by Gary on December 11, 2010
On November 23, 2010, the Michigan Court of Appeals issued a decision, White v White (Docket No. 293976, click here to go to the text of the opinion), by which it struck down a provision of a Judgment of Divorce. That provision prohibited the “entertainment of unrelated members of the opposite sex overnight while the children are in their care.” The Court of Appeals ruled that provision to be unenforceable. It had been imposed by the trial court judge, with a comment regarding the morality that parents should teach their children. Notably, neither parent requested the provision.
But, if such a Court-imposed provision is unenforceable, would the same provision be enforceable if it had been agreed to by the parents? What if only one parent had requested it, and the Court included it?
If such a provision is unenforceable, how can a parent who does want to set a certain example for his children, prevent them from being part of precisely what he wants them to avoid, while they are with the other parent, who does decide to cohabit with her significant other?
This case, and its treatment by the Michigan Supreme Court (if it goes there), may have some far-reaching effects on co-parents of minor children in the State of Michigan.
by Gary on November 8, 2010
Unfortunately, divorce is just as much a reality for business owners and self-employed individuals as it is for other members of our society. If you or your spouse (or both of you) are business owners, and you are divorcing, the valuation of the business(es) involved may well be the most critical point of your property settlement. What is the business worth? What will it be worth 5 years from now? Has the non-owner spouse contributed (time? money? effort?) to its growth? Is the business a candidate to be sold soon? Or sold three or four years from now? Who runs the business while you divorce and separate?
In some cases, it may make sense (and save dollars and cents) to use an outside expert, such as a Certified Public Accountant, to provide a value, or range of value, for the business(es) involved. If you are walking in this territory, tread carefully.
by Gary on November 6, 2010
Does the company you used to work for owe you money?
Michigan has a special law to protect commissioned sales representatives who do not get paid. If the company fails to pay you, not only do you have a cause of action for traditional breach of contract, but you may also have a claim under Michigan’s Sales Representative Act (“SRA”), MCL 600.2961 et seq. Under that statute, not only will the company have to pay you what it owes you if you take them to Court and win, but the company may also be ordered to pay some or all of your court costs and attorney fees, plus a penalty of two times the amount of the unpaid commissions, up to a cap of $200,000. Read that again. That is 3 times the amount that is owed you, plus court costs and attorney fees!
How do you collect it? You should probably start by contacting a Michigan attorney.
by Gary on November 5, 2010
After you are divorced, it may seem more wise to try cohabitation (“living with” someone) before making a permanent commitment again. But, if you have minor children, that decision may be more complicated than it appears.
Sometimes, a divorce judgment contains language prohibiting cohabitation, at least while the children are in your care. Other times, the court’s order may not contain an expressed rule against it. But, depending on the facts of your situation, “living with” someone might well give your ex-spouse grounds to have custody and parenting time reviewed and, possibly, changed.
by Gary on November 4, 2010
Did you know that Michigan law contains a provision for a child support arrearage repayment plan? If you owe a substantial amount of past-due support, and you propose, to the Court, a payment plan that is reasonable based upon your income and ability to pay, the Court might enter an order getting rid of the accruing surcharges. The fees and surcharges on past-due support really add up, and make it nearly impossible to “climb out of the hole” if the amount of past-due support is large.
by Gary on November 3, 2010
Charter schools, both public and private, are making a substantial impact on the educational environment. They provide yet another choice for seeking the best educational experience for your child. Or, perhaps you want to move your child to a school closer to your new job. But, what if your co-parent (ex-spouse) does not agree that your child should change schools? Can you enroll your child in a different school?
If the school switch will not change the custodial environment, you may only have to show, by a preponderance of the evidence, that it is in the best interests of the child (considering the factors listed in MCL 722.23). If, though, the change will cause a change in the custodial environment (such as by necessitating a change in parenting time), you will probably be required to establish, by clear and convincing evidence (a much higher standard), that the change is in the best interests of the child.
In light of both the recent fervor surrounding the leasing of minerals in connection with the exploration of the Utica and Collingwood Shale, and the sudden and surprising wholesale cancellation by companies of leases and bonus payments, we have initiated an unincorporated association designed to provide royalty owners information that may be helpful to avoid similar problem in the future. An article in the Grand Traverse Insider of October 31 discusses our efforts and may be of interest.
by Gary on November 2, 2010
Can you force your ex-spouse to sell the marital home, so that you can receive your portion of the equity? Maybe. If your Judgment of Divorce provides a mechanism for sale, or requires it to be sold, and your ex-spouse is simply refusing, a court might order him or her to comply with the Judgment, on pain of contempt. If your Judgment of Divorce provides for it, you might even be able to recover your attorney fees and costs incurred in going to Court to force your ex to comply.
What if your Judgment of Divorce does not provide a mechanism for selling the house (or a vacation property that you owned together, or a vacant lot, for instance)? Once the Judgment of Divorce is entered, you and your ex-spouse no longer hold the property as tenants by the entirety; now you own it together, as tenants in common (assuming that the Judgment of Divorce does not otherwise provide for what will happen to the property). A tenant in common generally has a right to “partition” the property. That is, one tenant in common has a right to ask a Court to divide the property into portions, roughly equal in value to the respective ownership. If that division cannot be effectively made (such as a single-family dwelling), a Court may order that the property be sold and the proceeds divided. That may be, for such property, the only effective way to force a sale. But, in the right set of circumstances, partition can be an effective tool for forcing an ex-spouse to “get on with it.”
by Gary on November 1, 2010
A recent case from the Michigan Supreme Court (Maher v Maher, Court of Appeals No. 287309) has indicated that the appreciation of separate property, such as an investment account, might not be marital property subject to division by the Court, if that appreciation was only “passive” (i.e. the other spouse’s actions had no bearing on or contribution to the appreciation of the asset).
In some cases, determining precisely what is included, and what is not, in the marital estate, can be a very important question. If an asset is included in the marital estate, it is subject to a claim of the spouse in a divorce case. If the asset is not part of the marital estate, it is not part of the marital “pie” that the Court can divide and allocate between the spouses.
by Philip on September 29, 2010
In a recent decision from the Federal Bankruptcy Court of Western Michigan, a decision opposed by members of the oil and gas industry, a Debtor oil and gas producer which filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code and which owed lessors for unpaid royalties, has the duty to make an election under section 365 of the Code to either ratify existing leases and pay the lessors of those ratified leases all of the outstanding unpaid royalties OR reject the leases and have the unpaid royalties included among other unsecured debts. The industry position appeared to be that the debtor did not have no make such an election, that it could treat the unpaid royalties as merely unsecured debts to be paid only a fraction of their face amounts and that the debtor could, in the future, continue to operate under terms of the lease and could sell or assign that lease to another operator. If, on the other hand, consistent with the court’s reasoning, a debtor is forced to reject an existing lease that is the basis for current operations and production of oil or gas, facially, the lessor should thereafter be free to negotiate a new lease with another operator without the same constraints as existed when the initial lease was negotiated.
In view of the complexity of the oil and gas industry and the potential impact on the multiple other parties with whom the Debtor may have had agreements including investors and working interest owners, an appeal would be expected.
