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Divorce Attorneys in Novi Michigan

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Divorce Attorneys in Novi  Michigan Powered By Docstoc
					      michigan
FAMILY LAW
JOURNAL
A PUBLIC ATION OF the STATE B AR OF MICHIGAN
                                                            Karen S. Sendelbach
FA MILY L AW SECTION                                                     Chairperson
Volume 37 Number 8                                           Norman N. Robbins
                                                                      Editor-in-Chief
October 2007


                                                          IN THIS ISSUE
                                      Chairperson’s Message                             3
                                      Editor’s Commentary                               5
                                        Has Professional Advertising
                                        had an Effect on the Practice
                                        of Family Law

                                      Quid Pro Quo                                      7
                                      Ask Professor Lex                                 8
                                      Recent Cases                                    12
                                         Berry v Berry
                                         Jones v Giannotti
                                         Havas v Havas
                                         Karchin v Karchin
                                         Aukeman v Aukeman
                                         Leder v Leder
                                         Nolen v Nolen
                                      Tax Trends                                      17
                                      Legislative Update                              20
                                      The Case Of The Issue                           24
                                      The Enforcer                                    25
                                      Letters to the Editor                           27
                                      The Wengel Malpractice Trap                     29
                                      Ethical Considerations for the                  30
                                      Michigan Collaborative Lawyer
                                      Bad Things That Can Happen When 32
                                      Clients Don’t Update Beneficiary
                                      Designations After Divorce
                                      For Sale: Special Issues of The                 42
                                      Michigan Family Law Journal

                                     The Michigan Family Law Journal endeavors to establish
                                     and maintain excellence in our service to the Family
                                     Law Bench and Bar and those persons they serve.
                          Advertise in the
          Michigan Family Law Journal                                                             FAMILY LAW SECTION
                    ten times per year,                                                                            “Listserv”
          the Michigan Family Law Journal reaches:
                                                                                                            (email Discussion Group)
	   •	Over	3,000	State	Bar	of	Michigan	members	directly
	   •	Various	courts	and	law	libraries                                                         the Family Law section sponsors a
	   •	Specialized	financial	professionals                                                      “listserv”, which is “geek-speak” for an
	   •	State	and	local	public	officials                                                         email discussion group. to be eligible
                                                                                               to join, you must be a member of the
                  Your ad for services or products –
                 or your political ad – targets people                                         Family Law section or be a Michigan
                 you want most and need to reach.                                              judge. if you are eligible and wish to
                                                                                               participate (it is a wonderful opportunity
         Cost of ad per issue:            $350    –   full page                                to share ideas and solve problems, not
                                          $200    –   half page                                to mention communicating with many
                                          $175    –   quarter page                             fine colleagues), you may initiate your
                                          $100    –   eighth page                              subscription to the Familylaw listserv
                       For details contact:                                                    by going to http://groups.michbar.org/
                          todd s. selin                                                        and click on FamilyLaw. Once there,
         c/o Mallory, Cunningham, Lapka & scott, PLLC                                          fill out the form under “subscribing to
                   605 south Capitol Avenue                                                    FamilyLaw” and follow the instructions. if
                       Lansing, Mi 48933                                                       you have questions, contact elizabeth A.
                  telephone: (517) 482-0222                                                    sadowski at sadowski@mindspring.com,
                                                                                               or call her at (248) 652-4000.


                                            Michigan Family Law Section
                                                   2007-2008 MeetiNG sCHeDULe
                                                               ALL MeetiNGs stArt At 9:30 am
                  Novi Host: Carlo Martina (734) 254-1140                                     Lansing Host: Meri Anne stowe (517) 347-1440
                  Wyndham Garden Hotel (248) 344-8512                                            University Club of MSU (517) 353-5111
     	            42100	Crescent	Blvd.	•	Novi,	MI	 48875	                                       3435	Forest	Road	•	East	Lansing,	MI	 48910
                                                   Ann Arbor Host: Karen sendelbach (734) 994-3000
                                                             Weber’s Inn (734) 769-2500
                                                      3050	Jackson	Road	•	Ann	Arbor,	MI	48103
          October 6, 2007 ................................................. Novi      November 3, 2007 ................................... Ann Arbor
          December 1, 2007...................................east Lansing             January, 2008 .......................................[no meeting]
          February 2, 2008 ........................................ Ann Arbor         March 1, 2008 ...................................... east Lansing
          April 4, 2008 ...................................................... Novi   May 7, 2007 ............................................ Ann Arbor
          June 7, 2007 .............................................. Ann Arbor



                   2006-2007 Family Law Section Officers and Council Members
         Chairperson:                                 Expires 2007                 Expires 2008                               Expires 2009
             Karen sendelbach                              Charlotte Allen              Neil Colman                                Anne Argiroff
         Chairperson-Elect:                                John Forczak                 Hon. John Hammond                          Judith O’Donnell
                                                           Lorne Gold                   Phil Navarre                               traci rink
         Treasurer:                                        Jules Hanslovsky             rebecca shiemke                            todd selin
             Carlo Martina                                 James J. Harrington iii      Mark snover                                Karen sendelbach
         Corresponding Secretary:                          Barbara Kelly                ross stancati                              Kent Weichmann
             Barbara Kelly                                 Carlo Martina                Connie thacker                             Amy Yu
         Recording Secretary:
             Amy Yu




                                                                                                              Immediate Past Chairperson: Lisa Sullivan
                                        ChairpersOn’s Message
                                        by Karen s. sendelbach
                                            Chairperson, 2007 – 2008




The practice of family law is one of the most important,          working toward improving the laws and systems of justice
challenging and rewarding practices in the law. Unlike other      which impact them.
areas of the law which focus on less personal issues, our core
focus and interactions are always with people – complex,          The elected Council Members of our Section are a group
emotional, vulnerable and unpredictable husbands, wives,          of dedicated and talented leaders who volunteer their time
children, judges, attorneys, referees, evaluators, experts,       to serve on these committees, to meet with legislators, to
witnesses – all of whom look to us to provide them with           undertake study of new bills and proposed legislation, to
judgment and guidance about their most personal and               coordinate continuing legal education training, and to do
precious issues. A good family law attorney can steer a           countless other tasks which improve the judicial system of
family toward a fair resolution; an excellent attorney can        our state. These Council Members advocate not only for their
help them resolve their matters and move forward on a new,        own clients in their own practices, but for the improvement
but more healthy path, and a poor family law attorney can         of our laws and justice system. They therefore effectively
exacerbate already existing hostilities and financial issues      touch every family and family law practitioner in the state,
and do very real and significant harm to that family.             and I am humbled to be selected to lead such an impressive
                                                                  group of attorneys.
This is a tremendous responsibility which should not be
lightly undertaken, and it is also an enormous privilege. It is   I encourage every Section member to become involved
our duty to ensure that we practice at the highest levels of      in the Council. As attorneys, we are privileged to have
which we are capable, never allowing ourselves to become          had access to the educations we were provided; we are
complacent in our knowledge of the law, new methods of            privileged to be entitled to stand and speak on behalf of a
dispute resolution, new tax and other financial issues, and       client and to be heard by the Court, and we are privileged
the ever-growing body of psychological research which             to be “invited to the table” to participate in decisions of
impacts the family law professional. As the chairperson of        enormous impact in our state. With that privilege comes
the Family Law Section, it is my responsibility to lead the       responsibility, and I encourage everyone to re-dedicate
Section to assist all of our members to continue to pursue the    themselves to giving something back to the profession.
highest level of practice possible, so that together we can
best serve Michigan’s families.                                   Recently, while out working for the Council, I encouraged a
                                                                  young lawyer to become more active in our practice, only
As a Section, we have much to be proud of. Together, we           to be met with the typical refrain that they are “too busy”
have influenced the drafting and passage of many laws             with family and work to give back to society and to the
which impact Michigan’s families, and as a result or our          practice. Of course, they are very busy; we are all very
dedicated and thoughtful work, we are now routinely               busy, but the sacrifice of taking on important work brings
invited to the table to join legislators as they draft new        with it the satisfaction of knowing that we accept our roles
legislation regarding family law issues. We are currently         as leaders. We have been given great opportunities and
very active in drafting of modifications to the Child Support     privilege.
Formula. The opinion of the Section on important family law
matters is sought by the Michigan Supreme Court as well as        We are leaders. Our clients look to us to lead them through
the Michigan Court of Appeals on issues of importance to          the difficult process of divorce, and to show them the way
Michigan’s families. We serve the families of Michigan by         to the best solution. Our state agencies look to our section


                                                                                                                3
October 2007
to help lead them to the best answers in family law issues.     We should not underestimate the importance of our good
Our families look to us to help lead them through everyday      leadership to all those whom we lead, and the difference
issues, and our staff and employees ask us to lead our          that it can make. Please join us. Breakfast is available for
offices. As lawyers, we are often called upon to lead social    at every meeting at 9:00 a.m. and the meetings begin at
and public agencies and community organizations. We             9:30 a.m.
must accept the call to lead and involve ourselves in a way
to use our education, skills and talent to give back to the                     Schedule of meetings:
profession and people we are privileged to serve.
                                                                Saturday October 6, 2007       Wyndam Gardens, Novi
I urge each of you to accept this challenge, and to become      Saturday November 3, 2007      Webers, Ann Arbor
involved in the Section. If you are not a member, join us: we   Saturday, December 1, 2007     University Club, East Lansing
will endeavor to provide you with the tools and resources to    Saturday February 2, 2008      Webers, Ann Arbor
allow you to improve the quality of your practice. If you are   Saturday, March 1, 2008        University Club, East Lansing
a Section member, become involved in Section leadership.        Saturday, April 4, 2008        Wyndam Gardens, Novi
Our meetings are open to all section members and are            Saturday, May 3, 2008          University Club, East Lansing
conveniently located throughout the state. I think you will     Saturday, June 7, 2008         Webers, Ann Arbor
find our meetings provide a great deal of information,
thoughtful debate, and interaction with interesting and         I look forward to working with each of you during the next
influential people in our field.                                year.




            4
                                                                                                          October 2007
                                        COMMentary
                                        by norman n. robbins
                                            editor




   Has Professional Advertising had an                            the economic scale that were helped by the legal aid, that
   Effect on the Practice of Family Law                           is, people who could only afford to pay modest fees. They
                                                                  decided to accomplish this end by only accepting such
“I’m all for progress; it’s change I can’t stand.”                matters as uncontested adoptions, uncontested divorces,
                                                                  change of name and other “simple” matters such as simple
                                                – Mark Twain      personal bankruptcies. To be able to do this work profitably
                                                                  they needed volume. They tried their plan of practice but
Although lawyers had always found unique ways to attract          decided it would not work unless they advertised their low
business, they were stopped from advertising by ethical           fees along with the matters they handled.
rules written for the various state and local bar associations.
These rules banned any form of advertising whether                On February 22, 1976 the two lawyers, with full knowledge
by commercial speech or in print. However in 1976, in             that they were violating Disciplinary Rule 2-101 (B) of their
the case of Virginia State Board of Pharmacy v Virginia           State Bar, put an advertisement in the Arizona Republic
Citizens Consumer Council the Supreme Court ruled that            Daily News stating “legal services at very reasonable fees,”
a law that banned the advertising of prescription drug            and listed the fees of certain services. The bar grievance
prices was unconstitutional. This opinion pointed out that        committee recommended six months suspension and an
such ads gave important information to the purchaser of           appeal, the committee lowered that suspension to one week.
drugs, and that the consumer depended on a free flow of           The attorneys appealed to the Arizona Supreme court stating
commercial information. However, the court did point out          the ban on advertising was unconstitutional and the court
that such advertisement had to be regulated so as to limit        ruled against them. The U.S. Supreme Court then heard the
false, misleading and fraudulent information.                     case. They stated “The heart of the dispute before us today
                                                                  is whether lawyers... may constitutionally advertise the prices
One year prior to the Virginia State Board of Pharmacy            at which certain routine services will be performed.”
case the Supreme Court subjected lawyers to antitrust
laws by outlawing the minimum fee schedules. I vividly            The court considered the following before rendering its
recall those schedules and I am certain that the family law       decision.
attorneys were happy to see them go even though our state
                                                                      1. The adverse effect on Professionalism
bar thought it was a necessary evil.
                                                                      2. The Inherent Misleading Nature of attorney
It was in 1977 that the U.S. Supreme Court decided in
                                                                         advertising.
Bates v State Bar of Arizona, 433 US 350, that advertising
by lawyers was commercial speech protected by the First               3. The adverse effect on the administration of justice.
Amendment. The court however stated that advertisement
by lawyers could be regulated on a case by case basis.                4. The undesirable economic effects of advertising
There have been many cases since, that helped interpert
these regulations and I assume the Supreme Court will                 5. The adverse effect of advertising on the quality of
continue to review many more.                                            service

It all started when two attorneys John R. Bates and VanO’Steen        6. The difficulties of enforcement
left their jobs at the Maricopa County Legal Office in 1974
to start their own practice in Phoenix, Arizona. Their            After easily disposing of the above matters in a way to reflect
purpose was to render legal services to people just above         favorably on lawyer advertising they then decided that the

                                                                                                                   5
October 2007
two attorneys were exercising their right to “commercial           as well as the Statue of Liberty, “unadorned law books, the
speech” that is protected by the First Amendment. They             inside and outside of a courthouse, columns and diplomas.
ruled that the individual states cannot ban lawyer’s from all      Of course such images as your bar logo, a gavel, a robed
advertising but would have the right to regulate it on a case      judge and Lady Justice have been permitted.
by case basis. This, of course, left the door open to many
test cases that followed.                                          There are also different rulings as to radio, television,
                                                                   magazine, news paper and phone book advertisements.
The states may prohibit advertising that is false, misleading      One state requires attorneys to get permission for each ad
or fraudulent. They may ban personal solicitation but              that is placed. The controls are in place and advertising,
sending personal solicitation letters to prospective clients       though disagreeable to many, is working.
was approved. You may give legal advice in your ads but
if you advertise contingent fee services you must state that       There is however a lingering fear. If a case like Bates can
the client is expected to pay the costs of an unsuccessful         change hundred of years of solid tradition, a practise that
lawsuit. As time goes on there will be more entries on to the      was considered to be set in stone, what other established
list of what you can and cannot do.                                legal precedent, protocol or shibboleth will be shattered?
                                                                   Lawyers, along with several other professions have valued
Now, how has advertising effected the Family Law branch            the right to exercise the rule of “privileged communication.”
of the law? It appears to have had very little effect. It hasn’t   Will that continue? Social workers, news reporters, mental
lowered fees. It hasn’t changed the fine quality of services       health specialists, even attorneys and doctors have seen
we render. Our efficiency, our volume of work, our work            invasions of this right.
product nor our end product has not, in any way that is
noticeable, effected our practice.                                 Will real estate agents, paralegals, bankers and CPA’s
                                                                   be given limited rights to practice law? Will a law license
There is perhaps one part of advertising that effects all          eventually only be required for trial work? Will advertising
lawyers including family law lawyers. As the Florida               eventually reduce our profession to just another trade?
Supreme Court pointed out quite succinctly “sharks, wolves,        Will all our child custody matters be turned over to the
crocodiles and piranhas” are inappropriate ad images for           mental health discipline and our divorce work to probate
lawyers. This rule came last year and muzzled a pair of            specialists? Is all this fantasy? Did anyone 50 years ago
attorneys who used a pit bull in a television commercial. The      think that you would see advertised in your phone book
bad ads that reflect upon lawyers images or a professional         “Unhappy Marriage? (Get) Divorced – you should know
entity harms us all and must be regulated.                         your rights.”

