally from all angles. He was a great help!”
— Family law client, March 2016
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