New rules do list permissible images such as the American          What do you think?
eagle, the United State flags and the individual state flags




            6
                                                                                                              October 2007
                                      Quid prO QuO
                                      by norman n. robbins
                                          editor




Did you know that a father was denied credit against           Did you know that a decedents alleged unhappiness
current and past support that he owed for social security      with his marriage, if proven, may affect the surviving wife’s
dependency benefits his children received on account of        recovery for loss of consortium. (Corder v Corder, Cal., No.
his disability, even though the benefits exceeded his child    S138666, 7/5/07).
support obligations. (In re Crabtree, N.H., No. 2006-329
6/15/07).                                                      Did you know that a mother who had illegally removed
                                                               four of the parties children from their home in Mexico was
Did you know that a trial court erred in dismissing            ordered to return just two of them as the older children,
a complaint and counter-complaint for divorce filed by         ages 10 and 12 were of sufficient age and maturity to
husband and wife after discovering that both committed         object going back to their father. (Simcox Simcox, N.D.
adultery. The appellate court stated that no useful purpose    Ohio, No. 1:7CV96, 6/29/07).
can be served by legally decreeing continuance of the
marriage. (Boyatt v Boyatt, Tenn. Ct. App; No. E 2006-         Did you know that a property settlement agreement
01462, 6/19/07).                                               whereby divorcing parties agreed to “release (each)
                                                               absolutely and forever” all rights and claims to child support
Did you know that a man who paid court-ordered                 against the other “in consideration of the cash obligations
child support after his paternity of a child was declared      and transfer of property herein” is unenforceable, (Dahl v
under a default judgment is not entitled to reimbursement      Dahl, S.D., No. 24301, 6/27/07).
of those payments following genetic testing disproving his
parentage. (Los Angeles County v James, Cal. Ct. App.,         Did you know that a court may grant a remarried father’s
No. B187770, 6/19/07).                                         wife the right to visit or exercise her husband’s parenting
                                                               time with his children while he was deployed in Iraq. (In re
Did you know that a spouse that receives nondivisable          DePaluco, Colo. Ct. App., No. 06CA1478, 7/26/07).
social security retirement benefits can expect the fact that
it may be considered to be a factor in making an unequal       Did you know that an adoption of a 22-year-old mother
property division as part of a divorce matter. (Johnson v      does not prevent her own biological mother’s rights to seek
Johnson, S.D., No 24023, 6/20/07.                              visitation with her grandchild. (In re J.E.M. (Handshoe v
                                                               Ridgeway), Ind. Ct. App., No 76A03-0612-CV-603,
Did you know that at common law waivers of both                7/23/07).
maintenance and attorney fees were unenforceable if
unconscionable at the time of enforcement. (In re 1 Keler,     Did you know that the amount of time that a child
Colo., No. 065C664, 6/25/07).                                  spends in a state after a custody petition was filed may
                                                               not be counted as part of the time necessary for homestate
Did you know that a husband and wife who had                   jurisdiction, (Sareen v. Sareen, Cal. Ct. App., No.
obtained an order of permanent parental responsibility,        C053784, 7/17/07).
after agreeing to raise someone else’s child, are obligated
to support that child even though the couple gets divorced.
(In re Rodrick, Colo., No. 06CA0306, 6/28/07).




                                                                                                               7
October 2007
                                        prOFessOr Lex
                                        by harvey i. hauer




Dear Professor Lex:                                                   outweighs the possible benefit of transferring custody
                                                                      to defendant, who does not have these problems. The
I have been retained in what appears to be a                          trial court’s determination is therefore not contrary to
high conflict custody case. Both parents are good                     the great weight of evidence.
parents. My client’s primary basis for seeking sole
physical custody of their child is that mother is a               In Pitre v Pitre, 2003 Mich App LEXIS 2224, plaintiff was
chain smoker. He is extremely concerned about                     awarded primary parenting time of the parties’ minor
the detrimental affect that habit may have on                     children by the trial court. Among the facts presented to the
their child. Do you think that mother’s smoking                   trial court were that defendant tried to control his smoking,
habit will have a significant impact on the court’s               although he admitted that he smoked in the presence of one
determination of physical custody?                                child who had allergies that were adversely affected by
                                                                  smoke. The trial court gave a slight advantage to plaintiff.
                                                Practitioner
                                                                  In Higgins v Loveland, 2004 Mich App LEXIS 2085, one of
Dear Practitioner:                                                the issues before the appellate court, in a change of custody
                                                                  case, was that the minor child was under doctors’ order
As with nearly all family law cases, knowledge of the facts       to avoid cigarette smoke and that plaintiff continued to
is crucial to providing an informed opinion. It would be          smoke. The trial court felt that said exposure was relatively
helpful to know the relevant facts of your case, including        minor and would not meet the high standard of constituting
whether the child has any current health problems, and            “proper cause” to modify the existing custodial environment
what methods, if any, are taken by the smoking parent to          of the child. The appellate court, in regards to the smoking
limit or prevent the child’s exposure to the smoke.               allegations, held:

In Jordan v Coon, 1998 Mich App Lexis 2032, the court,                the evidence was undisputed that the child was
in determining a child custody case, found that factor (d),           under doctor’s orders to avoid cigarette smoke and
which states “the length of time the child has lived in a             that plaintiff continues to smoke. However, the trial
stable, satisfactory environment and the desirability of              court apparently did not consider the smoking issue
maintaining continuity,” slightly favored the plaintiff. The          particularly relevant because both parties were aware
defendant strongly disagreed with that determination, citing          of the condition before the initial stipulated order. The
evidence that plaintiff’s current husband has an apparent             trial court heard evidence that plaintiff took precautions
alcohol problem and that plaintiff is a self-admitted cigarette       to minimize her child’s exposure to the smoke, and it
addict. The trial court was very concerned about the impact           further found that the issue as presented did not rise to
of these problems upon the “satisfactory environment”                 the level of a changed circumstance. The evidence does
requirement enunciated in factor (d), but nevertheless ruled          not preponderate in favor of a contrary conclusion.
for plaintiff. The court of appeals held that:
                                                                  In Eldred v Long, 2004 Mich App LEXIS 173, the trial court
    Although we are keenly aware of the deleterious affects       weighed the factors in MCL 722.23(b) which addresses the
    of “secondhand smoke” and a drinking problem on [*5]          capacity and disposition of the parties to give love, affection,
    the household, we are not prepared to state that as a         and guidance and to continue the education and raising of
    matter of law custody may not be awarded to a parent          the child in his or her religion or creed. Despite finding that
    like plaintiff who finds herself in those circumstances.      both parents were capable of showing love and affection to
    Notwithstanding these negative facts, the evidence            the child, the trial court found in favor of defendant because
    considered as a whole indicates that the children have        it had concerns about plaintiff’s ability to provide proper
    lived with plaintiff in a stable, satisfactory environment    guidance to the child since he frequently left the child in the
    and that the desirability of maintaining continuity           care of others, participated in activities that he preferred


            8
                                                                                                               October 2007
rather than those that would be more enjoyable to the child,    The above response is not meant to serve as a solution to
and continued to smoke in the child’s presence although she     a case. That would require complete disclosure of all facts
has allergies. The appellate court found that the findings      in the case, including client consultation. Rather, the intent
were not against the great weight of the evidence.              is to provide informal guidance based upon the facts that
                                                                have been presented. The inquiring lawyer bears full legal
I believe that it would be helpful to your case if an expert    responsibility for determining the validity and use of the
witness testify as to the deleterious affects passive smoke     advice provided herein.
can have on a child. In my opinion, such testimony could
make a substantial impact the findings of the trial court.      Questions for Professor Lex should be forwarded to the
The court reviews all of the factors of the Child Custody Act   Michigan Family Law Journal, State Bar of Michigan,
prior to rendering an opinion. Without knowledge of all of      Michael Franck Building, 306 Townsend Street, Lansing, MI
the relevant facts in your case, I do not know whether or       48933-2083. One letter will be selected to be published in
not mother’s smoking habit will be sufficient for your client   each issue of the Family Law Journal. Letter writer’s names
to prevail.                                                     shall remain anonymous.

Answer respectfully submitted by Harvey I.
Hauer, Hauer & Snover.




                                                                                                                9
October 2007
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    10
                                                                                      October 2007
               AUTOMATED FAMILY LAW FORMS
                                               BY
                        TIMESAVER LEGAL FORMS L.L.C

 HOT DOCS* TECHNOLOGY--CUT DRAFTING TIME UP TO 75%
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               WITH OVER 40 YEARS EXPERIENCE IN FAMILY LAW

                     FAMILY LAW FORMS               IN WORD* FORMAT
 Abstract of Judgment-Name Change                   Motion for Mediation
 Abstract of Judgment- Personal Property            Motion to Modify Child Support
 Abstract of Judgment - Real Property               Motion for Order to Show Cause
 Agreement for Legal Services                       Motion to Remove Domicile from Michigan
 Affidavit Pursuant to P.A. 2001, No. 19            Motion to Restrict/Terminate Parenting Time
 Affidavit of Service                               Motion for Status Quo Order
 Answer to Complaint/Counter Complaint              Motion for Temporary Orders (Custody et al)
 Appearance                                         Motion to Withdraw as Counsel
 Arbitration Agreement                              Notice of Hearing
 Attorney Charging Lien                             Notice of Presentment (Order or Judgment)
 Client Intake Questionnaire                        Order Exempting from F.O.C. Services
 Complaint-Divorce/Separate Maintenance             Order for ExParte/Temporary/Interim Relief
 Complaint-Paternity                                Order for Mediation
 Consent to Release Information                     Order Modifying Prior Order or Judgment
 Default Application, Entry & Affidavit             Order for Psychological/Psychiatric Exam
 Interrogatories-Comprehensive Set                  Order to Show Cause
 Judgment (With Children)                           Order Allowing Withdrawal of Counsel
 Judgment (No Children)                             Pre-Nuptial Agreement
 Judgment of Filiation                              Qualified Medical Child Support Order
 Motion to Change Custody                           Settlement Agreement
 Motion to Compel Discovery                         Status Quo Order
 Motion to Enforce Judgment                         Stipulation & Order-Generic Form
 Motion for Referral to F.O.C. for Support          Stipulation & Order for Arbitration
 Motion for Psychological Exam                      Verified Statement
         S.C.A.O. FAMILY LAW FORMS                  AND OTHER FORMS - PDF FORMAT
 Advice of Rights-F.O.C. Services- FOC 101          Order Modifying ExParte Order - FOC 62
 Change in Personal Information - FOC 10            Subpoena - MC 11
 Default Request, Affidavit & Entry - MC 07         Substitution of Attorney - MC 306
 U.C.S.O. - F.O.C. Services- FOC 10-52              Summons - MC 01
 U.C.S.O. - No F.O.C. Services - FOC 10a-52a        U.S.S.O. - F.O.C. Services - FOC 10b
 Judgment Information Form - FOC 100                U.S.S.O. - No F.O.C. Services - FOC 10c
 Motion Rescind License Suspension - FOC 85         Motion for Alternate Service - MC 303
 Objection-ExParte Order-Motion - FOC 61            Order for Alternate Service - FOC 304
 Order Exempt Case FOC Services - FOC102            Record of Divorce or Annulment

                    FAMILY LAW FORMS                FOR SPECIFIC COUNTIES
 Allegan County                                     Oakland County
 Lapeer County                                      St. Clair County
 Livingston County                                  Tuscola County
 Macomb County                                      Washtenaw County
 Monroe County                                      Wayne County
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                                                                                          11
October 2007
                                        reCent Cases
                                        Capsulized by scott Bassett, esq.




                     Berry v Berry,                                person. On remand, the trial court was instructed to consider
 Court of Appeals Docket No. 273427, decided                       all factors when revisiting the wife’s alimony request.
  July 24, 2007, Murphy, P.J., and Talbot and
           Servitto, JJ., Unpublished:                             Attorney Fees: Based on evidence of the wife’s minimal
                                                                   income, her child support obligation, and the minimal
The wife appealed several aspects of the trial court’s             award of marital assets, the appellate panel held that the
divorce judgment. The Court of Appeals affirmed the trial          trial court abused its discretion in denying the wife’s request
court’s custody order. The trial court’s property division was     for attorney fees. The fact that the wife’s infidelity caused
vacated and the matter remanded for a factual finding on the       the marital breakdown does not constitute unreasonable
value of the marital home. The trial court’s decision to deny      conduct during the litigation that would weigh against such
alimony was also vacated and remanded for further factual          an award. This decison to award attorney fees is purely a
findings. The trial court was also directed to reconsider its      need/ability to pay inquiry.
refusal to grant the wife’s request for attorney fees.
                                                                   http://courtofappeals.mijud.net/documents/
Child Custody: While the trial court did not determine             opinions/final/coa/20070724_c273427_64_
whether an established custodial environment existed,              273427.opn.pdf
there was sufficient information in the record to allow the
Court of Appeals to find there was no established custodial                         Jones v Giannotti,
environment. There were repeated changes in the children’s          Court of Appeals Docket No. 261236, decided
physical custody in the three months before the trial. The           January 4, 2007, Zahra, P.J., and Cavanagh
parties rotated living in the marital home with the children on            and Schuette, JJ., Unpublished:
a weekly basis. This arrangement continued throughout the
trial, which occurred over five months. The Court of Appeals       Child Custody: The mother appealed the trial court’s
found these “regular and repeated changes in the physical          order changing custody of the two minor children to the
custody of the parties’ two sons, along with the uncertainty       father. The Court of Appeals reversed the award as to the
created by the custody trial,” meant no established custodial      older child, who was born prior to the marriage and was
environment existed. Although there was a stable physical          not a child of the parties, but affirmed the custody award
environment, “there was no psychological environment               concerning the younger child who was born during the
of significant duration, marked by security, stability and         marriage and was a child of both parties.
permanence.” A preponderance of the evidence supported
the trial court’s decision to award custody of the parties’        While the Livingston County Circuit Court did not lack
two sons to the father.                                            subject-matter jurisdiction to decide custody of the older
                                                                   child, it erroneously exercised jurisdiction over him. The
Property Division: Although the value of the marital               older child was born prior to the marriage. An order of
home, which was the largest martial asset, was in dispute,         filiation from Wayne County established another man as
the trial court did not assign it a value before dividing the      that child’s father. The Wayne County order also gave the
marital estate. This was clear error, making it impossible for     mother custody of the older child. The parties married shortly
the Court of Appeals to determine whether the trial court’s        after entry of the Wayne County order. The Wayne County
division of the marital estate was equitable.                      custody order remained in effect at the time the Livingston
                                                                   County court attempted to modify custody.
Alimony: The trial court abused its discretion when it
failed to consider all of the case law factors in denying the      The Court of Appeals agreed with the mother’s argument
wife’s request for spousal support. The trial court based its      that MCR 3.205(C)(2) precluded the Livingston County
decision only on the wife’s infidelity, her failure to admit the   court from entering an order contrary to the earlier Wayne
infidelity, and her attempt to portray the husband as a bad        County order. However, this conclusion did not require the

            12
                                                                                                               October 2007
court to disturb the trial court’s decision concerning custody    The father also argued that no violence against the
of the younger child.                                             mother took place in the child’s presence. In so doing, he
                                                                  overlooked the plain language of the statute which directs
Judge Wilder concurred in part and dissented in part. He          the trial court to consider domestic violence regardless of
accepted the mother’s argument that the Livingston County         whether the child witnessed it. Also, in light of the fact the
court lacked subject-matter jurisdiction over the older child     PPO against the father prohibited communication between
because it was undisputed that the older child was not a          the parties, it was highly unlikely they would be able to
child of the parties nor was he born during the parties’          agree on the basic issues of child rearing or cooperate in
marriage. Under MCL 552.16, a court hearing a divorce             joint decision-making.
case, including post-judgment modification proceedings,
has subject-matter jurisdiction only over a child “of the         Next, the father argued that the trial court’s custody order
parties.” It does not matter that the original complaint for      constituted a termination of his parental rights. The panel
divorce alleged that the child was born during the marriage       disagreed with the father’s assessment. The trial court
when the same complaint also correctly listed the child’s date    advised the father that once the PPO expired and was not
of birth as 13 months before the date of marriage. Judge          extended, he could file a motion to modify custody and
Wilder wrote that because the trial court’s order changing        parenting time based on changed circumstances.
custody of the older child must be reversed, custody of the
younger child should be remanded to the trial court for           The father also complained that he was denied due process
reconsideration.                                                  of law because he was denied the opportunity to present
                                                                  evidence at trial. Because these arguments were raised
Majorit y : http ://courtofappeals.mijud.net/                     for the first time on appeal, they are not preserved for
d ocuments/o pinions/final/co a/20 070717_                        appellate review. Furthermore, at no time did he request an
c266568_84_266568.opn.pdf                                         opportunity to present additional evidence or witnesses.

Partial   Concurrence/Dissent:        http://                     Finally, the father claimed that his right to trial transcripts for
courtofappeals.mijud.net/documents/opinions/                      his appeal was denied because he was poor and indigent.
final/coa/20070717_c266568_85_266568p.                            The Court of Appeals previously denied his motion to waive
opn.pdf                                                           transcript fees, and despite that denial, the father was able
                                                                  to order and file the transcripts in question.
[Note: The author of the above summary was
appellate co-counsel for the mother in this                       http://courtofappeals.mijud.net/documents/
appeal.)                                                          opinions/final/coa/20070703_c272302_114_
                                                                  272302.opn.pdf
                   Havas v Havas,
 Court of Appeals Docket No. 272302, decided                                        Karchin v Karchin,
   July 3, 2007, decided January 23, 2007,                         Court of Appeals Docket No. 268750, Decided
  Whitbeck, C.J., and Wilder and Borrello, JJ.,                    June 19, 2007, Servitto, P.J., and Jansen and
                  Unpublished:                                               Schuette, JJ., Unpublished:

Child Custody: The father appealed the child custody pro-         The wife appealed the property division, alimony, and
visions of the divorce judgment. The Court of Appeals affirmed.   attorney fee provisions of the divorce judgment. The Court
                                                                  of Appeals affirmed on all three issues.
The father argued first that the trial court abused its
discretion in awarding the mother sole custody of the             Property Division: The Court of Appeals did not
parties’ child. Concluding the trial court’s findings             conclude that the trial court’s equal division of the parties’
regarding the best interest factors and the parties’ ability      retirement account was inequitable. The wife claimed that
to communicate were not against the great weight of               she should have been awarded 55 percent of the retirement
the evidence, the Court of Appeals held the trial court           account, asserting that the husband was at fault for the
did not abuse its discretion in awarding the mother               breakup of the marriage due to a romantic involvement with
sole custody of the parties’ child. The mother had sole           another woman. The panel noted that while fault is a proper
physical custody pursuant to an ex parte order. Since             consideration in dividing the marital estate, the trial court
an established custodial environment existed with her,            found the marriage broke down before husband’s affair.
the father had to show a change was in the child’s best           The parties were equally at fault for not working together to
interests. The trial court also noted a PPO had been issued       address their problems. The parties were the same age, both
against the father. While the father repeatedly protested         well-educated, in good health, and had the same standard
about the PPO against him, he failed to timely appeal the         of living, assets, and needs. Those factors supported an
PPO, thereby not preserving that issue.                           equal division of the retirement account.

                                                                                                                     13
October 2007
The trial court did not err in allowing the husband to keep       The husband first argued that the trial court erroneously
his inheritance as separate property while not awarding the       included his premarital assets in the marital estate. The
wife her inheritance as separate property. The wife received      parties married on November 1, 1996. The husband filed
money from her living grandmother in 1995, which was              for divorce in January 2004. He received a $75,000 bonus
used for a down payment on the parties’ marital home.             in March of 1997 for work completed in 1996. In January
Both parties’ names were on the mortgage and deed, they           of 1998 he retired from his employment after 20 years of
and their children lived in the home for several years, and       service to start his own business. After his retirement he
the husband paid to maintain it. The wife’s inheritance was       received an Earned Equity Award Plan (EEAP) award,
not intended to be nor kept as her separate property. The         longevity bonus, severance package, and outplacement
husband’s inheritance, however, was received after the            services cash-out from his former employer, which he
death of his mother in 2004, around the time the parties          placed in the parties’ joint checking account. The trial court
separated, and was placed into his separate account.              included the entirety of his 1996 bonus, EEAP award,
After he moved out of the marital home, he used some of           longevity bonus, severance package, and outplacement
this money to buy another home. The wife never had an             services cash-out in the marital estate.
interest in the husband’s new home and did not contribute
to its purchase or maintenance. In light of the different         The Court of Appeals affirmed, holding that the husband’s
circumstances, the trial court did not abuse its discretion in    actions in depositing those assets in a joint account
treating the two sums of money differently.                       indicated his intent that they be treated as marital assets.
                                                                  Furthermore, the parties withdrew funds from the joint
Alimony: The wife argued that the 7 year alimony award            account for living expenses, renovation of the marital
ordered by the trial court was inequitable because the            home, and to finance the business the husband started
husband expressed a willingness to pay alimony for 10             during the marriage. The trial court’s conclusion that the
years. However, the husband’s 10 year offer was based on          disputed assets were intended by the husband to replace
a lesser amount than what was ordered by the trial court.         the income he would have contributed to the marriage if
There was no agreement for a 10 year alimony award at             he had retained his employment was supported by the
the amount ordered by the trial court.                            record.

The wife also appealed the trial court’s refusal to require       Next, the husband argued that the trial court erred when
the husband to secure alimony with life insurance. Although       calculating the value of the parties’ business. The appellate
the trial court had the authority to require life insurance as    panel noted that the trial court’s value fell within the range
security, it was not obligated to do so. The wife did not         established by the parties’ respective valuation experts. The
make a request for life insurance as security during the trial.   trial court found that both expert valuations were based on
Because it would have been an additional expense to the           speculative sales projections and assigned a value between
husband not weighed by the trial court in its alimony or          the two assessments. When a trial court arrives at a value
property awards, the trial court did not abuse its discretion     within the range established by the evidence, there is no
when it denied the wife’s motion to amend the judgment to         showing of clear error.
include a security provision.
                                                                  http://courtofappeals.mijud.net/documents/
Attorney Fees: The trial court denied the wife’s request          opinions/final/coa/20070612_c267326_49_
for $15,000 in attorney fees. Instead, it ordered that each       267326.opn.pdf.
party be responsible for their own fees. The marital estate
was divided equally, and the wife was unable to show that         Note: The husband filed an application for leave
she could not pay her own fees. Nor was there a showing           to appeal to the Michigan Supreme Court on July
that the husband engaged in unreasonable conduct. The             20, 2007. It has been assigned Supreme Court
trial court did not err on this issue.                            No. 134476.

http://courtofappeals.mijud.net/documents/opinions/                                   Leder v Leder,
final/coa/20070619_c268750_46_268750.opn.pdf                       Court of Appeals Docket No. 275237, Decided
                                                                   June 26, 2007, Bandstra, P.J., and Zahra and
              Aukeman v Aukeman,                                            Fort Hood, JJ., Unpublished:
 Court of Appeals Docket No. 267326, Decided
 June 12, 2007, Davis, P.J., and Hoekstra and                     Child Custody: The mother appealed the trial court’s order
           Donofrio, JJ., Unpublished:                            denying her motion to change custody of the minor children.
                                                                  The father cross-appealed the trial court’s imposition of
Property Division: The husband appealed the property              additional requirements to assure his cooperation with
division provisions of the divorce judgment. The Court of         the custody/parenting time order. The Court of Appeals
Appeals affirmed.                                                 affirmed.

            14
                                                                                                             October 2007
The mother challenged the trial court’s conclusion that she       judgment because the relief requested in the complaint was
failed to show a change in circumstances or proper cause for      different than what was granted in the default judgment.
a change of custody. She asserted that the father neglected       The trial court denied the motion and declined to hold
the children’s dental and medical needs and instructed            a best interests hearing. In a prior appeal, the Court of
the children’s doctors to deny her access to their medical        Appeals reversed the trial court’s refusal to set aside the
records. She argued that the father’s actions amounted to a       custody provisions of the divorce judgment and remanded
change of circumstances requiring the trial court to conduct      for an evidentiary hearing on custody. See Docket No.
a hearing to reevaluate the best interest factors. The Court of   261029.
Appeals disagreed, holding that there was no evidence the
parties took the children to the dentist more often during the    After conducting the hearing on remand, the trial court found
marriage than the annual trips made post-divorce. While the       that the child had an established custodial environment
father should have been more diligent in securing follow-up       with both parents and there was not clear and convincing
care for one of the children, there was no evidence that          evidence to change the existing arrangement. Accordingly,
the mother would be more capable of providing medical             the trial court awarded joint legal and joint physical custody.
care. The father’s actions did not constitute neglect of the      The mother appealed, challenging a number of the trial
children’s medical or dental care.                                court’s findings on the best interest factors.

The father disputed the trial court’s imposition of additional    The Court of Appeals affirmed the trial court because none of
requirements on him concerning cooperation with the               the challenged findings were against the great weight of the
mother. The Court of Appeals concluded that the record            evidence. While the parties had been using text messaging
supported the trial court’s finding that the father had been      to communicate, that fact alone did not necessarily show
uncooperative with the mother concerning the children’s           that the parties had an inability to communicate. Nor
medical and dental care.                                          was the fact that they had several disagreements and
                                                                  misunderstandings about parenting time evidence that they
http://courtofappeals.mijud.net/documents/                        would be unwable to cooperate and generally agree about
opinions/final/coa/20070626_c275237_48_                           important decisions affecting the child’s welfare.
275237.opn.pdf
                                                                  Judicial Disqualification: The mother claimed that the
                   Nolen v Nolen,                                 chief trial court judge abused discretion in denying her
 Court of Appeals Docket No. 271111, decided                      motion to disqualify the trial judge. The Court of Appeals
 June 26, 2007, Bandstra, P.J., and Zahra and                     held that the mother failed to satisfy the MCR 2.003(B)(1)
          Fort Hood, JJ., Unpublished:                            standard to disqualify a judge. Repeated rulings against a
                                                                  party are not disqualifying. There were also no remarks on
The mother appealed the trial court’s custody order and the       the record indicating any bias or extrajudicial prejudice.
order denying her request to disqualify the trial judge. The
Court of Appeal affirmed.                                         http://courtofappeals.mijud.net/documents/
                                                                  opinions/final/coa/20070626_c271111_86_
Child Custody: When the father filed for divorce, his             271111.opn.pdf
complaint sought joint legal and joint physical custody. The
mother did not answer the complaint and was defaulted.            Note: The mother filed an application for leave
The father submitted and the trial court entered a default        to appeal with the Michigan Supreme Court on
judgment granting him sole legal and sole physical custody        August 7, 2007. It has been assigned Supreme
of the parties’ child. The mother moved to set aside the          Court No. 134606.




                                                                                                                  15
October 2007
          Family Law Appeals
          Scott Bassett, Esq.
                 Quality and Experience
         Past Chairperson, State Bar Family Law Section
        Fellow, American Academy of Matrimonial Lawyers
                 248-232-3840 Telephone
                    248-928-0355 Fax
                  scott@scottbassett.com
                 www.divorceappeals.com
     Appeals - Trial Court Research - Brief Writing - Consultations




              COURT-APPROVED FAMILY LAW MEDIATOR




                                         Carole L. Chiamp

                  Ms. Chiamp is among the first attorneys in Michigan to be
              designated as a Family Law Court-Approved Mediator. For more
                than 30 years she has been appointed mediator, facilitator and
               arbitrator in cases ranging from negligence, probate and contract
                                law to civil rights and family law.

                 Ms. Chiamp served as a member of the Task Force on Child
               Support and Alimony Awards, the Mediation Tribunal Selection
                Committee and the 21st Century Commission on the Courts.
                     For eighteen consecutive years she has been named
                              to The Best Lawyers in America.

                                Please contact Ms. Chiamp at:

                        Chiamp & Associates, P.C.
                                        Mediations Conducted at:
                           211 West Fort Street • Suite 615 • Detroit, MI 48226
                                  313.962.4600 • Fax 313.962.3600 and
                    555 S. Old Woodward Avenue • Suite 765 • Birmingham, MI 48009


             SERVING WAYNE AND OAKLAND COUNTIES



16
                                                                                    October 2007
                                      tax trends and deVeLOpMents
                                      by Joseph W. Cunningham, J.d., C.p.a.




This Month’s Column in a Nutshell: Recent Court                •	 Among	 the	 reasons	 for	 the	 Court’s	 decision	 was	 that	
of Appeals Case Indicates (1) Importance of                       H failed to present expert testimony concerning the
Retaining a Business Valuation Expert and (2)                     business value.
the Significance of Standard of Value. Buckner v
Buckner, Mich App No. 266887 (7/26/07)                          •	 Further,	the	Court	said	that	even	if	it	were	procedurally	
                                                                   appropriate to consider the affidavit executed by the
              FACTS OF THE CASE                                    company’s accountant, the document did not present
                                                                   a conclusion of value based on an accepted business
•	 W’s	 business	 valuation	 expert	 valued	 H’s	 business	 at	    valuation methodology.
   $2.5 million on a net asset value basis.
                                                                          COMMENTS ON THE CASE
•	 The	expert	acknowledged	that	the	value	of	the	business	
   based on its income earning capacity may be a million Importance of Engaging an Expert
   dollars or so less than the $2.5 million net asset value.
                                                                 •	 In	a	previous	decision,	the	Court	of	Appeals	ruled	that	
•	 The	 expert	 further	 acknowledged	 that	 the	 use	 of	 the	     where one party presents testimony of an expert who
   income approach – and, hence, the corresponding                  performed a business valuation analysis and the other
   lower value – may be more appropriate for the divorce            party does not, it is appropriate for the trial court to
   settlement if the owner intends to continue to operate           adopt the conclusion of the expert, despite objections
   the business.                                                    by the party who did not provide such testimony to the
                                                                    court..
•	 But,	the	expert	was	evidently	not	asked	to	perform	an	
   income based appraisal and was not provided sufficient •	 The	case	was	Kolbus v Kolbus (Mich App No. 162642
   data with which to do so.                                        (9/1/95) in which Dick McEndarffer, CPA, performed
                                                                    a business valuation. His counterpart critiqued Mr.
•	 H	did	not	engage	the	services	of	a	business	valuation	           McEndarffer’s appraisal but did not perform an
   expert to perform an appraisal or to critique the analysis       independent valuation analysis. The court adopted
   of W’s expert.                                                   McEndarffer’s conclusion of value stating that he had
                                                                    performed a complete valuation analysis on which it
•	 The	trial	court	adopted	the	$2.5	million	net	asset	value	        could rely whereas his counterpart did not.
   while stating, essentially, that W’s expert’s comments
   that an income based value appeared substantially •	 The	 Buckner case, as well as Kolbus, indicate the
   lower did not constitute a business valuation analysis           importance of engaging a business valuation expert
   on which the court could rely.                                   where one of the parties owns a business. Sometimes
                                                                    it is appropriate to hire a business valuation expert to
•	 H	filed	an	appeal	and	included	an	affidavit	executed	by	         consult concerning estimated value and/or to critique
   the company’s accountant incident to a motion for a retrial.     an appraisal performed by the other party’s expert.
   The affidavit indicated, evidently, that the cash flow of the    However, if it appears a case is headed to arbitration
   business did not correlate with a $2.5 million value.            or trial, it is essential that the expert perform an
                                                                    independent valuation analysis.
        COURT OF APPEALS DECISION
                                                               Significance of Standard – or Measure – of Value
•	 The	 Court	 of	 Appeals	 upheld	 the	 trial	 court’s	 decision	
   to use the $2.5 million net asset value in the divorce •	 It	 has	 become	 increasingly	 common	 in	 Michigan,	
   settlement.                                                     and in other states, to use the value of a business to

                                                                                                              17
October 2007
    the owner for divorce settlement purposes unless the          or practice may be of considerable value to another
    business will be sold or discontinued. This measure or        company or practice operating in the same field. But,
    standard of value is sometimes referred to as “holder’s       if the owner does not intend to sell the business or
    interest value” or “investment value assuming the owner       practice – which could be inadvisable if the owner has
    is the investor.”                                             no other means of making a living – the higher sale/
                                                                  merger value will not be realized.
•	 Often	 the	 holder’s	 interest	 value	 of	 a	 professional	
   practice or closely held business is higher than what the
                                                               •	 In	such	an	instance,	it	may	well	be	appropriate	to	use	
   business could be sold for to an unrelated third party
                                                                  the lower “value to owner” in the divorce settlement
   (fair market value). The concept is that if the family had
                                                                  with a provision that if there is a sale or merger within
   benefited from this higher value – generally measured
                                                                  a reasonable period after the divorce, that any excess
   by the financial benefits the business conferred on the
                                                                  value be divided in an equitable manner – either
   owner - and the owner will take this same value forward
                                                                  pursuant to a formula, or as decided by the mediator
   after the divorce, that such value should be used in
                                                                  or arbitrator involved in the case.
   devising an equitable division of marital property.

•	 However,	 some	 businesses	 or	 practices	 do	 not	 •	 Use	 of	 the	 lower	 “value	 to	 owner”	 assumes	 that	 the	
   generate earnings in excess of a reasonable level of   income of the business is not temporarily depressed due
   compensation to its owner. Hence, they have no good    to a short term downturn attributable to (1) a normal,
   will or incremental earnings value and, in many cases, recurring business cycle, (2) manipulation by the owner,
   have minimal net asset value. Nonetheless, because     (3) distraction of or time demands on the owner due to
   of synergies such as economies of scale, the business  the divorce.




           18
                                                                                                        October 2007
     BUSINESS VALUATIONS FOR DIVORCE: PRACTICE AID FOR LAWYERS
                BY FAMiLY LAW seCtiON AD HOC COMMittee ON BUsiNess vALUAtiONs

  this “Practice Aid” contains 24 pages including:
  •	 Guidelines	for	business	valuations	for	divorce	settlement	purposes.
  •	 Checklists	for	family	law	practitioners	on	(1)	selecting	and	working	with	an	appraiser,	(2)	information	
     necessary to value a business and (3) appropriate valuation report contents.
  •	 Various	resource	materials	for	family	law	practitioners	including	a	bibliography	of	business	valuation	
     for divorce materials.
  to obtain this publication:
  send a check or money order for $25 payable to the “state Bar of Michigan” to the following address:
                           Joseph W. Cunningham, JD, CPA, Plante & Moran, LLP
                                               .O.
                     27400 Northwestern Hwy., P Box 307, southfield, Mi 48037-0307


NOTICE RE: THIRD EDITION OF TAX CHECKLISTS FOR DIVORCE SETTLEMENTS
 the third edition of Tax Checklists for Divorce Settlements (Tax Checklists) has been updated through January 1,
 1999. it is approximately 125 pages and includes revised rules regarding tax treatment of the sale of principal
 residences and the new provisions regarding “innocent spouse” relief.
 terMs OF PUrCHAse:
 •	 For	first	time	purchasers	of	Tax Checklists, the price is $65.
 •	 For	those	whose	first	purchase	of	Tax Checklists occurred during 1998, the price is $15.
 •	 For	those	who	first	purchased	Tax Checklists prior to January 1, 1998, the price is $20.
 •	 See	the	box	below	for	information	regarding	payment	and	mailing.


                            tAX CHeCKLists FOr DivOrCe settLeMeNts
                                     BY JOsePH W. CUNNiNGHAM, JD, CPA
                   PUBLiCAtiON OF tHe FAMiLY LAW seCtiON, stAte BAr OF MiCHiGAN
                                   tHirD eDitiON – 1999 UPDAte
 this comprehensive, 125-page guide includes checklists, outline materials and illustrations on tax traps and
 planning opportunities regarding:
 •	 Using	Section	71	Payments	to	Advantage
 •	 Avoiding	Tax	Pitfalls	in	Property	Settlement	Transfers	and	Appropriately	Taking	Taxes	into	Account
 •	 Tax-planning	for	the	Marital	Residence	in	Divorce	Settlements
 •	 Providing	for	Dependency	Exemptions
 •	 Maximizing	Clients’	Tax	Benefits	from	Payment	of	Professional	Fees
 •	 Providing	for	Key	Provisions	in	QDROs/EDROs
 •	 Closely-Held	Corporations	and	Divorce	Settlements	–	Pitfalls	and	Planning
 •	 New	Innocent	Spouse	Provisions

 to order – send a check or money order payable to the state Bar of Michigan with a request for a copy of
 “tax Checklists for Divorce settlements” to:
                             Joseph W. Cunningham, JD, CPA, Plante & Moran, LLP
                                    .O.
                                   P Box 307, southfield, Mi 48037-0307



                                                                                                       19
October 2007
                                       LegisLatiVe update!
                                       by Bill Kandler
                                           Lobbyist, FamiLy Law seCtion




            Bills that the Family Law                             unless required by law. Last Action: 3/27/2007 – printed
            Council is following are:                             bill filed 03/23/2007

HB 4066 Children; adoption; posthumous adoptions;                 HB 4522 Family law; paternity; inclusion of personal
provide for retroactivity for posthumous adoptions and            information in order of filiation; prohibit unless required
medical assistance payments. Last Action: 1/23/2007               by law. Last Action: 3/27/2007 – printed bill filed
– printed bill filed 01/23/2007                                   03/23/2007

HB 4128 Civil procedure; civil actions; payment of                HB 4523 Family law; child support; inclusion of personal
medical or psychological care for a child who was                 information in an order under the family support act; prohibit
abused or neglected by a parent; provide for. Last Action:        unless required by law. Last Action: 3/27/2007 – printed
1/25/2007 – read a first time                                     bill filed 03/23/2007

HB 4140 Family law; child custody; award of custody to            HB 4564 Family law; child custody; joint custody;
parent convicted of criminal sexual conduct against his or her    mandate in every custody dispute between parents except
child; prohibit. Last Action: 1/25/2007 – read a first time       in certain circumstances. Last Action: 4/5/2007 – referred
                                                                  to Committee on Families and Children’s Services
HB 4147 Family law; child support; termination of child
support obligations when DNA evidence demonstrates payer          HB 4566 Family law; child support; repayment of child
is not the biological parent; provide for. Amends 1982 PA         support; allow under certain circumstances. Last Action:
295 (MCL 552.601 – 552.650) by adding sec. 5f. Last               4/12/2007 – printed bill filed 04/06/2007
Action: 1/31/2007 – printed bill filed 01/31/2007
                                                                  HB 4731 Family law; other; lewd and lascivious
HB 4174 Family law; parenting time; electronic visitation;        cohabitation; repeal prohibition. Amends sec. 335 of 1931
allow court to order for parents and grandparents. Amends         PA 328 (MCL 750.335). Last Action: 5/10/2007 – printed
secs. 7a, 7b & 11 of 1970 PA 91 (MCL 722.27a et seq.).            bill filed 05/10/2007
Last Action: 1/31/2007 – printed bill filed 01/31/2007
                                                                  HB 4735 Human services; children’s services; procedure
HB 4180 Probate; powers of attorney; uniform power of             for placement of children in a foster home; expand to
attorney act; enact. Creates new act & repeals secs. 5501         give special consideration to relatives. Amends sec. 4a of
– 5505 of 1998 PA 386 (MCL 700.5501 – 700.5505).                  1994 PA 203 (MCL 722.954a). Last Action: 06/19/2007
Last Action: 1/31/2007 – printed bill filed 01/31/2007            – REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
                                                                  SERVICES
HB 4241 Family law; marriage and divorce; entry of social
security number on marriage license application; clarify          HB 4736 Human services; children’s services; procedure
that county clerk is not to accept noncomplying application.      for placement of children in a foster home; expand to
Amends sec. 2 of 1887 PA 128 (MCL 551.102). Last                  give special consideration to individuals of same religious
Action: 2/13/2007 – printed bill filed 02/09/2007                 background. Amends sec. 4a of 1994 PA 203 (MCL
                                                                  722.954a). Last Action: 06/19/2007 – REFERRED TO
HB 4259 Children; adoption; second parent adoption;               COMMITTEE ON FAMILIES AND HUMAN SERVICES
provide for. Last Action: 5/9/2007 – referred to second
reading                                                           HB 4737 Human services; children’s services; requirement
                                                                  for parental disclosure of relatives when placing a child in a
HB 4521 Family law; marriage and divorce; certain                 home other than that of a parent; implement. Amends sec.
inclusion of personal information in judgment; prohibit           13a, ch. XIIA of 1939 PA 288 (MCL 712A.13a).

            20
                                                                                                             October 2007
Last Action: 06/21/2007 – REFERRED TO COMMITTEE                  individual’s home; require prior court approval. Amends
ON FAMILIES AND HUMAN SERVICES                                   secs. 5422 & 5423 of 1998 PA 386 (MCL 700.5422 &
                                                                 700.5423). TIE BAR WITH: HB 5186’07, HB 5188’07. Last
HB 4741 Family law; personal protection orders;                  Action: 09/11/2007 – printed bill filed 09/10/2007
prohibition against harming animals owned by petitioner;
include in personal protection order. Amends sec. 2950 of        HB 5188 Probate; guardians and conservators; bond;
1961 PA 236 (MCL 600.2950). Last Action: 5/15/2007               require if protected individual has liquid assets over certain
– printed bill filed 05/11/2007                                  limit. Amends sec. 5410 of 1998 PA 386 (MCL 700.5410).
                                                                 TIE BAR WITH: HB 5186’07, HB 5187’07. Last Action:
HB 4742 Crimes; domestic violence; penalties for killing         09/11/2007 – printed bill filed 09/10/2007
or torturing animal in perpetration of domestic violence;
increase. Amends sec. 50b of 1931 PA 328 (MCL 750.50b).          SB 141 Children; services; court–appointed special
Last Action: 5/15/2007 – printed bill filed 05/11/2007           advocates; provide for. Creates new act. Last Action:
                                                                 1/31/2007 – REFERRED TO COMMITTEE ON FAMILIES
HB 4743 Criminal procedure; sentencing guidelines;               AND HUMAN SERVICES
sentencing guidelines for crime of killing or torturing an
animal in perpetrating an act of domestic violence; enact.       SB 170 Children; guardians; relative guardianship
Amends sec. 16b, ch. XVII of 1927 PA 175 (MCL 777.16b).          assistance act; establish. Creates new act. Last Action:
TIE BAR WITH: HB 4742’07. Last Action: 5/15/2007                 2/6/2007 – REFERRED TO COMMITTEE ON FAMILIES
– printed bill filed 05/11/2007                                  AND HUMAN SERVICES

HB 4818 Family law; child custody; factors determining           SB 171 Children; foster care; relative care; require same
best interest of child; include equal time for both parents as   level of support as foster care. Amends secs. 18c, 55 &
a factor. Amends sec. 3 of 1970 PA 91 (MCL 722.23). Last         115b of 1939 PA 280 (MCL 400.18c et seq.) & adds sec.
Action: 5/24/2007 – printed bill filed 05/24/2007                18b. TIE BAR WITH: SB 0172’07 Last Action: 2/6/2007
                                                                 – REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
HB 4896 Records; adoption; issuance of certified copy            SERVICES
of original certificate of live birth to certain adopted
individuals; allow. Amends sec. 2832 of 1978 PA 368 (MCL         SB 172 Children; foster care; child under relative’s care;
333.2832) & adds sec. 2832a. Last Action: 06/13/2007             prohibit removal under certain circumstances. Amends
– printed bill filed 06/13/2007                                  1939 PA 288 (MCL 710.21 – 712A.32) by adding sec.
                                                                 11a to ch. XIIA. Last Action: 2/6/2007 – REFERRED TO
HB 4925 Children; abduction; uniform child abduction             COMMITTEE ON FAMILIES AND HUMAN SERVICES
prevention act; create. Creates new act. Last Action:
06/19/2007 – printed bill filed 06/15/2007                       SB 476 Family law; child custody; court review of arbitrator’s
                                                                 decision on custody; allow court to gather additional
SB 34 Criminal procedure; sentencing; requirement of             evidence. Last Action: 6/13 Passed House –REFERRED TO
presentence report for nonpayment of support; eliminate.         COMMITTEE ON FAMILIES AND CHILDREN’S SERVICES
Last Action: 1/24/2007 – REFERRED TO COMMITTEE ON
JUDICIARY                                                        SB 477 Family law; child custody; child custody disputes
                                                                 that have been arbitrated; require courts to resolve in
HB 5050 Family law; friend of the court; bank accounts           accordance with domestic relations arbitration provisions of
of self–employed child support payers; require payers to         the RJA. Amends sec. 4 of 1970 PA 91 (MCL 722.24). Last
disclose and allow friend of court to obtain information         Action: 6/13 Passed House – REFERRED TO COMMITTEE
regarding. Amends sec. 5a of 1982 PA 295 (MCL                    ON FAMILIES AND CHILDREN’S SERVICES
552.605a) & adds sec. 27a. Last Action: 07/25/2007
– printed bill filed 07/25/2007                                  SB 506 Family law; paternity; circumstances under which
                                                                 putative father may sue to establish paternity of a child
HB 5186 Probate; guardians and conservators; appointment         born to a married woman; establish. Amends secs. 1, 4
of conservator; require court to consider if person under a      & 6 of 1956 PA 205 (MCL 722.711 et seq.). Last Action:
guardianship has liquid assets of more than certain limit.       5/16/2007 – REFERRED TO COMMITTEE ON FAMILIES
Amends sec. 5305 of 1998 PA 386 (MCL 700.5305) &                 AND HUMAN SERVICES
adds sec. 5319. TIE BAR WITH: HB 5187’07, HB 5188’07.
Last Action: 09/11/2007 – printed bill filed 09/10/2007          SB 522 Family law; friend of the court; informational
                                                                 pamphlet; allow to be provided electronically. Last Action:
HB 5187 Probate; guardians and conservators; power               5/22/2007 – REFERRED TO COMMITTEE ON FAMILIES
of conservator to mortgage or place lien on protected            AND HUMAN SERVICES


                                                                                                                21
October 2007
SB 543 Children; protection; appeal process; provide                 SB 668 Family law; parental rights; termination of parental
for. Amends 1935 PA 220 (MCL 400.201 – 400.214) by                   rights and parenting time; clarify. Amends sec. 19b, ch. XIIA
adding sec. 5b. Last Action: 5/25/2007 – REFERRED TO                 of 1939 PA 288 (MCL 712A.19b). Last Action: 08/01/2007
COMMITTEE ON FAMILIES AND HUMAN SERVICES                             – REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
                                                                     SERVICES
SB 553 Family law; child support; system for payment of
support over the internet; require office of child support to        SB 669 Children; foster care; permanency plan and
establish. Amends sec. 6 of 1971 PA 174 (MCL 400.236).               permanent placement of a child; clarify. Amends sec. 19a,
Last Action: 5/25/2007 – REFERRED TO COMMITTEE ON                    ch. XIIA of 1939 PA 288 (MCL 712A.19a). TIE BAR WITH:
FAMILIES AND HUMAN SERVICES                                          SB 0671’07 Last Action: 08/01/2007 – REFERRED TO
                                                                     COMMITTEE ON FAMILIES AND HUMAN SERVICES
SB 592 Records; adoption; issuance of certified copy of
original certificate of live birth to certain adopted individuals;   SB 670 Children; protection; notice regarding termination
allow. Amends sec. 2832 of 1978 PA 368 (MCL 333.2832)                of parental rights; revise. Amends sec. 13b, ch. XIIA of
& adds sec. 2832a. Last Action: 06/19/2007 – REFERRED                1939 PA 288 (MCL 712A.13b). Last Action: 08/01/2007
TO COMMITTEE ON FAMILIES AND HUMAN SERVICES                          – REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
                                                                     SERVICES
SB 645 Family law; child support; use of substitute service
for complaint under family support act; allow. Amends sec. 1         SB 671 Children; foster care; alternate permanency plan
of 1966 PA 138 (MCL 552.451). Last Action: 07/24/2007                to be made concurrently with reasonable efforts to reunify
– REFERRED TO COMMITTEE ON JUDICIARY                                 child and family; allow. Amends sec. 19, ch. XIIA of 1939 PA
                                                                     288 (MCL 712A.19). Last Action: 08/01/2007 – REFERRED
SB 666 Children; adoption; second parent adoption;                   TO COMMITTEE ON FAMILIES AND HUMAN SERVICES
provide for. Amends secs. 24 & 51 of 1939 PA 288 (MCL
710.24 & 710.51). Last Action: 08/01/2007 – REFERRED                 SB 672 Children; foster care; review of permanency
TO COMMITTEE ON JUDICIARY                                            plan; require. Amends sec. 19c, ch. XIIA of 1939 PA 288
                                                                     (MCL 712A.19c). TIE BAR WITH: SB 0671’07. Last Action:
SB 667 Family law; marriage and divorce; persons                     08/01/2007 – REFERRED TO COMMITTEE ON FAMILIES
authorized to solemnize marriage; allow county clerk in a            AND HUMAN SERVICES
county other than county in which clerk serves. Amends sec.
7 of 1846 RS 83 (MCL 551.7). Last Action: 08/01/2007
– REFERRED TO COMMITTEE ON JUDICIARY




            22
                                                                                                                October 2007
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                                   Own the new SMILE DVD…
 A new production of the SMILE (Start Making it Livable for Everyone) DVD is available for purchase.

 The new SMILE is available on DVD in a 50-minute or 18-minute version.

 You may order the DVD by completing the below form and returning it to the Oakland County Friend of
 the Court with payment. For additional information, please contact the Oakland County Friend of the
 Court at 248-858-0453.

                                            Friend of the Court
                                              PO Box 436012
                                           Pontiac, MI 48343-6012

 I would like to order a copy of the…
 r The 18-minute minute DVD. Payment of $30 is enclosed.
 r The one-hour DVD. Payment of $30 is enclosed.
 r Both the one-hour and 18-minute DVD. Payment of $50 is enclosed.
 r A total of _____ copies of the long DVD at $30 per copy.
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                                                                                                       23
October 2007
                                            the Case OF the issue
                                            by henry s. gornbein
                                                 Gornbein, FLetCher & smith, p.L.L.C.




William D. Johnson, Plaintiff/Counter-Defendant-Appellant                        (d) Arbitration may not be appropriate in all cases.
v Lillian B. Johnson, Defendant/Counter-Plaintiff-Appellee,
for publication June 7, 2007                                                 MCL 600.5072(1)(a)-(d)

                   Statement of Facts                                        The record on appeal revealed that the mandatory pre-
                                                                             arbitration disclosures were not satisfied. The statement of
This is a case that has a very tortured background. There                    the second judge that advised the parties the property issues
were three different judges involved in the case. There were                 were being submitted to the arbitrator, and that the decision
issues raised with regard to when the parties separated, along               would be the final word, failed to apprise the parties that
with the fact that the Plaintiff-husband had been leading two                appellate review was available, but limited. In addition, the
separate lives with an illegitimate child in another relationship.           record is unclear as to whether the agreement to arbitrate
The first judge at one point had held that the issue of spousal              delineated the fact that spousal support or alimony was
support was off the table. The second judge took proofs as to                held in reserve for the first judge to resolve. The written
the breakdown of the marital relationship, and the division                  and oral statements did not provide that the arbitration was
of assets was reserved for binding arbitration. The case                     voluntary, and in light of the trial court’s admonishment to
was not returned to the first judge. Instead, a third judge, a               the parties that the case would be resolved the next day, it is
visiting judge, presided over the case and entered orders.                   unclear the decision to arbitrate was voluntary. In addition,
The written order provided that the division of the balance                  the second judge did not advise the parties that the fee for
of the marital property was submitted to binding arbitration                 arbitration was unnecessary, if they elected to proceed to
with each party responsible for half the fee. Discovery                      have the court to resolve the matter. The first judge erred in
had been closed, and the trial had occurred, and the                         allowing the default judgment premised on Plaintiff’s failure
third judge also granted a motion by Defendant to require                    to participate in arbitration when he was not advised of
asset disclosure. Both parties were to complete an asset                     the statutory criteria for voluntary submission. The Court of
disclosure form available from the first judge, and submitted                Appeals set aside the default judgment based upon the non-
before arbitration. When the time for arbitration arrived, the               compliance with MCL 600.5072.
Plaintiff-husband refused to participate. He alleged that the
arbitration encompassed issues which he had not agreed to.                                          Conclusion
He also requested a new trial. The motion for a new trial was
denied, and a default judgment of divorce was entered by the                 This case is fact specific, but it spells out the fact that
first judge after Plaintiff refused to participate in the arbitration.       whenever a case is put into binding arbitration, there must
The crux of this case deals with the arbitration statute.                    be a full record made, the arbitration agreement must spell
                                                                             out exactly what the powers and limits of the arbitrator are,
                           The Law                                           as well as what issues are to be covered in arbitration. A
                                                                             concern I have is that there are some judges who are now
MCL 600.5072(1) provides that the trial court shall not                      taking the position that under the arbitration agreement, an
order a party to participate in arbitration unless there is an               arbitrator, even if the agreement does not give the arbitrator
acknowledgment on the record or in writing that:                             that authority, can make spousal support non-modifiable,
                                                                             where a trial court does not have that power. I’m concerned
    (a) The submission to arbitration is voluntary;                          about the direction of arbitration. I am concerned about the
                                                                             fact that parties are not being fully advised, and the judges
    (b) The outcome of the arbitration will be binding and                   are, in instances, allowing cases to enter arbitration without
        appellate review is limited;                                         the attorneys or the court fully explaining to the parties
                                                                             what their rights are, and what is being waived. I feel a
    (c) An arbitration is not recommended for domestic                       commentary on this issue is important, and clarification of
        violence or other domestic cases;                                    what powers an arbitrator has, is necessary.


             24
                                                                                                                     October 2007
                                       the enFOrCer
                                       by david Findling
                                            the FindLinG Law Firm




  Papa Was a Rolling Stone, Wherever                                    unpaid and shall continue until the amount of past due
    He Laid His Hat Was His Home                                        support is paid in full or the lien is terminated by the
                                                                        title IV-D agency.
But when he died, all he left me was alone. Your client
wants more from the father than just to be left alone. Your         Consequently, the unpaid support may be satisfied from the
client wants child support from the decedent. Does Michigan         estate’s proceeds or assets.
law provide for child support after the death of a support
payer?                                                              The court also has the authority to secure the payment of
                                                                    future support. The court may impose a lien on the payor’s
Following the death of a child support payer, what                  personal and real property for the amount of child support
happens to current child support? Arrearages? Under MCL             which is past due and to “require security for payment of
§700.3705(6), a personal representative must provide the            support that is . . . due in the future.” Milligan v. Milligan,
identity of the heirs of an intestate estate, and the devisees      197 Mich. App. 665, 670 N.W.2d 394 (1992). (See also
of a testate estate, to the Friend of the Court. The notice is      MCL §552.27(c) for the court’s authority to sequester the
provided to the Friend of the Court in the county where the         payor’s property for future support).
estate is being administered, and at the same time the notice
of the appointment is provided under MCL §700.3705(1).              It should be noted that the granting of a lien does not insure
Effective October 1, 2005, MCL §700.3705(6) requires:               payment. The estate’s assets may be secured by other
                                                                    obligations, the property’s value may be de minimis, and
    ... at the same time the notice required by subsection          there may be other estate claims. Furthermore, the granting
    (1) is given, the personal representative shall give            of a lien is different than the perfection of a lien. It would still
    notice to the Friend of the Court for the county in which       be necessary for the Personal Representative or the support
    the estate is being administered, which notice identifies       claimant to perfect the lien after it is granted.
    the decedent’s surviving spouse and the individuals
    who are, for a testate estate, the devisees or, for an          The personal representative does not necessarily have a
    intestate estate, the heirs. The personal representative is     fiduciary duty to ensure that a support obligation is actually
    not required to notify the friend of the court of a devise      paid by the estate. If the Friend of the Court, the support
    to a trustee of an existing trust or to a trustee under a       claimant, or the court do not take steps to effectuate the
    will. A personal representative incurs no obligation or         granting of a lien, then no obligation will inure to the
    liability to the friend of the court or to another person       Personal Representative. In the event that proper notification
    for an error or omission made in good faith compliance          is not provided, it remains up to the payee to notify the
    with this subsection.                                           court and to seek distribution from the decedent’s estate or
                                                                    to make a claim against the Personal Representative for a
Arrearages for unpaid support constitute a lien on the              breach under MCL 700.3715(6).
payer’s estate for the amount of child support which is past
due. Accordingly, MCL §552.625a(1) states:                          Finally, in certain circumstances a lien is not applicable for
                                                                    unpaid support payments. For instance, a lien against a
    The amount of past due support that accrues under a             decedent’s estate is not applicable toward the homestead,
    judgment as provided in section 3 or under the law of           other exempt property, family allowances or trusts.1
    another state constitutes a lien in favor of the recipient      Moreover, a lien is not applicable toward any money paid to
    of support against the real and personal property of a          the estate to the extent that such money is owed for attorney
    payer, including, but not limited to, money paid as a           fees or litigation expenses.2 It also does not apply toward
    distribution from a decedent’s estate; as the result of a       Medicaid, medical services, medical reimbursements, or
    claim of negligence, personal injury, or death . . . The        Medicare. Additionally, inheritance and estate assets are
    lien is effective at the time that the support is due and       not items subject to the lien.3 Although the lien may be


                                                                                                                        25
October 2007
placed against an inheritance distribution it may not be
placed against the estate itself.

                     Endnotes

1. M.C.L. 552.625a(6)(c)

2. M.C.L. 552.625a(6)(e)

3. M.C.L. 552.625c(2)




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          26
                                                                                                   October 2007
                               Letter tO the editOr
                                   submitted by ross F. stancati




                                            A TRAP OR A TOOL?

     Every now and then we come upon a situation that would appear to be a trap for a lawyer that spells
     malpractice.

     Knowledge of that trap can sometimes provide a useful tool or advantage in future situations.

     A widowed spouse comes to your office and tells you that she or he has been married to A for two or four
     years. That in A’s first marriage he had two children. That prior to the widowed spouses marriage to A,
     A executed a Will giving everything to A’s two children.

     This widowed spouse now wants to know what rights the widowed spouse has to the estate of A.

     Ah, you say, well I believe that you are entitled to a portion of A’s estate as a pretermitted spouse. You
     can claim against the Will.

     Isn’t this what you as an educated attorney would say? Isn’t this what we were taught in law school?

     However, when we get to the Probate statute we might find:

       1. Yes, under MCL 700.2301(1) the spouse is, in fact, a pretermitted spouse on the facts as we know
          them.

     However, MCL 700.2301(1)(a) says that if the Will directs the assets of the estate to or in trust for the
     benefit of a child of the testator who was born before the testator married the surviving spouse and who
     is not the child of the surviving spouse, then surviving spouse gets nothing. See: In re Estate of Cecil C.
     Warren Jr., Deceased, Unpublished Michigan Court of Appeals No. 262937.

     Surprised? I was.

     Now that you know, how do we use it? Doesn’t this knowledge now become a tool for you post
     divorce?

     Advice to a client post divorce certainly is important. That a single parent might want to protect his or her
     estate from future alliances, and the way to do it would be important to them.

     The knowledge that with a Will behind them they can decide what to share with their future spouses and
     what not to share is again important.

     MCL 700.2301(1)(a) another tool of the family lawyer to advise his clients post divorce or another trap
     you need to know and advise your client about before marriage.

     Respectfully submitted,

     Ross F. Stancati




                                                                                                            27
October 2007
                             Letter tO the editOr
                                 submitted by Carole L. Chiamp




August 28, 2007

Dear Norm:

As I continue to review the family law practice, it hurts me to see so few color of people in the ranks
of writers in the Journal, members of the family law council, members of the American Academy of
Matrimonial Lawyers, Best Lawyers in American, etc.

Is there something we can do to change this? In the City of Detroit the population is at least 80% African
American. Shouldn’t those litigants, for example, be able to read regular or special issues of the Family
Law Journal and see pictures of the people who write articles whose skin color matches theirs?

What do you think?

Sincerely,

Carole L. Chiamp

CLC:saa




       28
                                                                                                     October 2007
                        the WengeL MaLpraCtiCe trap
                                         by Blaine B. Johnson, Jr.
                                              bLaine b. Johnson, Jr., p.C., JaCkson, mi


                       I. Introduction                              to Florida. The point of Plaintiff’s quiet title action was to
                                                                    award Plaintiff title to the property (in fee simple), so that
On February 28, 2006, the Court of Appeals issued an                she could mortgage and sell the property as she wished.
important property law decision in Wengel v Wengel, 270             She failed. The $25,000.00 Defendant initially demanded
Mich App 86; 714 NW2d 371 (2006), involving a parcel of             appears to have been a bargain, because now, assuming
real property owned by the parties as “joint tenants with full      the property is worth $100,000.00, Plaintiff could not force
rights of survivorship.” But the decision has a major impact        Defendant to accept $200,000.00 to release his contingent
on family law lawyers when advising unmarried parties.              remainder interest in the property. Plaintiff is absolutely
                                                                    hamstrung, simply because of the manner in which Plaintiff
                         II. Holding                                caused Defendant’s name to be placed on the conveyancing
                                                                    instrument. Defendant could have contributed some “sweat
As between unmarried parties who own real property                  equity” by way of improvements to the property (which he
jointly with rights of survivorship (that is, a joint life estate   claimed occurred), or Plaintiff could have been enamored
with dual contingent remainders), the doctrine of adverse           with Defendant and wanted to demonstrate her affection
possession is available to the occupying tenant to defeat           for and commitment to Defendant, by adding his name to
the ousted cotenant’s life estate interest, but the ousted life     the property. But whether Defendant contributed or not, it
tenant’s contingent remainder cannot be destroyed through           doesn’t matter. He still wins.
adverse possession.
                                                                                          V. Malpractice Trap
                           III. Facts
                                                                    Not mentioned in the Court of Appeals’ decision is how
Plaintiff and Defendant met in 1972, became romantically            Plaintiff’s lawyer advised her relative to the drafting of the
involved, and lived together. Two years later, Plaintiff            deed. If the lawyer did not understand dual contingent
purchased a home, and titled the property in her name               remainders, and did not have a working knowledge of
alone. In 1981, Plaintiff conveyed the property to Defendant        Albro v Albro,2 that lawyer may well have breached the
and herself “as joint tenants with full rights of survivorship,”1   standard of care and left the door open to defending a
In 1985, the parties had a disagreement, and Defendant              malpractice action for failing to properly advise the client
moved out of the home. Plaintiff told Defendant that “he            as to the consequences of conveying property “jointly with
should have his name removed from the property,” but                full rights of survivorship.”
Defendant refused to do so unless he received $25,000.00.
Plaintiff declined to pay Defendant anything, including any                                 VI. Take Away
portion of some rental income generated by the property.
Instead, Plaintiff performed all of the maintenance, made           Don’t shy away from drafting deeds involving unmarried
all of the mortgage payments, and paid all of the insurance         parties. Just take the time to thoroughly explain the ramifications
premiums and taxes associated with the property. Plaintiff          of joint tenancies, and charge the client accordingly. Becoming
had exclusive possession of the property from 1984 until            knowledgeable not only means that you are a better lawyer. It
2004, when she filed her action to quiet title. Although            also means that you will be paid better.
Plaintiff won that part of her lawsuit as to Defendant’s life
estate interest in the property, she lost the most important/                                   Endnotes
valuable part of the lawsuit, as Defendant retained his
contingent remainder in fee simple.                                 I.   The magic language used to create joint life estates with dual
                                                                         contingent remainders includes: “and to the survivor of them,’
                                                                         “to them and the survivor of them,” “or survivor of them,” “with
                         IV. Impact
                                                                         right of survivorship,” or “with full rights of survivorship.”
Plaintiff was left with her joint cotenant out of the picture
                                                                    2.   Albro v Allen, 434 Mich 271; 454 NW2d 85 (1990), a
during his lifetime, but Defendant still retained the right              case both Jeanne M. Hannah, Esq., of Traverse City, and
to all of the property once Plaintiff died. That meant no                Adele P. Laport, Esq., of Ann Arbor, frequently cite relative
victory at all, inasmuch as Defendant had already been out               to real property issues on the professional online discussion
of Plaintiff’s life for 19 years, and, according to Plaintiff,           group sponsored by the State Bar of Michigan - Family Law
Defendant had left her for another woman and moved                       Section (“listserv”).



                                                                                                                         29
October 2007
                    ethiCaL COnsideratiOns FOr the
                    MiChigan COLLaBOratiVe LaWyer
                                         by erika L. salerno, J.d.1


In February of 2007, the Ethics Committee of the Colorado            the collaborative process, and pursue court intervention.
Bar Association (“CBA”) issued an advisory opinion                   The Collaborative Participation Agreement does not bind
criticizing Collaborative Practice.2 Collaborative Practice is       the lawyers or clients to the process. The Participation
a form of alternative dispute resolution in which the clients        Agreement simply states each party’s desire to resolve the
and lawyers agree to work toward resolving all of the issues         divorce through the collaborative process, describes the
through facilitative negotiation, without court intervention.3       collaborative process, and sets out each party’s commitment
Collaborative lawyers limit the scope of their representation        to honor the collaborative process, as long as the parties
within their Retainer Agreements, and commit to the                  remain in the collaborative process.8 Family law lawyers
process by signing a Participation Agreement limiting the            routinely enter into similar agreements without the fear
scope of the representation and outlining the process. The           they have taken on the “other spouse” as their client.9 For
Participation Agreement is signed by the lawyers, and                example, most lawyers regularly employ collaborative
individual clients.                                                  techniques in their practices such as informal discovery,
                                                                     joint appraisals, and civil and non-threatening behavior.10
The CBA opinion states that a Colorado attorney cannot               As a result, the Participation Agreement does not bind either
sign a Collaborative Law Participation Agreement without             party or either attorney to the collaborative process.11 Each
violating Rule 1.7 of the Colorado Rules of Professional             commits to the process for only so long as each wishes to
Conduct.4 This CBA opinion has rekindled the debate                  continue the process.12
regarding whether lawyers who engage in Collaborative
Practice are violating state ethical rules.5 Several jurisdictions   Furthermore, the CBA opinion rests upon a faulty analysis of
have already upheld Collaborative Practice as ethical                Rule 1.7. The Colorado Rule 1.7(b), similar to the Michigan
under the ABA Model Rules of Professional Conduct.6 As               rule, states that a lawyer shall not represent a client if the
of the date of this article, the Michigan State Bar has not          representation may be materially limited by the lawyer’s
yet issued an opinion on the matter. However, an analysis            responsibilities to a third person, or the lawyer’s own
of the CBA opinion and the Michigan Rules of Professional            interests.13 However, an exception arises when the lawyer
Conduct (“MRPC”) clearly demonstrate that Collaborative              believes the representation will not be adversely affected
Practice does not violate ethical rules governing lawyers or         and the client consents after consultation.14 The CBA opinion
the MRPC.                                                            concludes that a client’s consent is invalid because if the
                                                                     process should terminate, the lawyer must withdraw, and
First of all, the CBA opinion ignores its own Rule 1.2, which        cannot represent the client as the case moves forward into
is similar to MRPC 1.2. MRPC 1.2 states that a lawyer                litigation.15 Here, the CBA opinion implies a collaborative
may “limit the objectives of the representation if the client        lawyer cannot adequately help the client consider litigation
consents after consultation.”7 Therefore, clients have the right     alternatives in a material way.16 This rationale is completely
to manage and direct the role and scope of their lawyer’s            flawed. A Collaborative lawyer owes the same obligation
work, and the resolution of their case. After all, especially        to his client as any other family lawyer.17 The Collaborative
in the context of family law, it is our client who actually lives    lawyer must exercise appropriate professional judgment in
with the ramifications of a particular outcome of a case once        recommending the collaborative process, monitoring the
it is resolved. For some individuals and families, alternative       process, and, if the process is not working, advising the
dispute resolution, and collaborative practice in particular,        client to leave the process.
provides the ability to craft an outcome and allows them to
move forward, rather than getting caught up in the angst             In conclusion, the CBA opinion serves as a good reminder
of litigation. This decision is not fundamentally different          to all family law practitioners that if there is a risk that your
than a criminal defendant who chooses not to testify, or a           representation of one or more clients will be materially
corporation that chooses to arbitrate a dispute.                     limited by your responsibilities to a third party, the
                                                                     representation can continue only if each affected client gives
Secondly, the CBA opinion suggests that the signing of the           informed consent, after full disclosure and consultation. The
Collaborative Practice Participation Agreement creates a             Collaborative lawyer must carefully draft the Collaborative
contractual relationship with the opposing party because             Retainer Agreement that limits the scope of the representation
the Participation Agreement requires a lawyer to withdraw            in the collaborative context and review it with the client. In
from the case, should either party choose to terminate               addition, the Collaborative lawyer must fully explain the


            30
                                                                                                                   October 2007
various process options available for resolving a legal                New Jersey, Opinion 699, Dec. 12, 2005; 2002 WL
matter, including mediation, and litigation, and be direct             2029469 (N.C. St. Bar); and Pennsylvania Bar Assoc.,
with the client about the collaborative process, the pros and          Informal Opinion 2004-24.
cons, as well as the risks involved.
                                                                    7. MRPC 1.2.
                         Endnotes
                                                                    8. Cross, Daniel R. & Schneider, Jolene D., “Collaborative
 1. Currently, Ms. Salerno practices with Kreis, Enderle,              Process, Itself, Doesn’t Lead to Malpractice.” Wisconsin
    Callander & Hudgins, P .C., in Kalamazoo, MI.                      Lawyer, Vol. 75, No.5, May 2002.

 2. Opinion No. 115 (http://www.cobar.org/group/                    9. Id.
    display.cfm?Gen ID=1059&EntitylD=CETH).
                                                                   10. Id.
 3. The Collaborative Divorce Model is essentially a team
    approach to conflict resolution. This approach may             11. Id.
    also involve hiring other professionals such as Divorce
    Coaches, Child Specialists, Financial Specialists and
                                                                   12. Id.
    Mediators to resolve all of the issues in the conflict.
                                                                   13. Opinion No. 115 (http://www.cobar.org/group/
 4. Id.
                                                                       display.cfm?Gen ID=1059&EntityID=CETH). See also,
                                                                       Colo. RPC l.7(b); MRPC l.7(b).
 5. See IACP Ethics Task Force, “The Ethics of the Collaborative
    Participation Agreement: A Critique of Colorado’s Maverick
    Ethics Opinion.” (http://www.collaborativepractice.            14. Id.
    com/documents/ACPEthicsTaskForcearticle.pdf); Lande,
    John, “Lessons for Collaborative Lawyers & Other Dispute       15. Id.
    Resolution Professional from Colorado Bar Association
    Ethics Opinion 115.” (http://www.mediate.com/articles/         16. Id.
    landeJ3.cfm).
                                                                   17. Cross, Daniel R. & Schneider, Jolene D., “Collaborative
 6. Kentucky Bar Assoc., Ethics Opinion KBAE-425, June                 Process, Itself, Doesn’t Lead to Malpractice.” Wisconsin
    2005; Advisory Committee on Professional Ethics,                   Lawyer, Vol. 75, No. 5, May 2002.




                                                                                                                 31
October 2007
                Bad things that Can happen When
                 CLients dOn’t update BeneFiCiary
                   designatiOns aFter diVOrCe
                                     by stephanie a. neal

                      Introduction                                     II.     Michigan Statute – MCL 552.101

Family law practitioners routinely advise their clients to    MCL 552.101(4) Pension, Annuity or Retirement Benefits:
update the beneficiaries of their retirement plans, profit    Each judgment of divorce or judgment of separate
sharing, pensions, or other qualified retirement plans,       maintenance shall determine all rights of the husband and
and life insurance policies ASAP after a divorce is final,    wife in all to all of the following:
consistent with the terms of the judgment of divorce and
the plan documents. Some clients will not have the option        a.    Any pension, annuity or retirement benefits.
to revise beneficiary designations following their divorce
(some plan documents do not allow a change of beneficiary,       b.    Any accumulated contributions in any pension,
for example, when participant is in active-pay status). The            annuity or retirement system.
plan documents may not allow a change of beneficiary
(state court judgment of divorce may not be enforceable          c.    Any right or contingent right in and to unvested
with respect to a change of beneficiaries if it does not               pension, annuity or retirement benefits.
satisfy the requirements of a QDRO set forth in 29 USC
1056(d)3)). Where the plan documents and the QDRO             MCL 552.101(2) Wife’s rights in life insurance, endowment
make a change of beneficiaries permissible following a        or annuity contracts; and MCL 552.101(3) Husband’s rights
divorce some clients simply never get around to updating      in life insurance, endowment or annuity contracts.
the beneficiary designation before they die. The failure to
update beneficiaries will leave the potential recipient of    Insurance waiver statutes.
the death benefit uncertain, delay the payment of benefits,
and increase the complexity and expense of the claims
                                                                      Federal Courts Favor Plan Documents
procedure. This scenario can create competing interests
                                                                          Under Laws of Preemption –
between federal and state laws. Family law practitioners
                                                                         6th Circuit U.S. Supreme Court
should be mindful that oftentimes they may have the ability
to do some forum shopping. Several factors may influence
                                                              Cases out of the Sixth Circuit generally have enforced Plan
whether to seek relief in federal or state court. When a
                                                              documents on file with the Plan Administrator on the date of
conflict between federal and state law surfaces, which
                                                              death, even though the designated beneficiary may have
party prevails?
                                                              waived all rights to benefits during divorce proceedings.
                   Typical Dilemmas
                                                                         McMillan v Parrott, 913 F2d 310
    Federal Law         vs.             State Law                          (61h Cir., Kentucky 1990)

Plan Document           vs.        Judgment of Divorce        Dr. Parrott died less than 24 hours after marrying his third
                                                              wife, Claudia. At the time his pension and profit sharing
       Client:          vs.           Client: Estate          plans were created Dr. Parrott was married to Barbara
Former Spouse                         (New Spouse             and he named her as his beneficiary and his son from a
                                       or Children)           prior marriage as his contingent beneficiary. When he
                                                              and Barbara divorced they entered into a joint property
                  Competing Statutes
                                                              settlement that divided their marital property and contained
The following federal and state laws are often at odds in     a waiver clause relinquishing “any and all” claims he
these disputes.                                               or she would have against the other. Dr. Parrott never
                                                              designated a new beneficiary and Barbara remained as
     I. Federal Statutes – ERISA 29 use 110 I et seq.         his designated beneficiary at the time of his death. Upon
                                                              his demise, his widow, the children of another marriage
ERISA shall supersede any and all state laws that relate to   and his estate made claims against one half the proceeds
any employee benefit plan. ERISA 5I4(a); 29 use 1144(a)       in his vested ERISA pension and profit sharing plans. Held:
– Preemption clause.                                          ERISA plans are to be administered according to their


           32
                                                                                                        October 2007
controlling documents. The designation on file with the plan                                QDRO requirements thus
administrator at the time of his death controls. Barbara’s                                  plan administrator paid group
waiver would not be effective here. For a waiver to be                                      benefits to designated
effective, it must specifically refer to the spouse’s rights as                             beneficiaries (children); but once
beneficiary in an ERISA plan.                                                               paid, district court had discretion
                                                                                            to impose constructive trust upon
McMillan v Parrott        913 F2d 126 (61h Cir 1990)                                        benefits in accordance with state
Parties:                  Plan vs. Former Spouse, Widow,                                    law if equity so required.
Children & Estate                                                 Held:                     Plan Documents (Beneficiary
Assets in Dispute:        Pension & Profit Sharing Plans                                    Designation) controlled but
Result:                   Former Spouse Prevailed                                           possible state law alternative
                                                                                            considered once released by plan.
Held:                     Plan Documents (Beneficiary
                          Designation) Controlled
                                                                  Ford Motor Co v Ross:     129 FSupp2d 1070 (2001)
Also see                                                          Parties:                  Estate (adult children) and
                                                                                            surviving spouse (divorce
Metropolitan Life Ins     82 F3d 126 6th Cir 1996                                           pending when participant died,
Parties:                  Former Souse vs. Estate                                           premarital agreement had been
Assets in Dispute:        Life Insurance                                                    signed)
Result:                   Former Spouse Prevailed                 Assets in Dispute:        Savings and stock investment
Held:                     Plan Documents (Beneficiary                                       plan for salaried employees
                          Designation) Controlled                 Result:                   Constructive trust rejected.
                                                                                            What you cannot do directly
Boggs v Boggs             520 US 833 (1997)                                                 (obtain benefits from plan
Parties:                  Surviving Spouse (2nd                                             administrator) cannot be done
                          Spouse) vs. Sons of First                                         indirectly (obtain benefits once
                          Spouse                                                            paid to designated beneficiary)
Assets in Dispute:        IRA, ESOP, Annuity                      Held:                     Plan Documents (Beneficiary
Result:                   Surviving Spouse prevailed.                                       Designation) Controlled
Held:                     Surviving spouse’s statutory            Unicare Life & Health     35 EBC 2577 (6th Cir 2005)
                          entitlement to qualified joint &
                          survivor annuity has priority over      Parties:                  Spouse vs. Heirs/Children
                          Louisiana community property            Assets in Dispute:        Life insurance benefits
                          laws that conflict with ERISA,
                          frustrate its purpose.                  Result:                   Spouse Prevailed
                                                                  Held:                     Plan Documents (Beneficiary
Egelhoff v Egelhoff       532 US 141 (2001)
                                                                                            Designation) Controlled
Parties:                  Former Spouse vs. Heirs/Children
                                                                     Michigan Courts Favor Divorce Judgments
Assets in Dispute:        Pension
                                                                     under Theory of Waiver versus Preemption
Result:                   Former Spouse Prevailed
                                                                  MacInnes v MacInnes, 260 Mich App 280 (2004)
Held:                     Plan Documents (Beneficiary
                          Deshmation) Controlled
                                                                  Cheryl and Joe MacInnes divorced after a 9-year marriage.
                                                                  Cheryl Rowley died after the divorce and her ex-husband
Central States v Howell 227 F3d 672 (6th Cir 2000)
                                                                  was still listed as her designated beneficiary. Met Life paid
Parties:                  Wife v husband’s children               insurance proceeds to him and decedent’s estate sought to
                                                                  recover it. Ex-husband argued that he was entitled to keep
Assets in Dispute:        Non-group and group life policy
                                                                  the funds because ERISA supersedes the divorce judgment.
Result:                   Non-group benefits paid to              The Court did not view this as a preemption issue (does
                          spouse per domestic relations           it “relate to” an employee benefit plan?) and resolved it
                          order (husband died during              under principles of waiver instead. The Court found that
                          pendency of divorce). Preliminary       when MacInnes stipulated to a provision in the divorce
                          injunction did not comply with          judgment that all rights in any policy of life insurance shall


                                                                                                                 33
October 2007
become payable to the estate of the owner, he knowingly           spouse (Gail) was appointed personal representative of
and voluntarily waived his rights as beneficiary of the life      his estate and sought to enforce the waiver in the divorce
insurance proceeds from his former wife’s insurance policy.       judgment. The Michigan Supreme Court enforced the
                                                                  waiver in the divorce decree, holding that it was not
MacInnes v MacInnes       260 Mich App 280 (2004)                 preempted by ERISA. Here, the plan administrator did
                                                                  distribute the proceeds to the named beneficiary as
Parties:                  Former Spouse vs. Estate
                                                                  required by ERISA to the named beneficiary (step one).
Assets in Dispute:        Life insurance benefits                 Thereafter a claim could then be filed against the named
                                                                  beneficiary alleging that she waived her right to retain
Result:                   Estate Prevailed
                                                                  the proceeds (step two). The second phase involved a
Held:                     Waiver Provisions in Judgment of        simple contractual waiver dispute between two parties.
                          Divorce Controlled                      It is devoid of the any invasion of the requirement of
                                                                  ERISA that the plan administrator distribute the proceeds
    Moore v Moore, 266 Mich App 96 (2005);                        to the named beneficiary and therefore, in the view of
        Iv denied 475 Mich 884 (2006)                             the Michigan Supreme Court, is distinguishable from the
                                                                  U. S. Supreme Court holdings in Egelhoff and Boggs, supra.
Clark Moore named his spouse Hetta as beneficiary of a
life insurance and pension death benefit but then divorced.       Sweebe v Sweebe           474 Mich 151 (2006)
The consent judgment of divorce provided that each
                                                                  Parties:                  Former Spouse vs. Estate
party’s interest in the other party’s life insurance policies
and retirement benefits were terminated by the judgment           Assets in Dispute:        Life insurance
of divorce. He died without changing his beneficiary
                                                                  Result:                   Estate Prevailed
designations. His estate sought to secure the benefits but
learned from the plan administrator that the funds had            Held:                     Waiver Provisions in Judgment of
already been disbursed to the named beneficiary. Hetta                                      Divorce Controlled
Moore (ex-wife) argued ERISA preempts the Michigan Statute
that requires all divorce judgments to contain language                   Is a Resolution of the Conflict Coming?
disposing of each party’s interest in the other’s retirement
and pension plans and that this preemption negates any            McGowan v NJR Service Corp, 423 F3d 241 (3rd Cir.
claimed benefit waiver. Held: The former spouse who in a          2005), cert denied, No. 05-853, 2007 WL 91575 (U.S. Jan
consent judgment of divorce expressly waived her interest         16,2007) involved an employee who elected to retire and
in the life insurance and pension benefits is not entitled to     receive his retirement benefits in the form of an “automatic
retain those benefits, even where she may be the named            surviving spouse option” creating a 50% survivor annuity
beneficiary. The court noted it was not bound by federal          for his wife, Rosemary (second wife). They later divorced
precedent except from the United States Supreme Court.            and Rosemary waived all rights to his pension and signed a
                                                                  form consenting to the election of James’ first wife (Shirley)
Moore v Moore             266 Mich App 96 (2005); Iv              as the replacement beneficiary. The plan benefits manager
                          denied 475 Mich 884 (2006)              did not permit changes to contingent beneficiary election
                                                                  because he was receiving benefit payments. The retiree
Parties:                  Former Spouse vs. Estate
                                                                  again sought to change his beneficiaries after his third
Assets in Dispute:        Life insurance & pension benefits       marriage to Donna and brought suit seeking a declaration
                                                                  directing the plan to recognize Rosemary’s waiver of the
Result:                   Estate Prevailed
                                                                  plan benefits in the divorce and recognize the subsequent
Held:                     Waiver Provisions in Judgment of        nomination of his third wife (Donna) as the new beneficiary.
                          Divorce Controlled                      Held: Plan administrators are not required to look beyond
                                                                  plan documents to determine whether a waiver has
     Sweebe v Sweebe, 474 Mich 151 (2006)                         been effectuated in a private agreement between a plan
                                                                  participant and his named beneficiary. In the 3rd Circuit,
Marilyn and Herbert Sweebe divorced in 1986 and                   these issues are resolved by the plan documents alone.
memorialized in their judgment of divorce an agreement            NOTE: On 3/20/06, the U.S. Supreme Court invited the
to give up all interests either of them had in the other’s life   Solicitor General to file a brief expressing the views of the
insurance contracts. Herbert had a life insurance policy          United States. However, the U.S. Supreme Court denied
provided by his employer; he had designated Marilyn as            certiorari on January 16, 2007.
the beneficiary in 1963 and never changed the beneficiary
after the divorce. When he died in 2001 the insurance plan        Perhaps you will have the case positioned to reach the U.S.
administrator paid the plan proceeds to Marilyn (ex-wife)         Supreme Court and resolve the conflict between federal
because she was the designated beneficiary. His surviving         and state law.


            34
                                                                                                               October 2007
                         Conclusion                                 plan documents and the QDRO requirements set forth in
                                                                    29 USC 1056(d)(3), family law practitioners will decide
Family Law Practitioners may represent persons with                 whether to initiate such actions in federal or state court
interests in ERISA-qualified pension or welfare benefit plans       or remove actions initiated in state court to federal court.
of a former spouse because they remain as the designated            Several factors influence the choice of forum including the
beneficiary of the plan or plans at the time of the participant’s   party you represent, the type and amount of assets in dispute,
demise. Assuming the claim otherwise complies with the              the plan documents and terms of the divorce decree.




                                                                                                                   35
October 2007
                                                      NOtiCe:
                                     FAMILY LAW SECTION
                                      ON THE INTERNET
                                the Family Law section’s website contains information
                                concerning the section’s mission, council information,
                                public policy reports, upcoming events, news, selec-
                                tions from the Michigan Family Law Journal, and an
                                archives. visit us at:
                                      http://www.michbar.org/family
                                then select Family Law from the sections drop-down list.




                 FAMILY LAW POLITICAL ACTION COMMITTEE
in 1997 a voluntary Political Action Committee (PAC) was formed known as the Family Law Political Action
Committee. the PAC advocates for and against legislation that directly affects family law practitioners, and
the PAC lobbyist has contact with, and access to, legislators involved with family law issues. Contributions to
the PAC are one way for you to help influence legislation that directly affects your practice as a family lawyer.
the Family Law PAC is the most important PAC, since it affects the lives of so many people, adults and children
alike. Your assistance and contribution is needed to ensure that this PAC’s voice will continue to be heard
and listened to by the legislators in both the state senate and House of representatives. Please help the PAC
by making a contribution today!
                                      (PLeAse COPY AND Use tHis FOrM)

             TO:	 Neil	M.	Colman	 •	 12900	Hall	Rd.	 •	 Ste.	180	 •	 Sterling	Heights,	MI	48313

                       Attached is my check payable to the Family Law PAC in the amount of:
                 $50                        $100                         $150                       Other



Name and P-number

street Address

City                                                                       state             Zip

telephone                                    Fax                                           e-Mail

                              Please make your check payable to FAMiLY LAW PAC.
                             Please, no corporate checks. Thank you for your assistance!



        36
                                                                                                      October 2007
                                       Family Law Appeals
                               Cheryl A. Fletcher, Esq.
comp@aeprinters.com                Gornbein, Fletcher & Smith, PLLC
                              Experience and Published Results!
                        Founding Member and Past President of
                       Collaborative Practice Institute of Michigan.
                        Lectures extensively and is the author of
                            numerous articles on family law.
                               248-594-3444 Phone
                                 248-594-3222 Fax
                            cfletcher@gfsfamilylaw.com
                               www.gfsfamilylaw.com

                      Case Research, Brief Writing, Oral Argument Outlines

                                                                             37
 October 2007
JUST RELEASED

GUARDIAN AD LITEM HANDBOOK FOR DIVORCE PRACTICE (September 2006)
    edited by Connie R. Thacker

Table of Contents
Preface                                                               Honorable Lisa Sullivan
Introduction                                                   Honorable Kathleen A. Feeney
Statutes, Standards, Guidelines and Immunity                      Donna E. Mobilia, Attorney
Role of the Guardian                                        Marie E. Kessler, Attorney/Referee
The Appointment                                                     Charlie L. Clapp, Attorney
                                                              and Donna E. Mobilia, Attorney
The GAL Investigation                                                William Lansat, Attorney
                                                            and Frank E. Vandervort, Attorney
The Child:
      a.     Best Interest                                          Debra J. Colletti, Attorney
      b.     Questions for the Minor Children                      Richard S. Victor, Attorney
      c.     Michigan Protocol                          Edited by Connie R. Thacker, Attorney
      d.     ABA Standards                            Provided by Connie R. Thacker, Attorney
Common Evidentiary Issues                                           Pamela J. Farrer, Attorney
Choosing the Mental Health Experts and HIPAA                     Honorable Patricia D. Gardner
                                                                and Paul W. Simon, Law Clerk
Domestic Violence and the GAL                                     Connie R. Thacker, Attorney
Fees for the GAL                                                       John Forczak, Attorney
Removal of the GAL                                                Connie R. Thacker, Attorney
Resources

Pricing:      Handbook              $ 75.00
              6% sales tax          $ 4.50
              Shipping/Handling     $ 10.00
              Total                 $ 89.50


To order send check payable to State Bar of Michigan to:

Connie R. Thacker
RHOADES MCKEE
600 Waters Building
161 Ottawa Avenue NW
Grand Rapids, Michigan 49503
Telephone: (616) 235-3500
Facsimile: (616) 233-5269




       38
                                                                                   October 2007
      CHILD SUPPORT FORMULA & ALIMONY GUIDELINE COMPUTER SOFTWARE
                               2007 VERSIONS
Springfield Publications has available the 2007 Child Support Prognosticator (Version 21) through arrangement with the
Family Law Section of the State Bar of Michigan. Use of the program allows you to easily calculate appropriate child
support considering all formula factors, using the current Michigan Child Support Formula.

Also available is the 2007 Alimony Prognosticator (Version 17). The Alimony Prognosticator calculates spousal support
recommendations using the version of the alimony guidelines detailed in the August/September 1990 Michigan Family Law
Journal, updated for cost of living increases since 1990. Both programs have been updated to include 2007 changes to
federal and state income tax rates.
The Prognosticator programs come with a non-exclusive five-user license for use in Windows 98 or newer compatible
computers. (Additional users can be added for a nominal fee). Each disk is individually prepared, and is customized to
identify your firm or office. Customer support is provided on an "as available" basis from the developer by telephone and e-
mail for installation or operation assistance. If a disk is defective or damaged in shipping, it may be returned to Springfield
Publications for replacement. There are no expressed or implied warranties.
The Prognosticator programs are available CD-ROM (or 3.5”HD upon request). The license fee for each program is $53.00
(which includes $3 sales tax). Shipping for one or both programs is $3.00. The programs are updated annually by
Springfield Publications for published changes in the tax rates and in the Michigan Child Support Formula & Alimony
(Spousal Support) Guidelines. Springfield Publications attempts to notify users of the availability of updates of the
Prognosticator programs, but reserves the right to, at any time and without notice, terminate distribution of the programs.

Note: The Alimony Prognosticator is distributed in cooperation with the State Bar Family Law Section, but is not
specifically endorsed by the State Bar Family Law Section.

                                      (COPY THIS FORM FOR ORDERING)
  ---------------------------------------------------------------------------------------------------------------------


                                   2007 PROGNOSTICATOR ORDER FORM

PLEASE SEND A COPY OF THE PROGRAMS I HAVE INDICATED BELOW. I UNDERSTAND
AND AGREE TO THE TERMS AND RESTRICTIONS STATED ABOVE.
       COST: $56 ($53 IF TAX EXEMPT) FOR ONE PROGRAM; $109 FOR BOTH ($103 IF TAX EXEMPT)

      [ ] Child Support Prognosticator            [ ] Alimony Prognosticator            [ ] Both Programs

FIRM NAME: ___________________________________________________________________
CONTACT PERSON: _____________________________________________________________
ADDRESS: _____________________________________________________________________
CITY, STATE, ZIP: ______________________________________________________________
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e-mail: springfield@chartermi.net                                                          website: www.sppub.com

                                                                                                                     39
October 2007
                  GUIDELINES FOR REQUESTING APPEARANCE OF
    THE FAMILY LAW SECTION OF THE STATE BAR OF MICHIGAN AS AMICUS CURIAE
1. requests from litigants should be directed to the Amicus Committee, and may be submitted to any Council member.
2. the amicus request must clearly indicate whether leave to appeal has been requested and/or granted. if leave
   has been requested but not yet granted, the requesting attorney must indicate whether an amicus is requested
   to support granting leave, or on the substantive issues. Absent exceptional circumstances, no amicus request
   will be considered until the Court has granted leave to appeal.
3. Amicus requests must be in writing, accompanied by five copies of each of the following:
   a. A short and concise memorandum setting out the legal issue(s) addressed by the appeal;
   b. Previously submitted briefs (from both parties) and opinions in the case, together with the order granting
      leave to appeal, if appropriate, and a list of the filing deadlines, including the deadlines for the amicus curiae
      brief;
   c. A list of significant cases that an amicus brief should consider, together with copies of any cases outside Michi-
      gan;
   d. A brief statement explaining why the Family Law Council should grant the request. this statement should
      specifically reference the Case selection Criteria and the impact of the case on the domestic relations bar as
      a whole. the statement should also address the potential expenditure of Council time and resources.
   e. For amicus requests prior to the Court granting leave to appeal, a statement setting out “exceptional circum-
      stances” to justify Family Law Council involvement.
   f. A proof of service indicating that all materials submitted to the Amicus Committee have been concurrently
      served on all other counsel in the matter.
4. the requesting party may be required to meet with the Amicus Committee to discuss Family Law Council involve-
   ment. in this event, the Amicus Committee shall notify the opposing attorney of the date, time and location of
   the meeting and invite them to be present and participate in the meeting. A meeting of the Amicus Committee
   will be convened for this purpose at which the requesting party should be prepared to discuss the importance
   of the issue(s) presented; how Council support will benefit the party, the bench and the bar at the present state
   of litigation; the likelihood of the case eventually progressing to the supreme Court (for cases on which the
   supreme Court has not yet granted leave); and practical considerations, such as the level of commitment of the
   requesting attorney and his/her client to pursuing the case.
5. the requesting party shall furnish any additional material or information required by the Amicus Committee.

           CASE SELECTION CRITERIA FOR REQUESTS FOR APPEARANCE OF
    THE FAMILY LAW SECTION OF THE STATE BAR OF MICHIGAN AS AMICUS CURIAE
in passing on a request for appearance as Amicus Curiae, the Amicus Committee of the Family Law section shall
consider the following criteria:
 1. Whether the legal issue involved is of substantial interest to the domestic relations bar.
 2. Whether the legal issue involves a conflict in case law, or a case of first impression, or a novel or previously
    unresolved question, or whether there is a need for clarification of a legal issue, the disposition of which is likely
    to have broad-range effects beyond the particular case.
 3. Whether the legal issue involved affects fundamental rights of individuals or involves a constitutional question.
 4. Whether the case presents an opportunity to ameliorate or reverse prior judicial decisions or legislative enact-
    ments which adversely impact on domestic relations law.
 5. Whether the issue or case impacts on the practice of family law from the view of practitioners.
 6. Whether the briefs of the parties before the court, or briefs of other amicus curiae, adequately address the legal
    issues presented.
 7. Whether the facts presented are strong enough, and the record sufficiently developed, to support the position
    to be asserted.
 8. Whether the position to be asserted is appropriate in view of the recent pronouncements of the appellate courts
    and consistent with the Family Law Council’s principles and philosophy.
 9. Whether there exists sufficient time to request amicus status and properly prepare a brief.
10. Whether sufficient resources are available, given the Council’s amicus caseload, to grant the particular
    request.
11. Whether the Court has requested the submission of briefs.
12. Whether the case should be referred to another section of the state Bar.

           40
                                                                                                        October 2007
   QDRO/EDRO/FEDERal REtiREmEnt ORDER PREPaRatiOn
           — By insured, BV rated attorney with over 20 years’ experience —
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        COMPARE: ** $400 or less most orders flat fee
                 ** Minimum 25% discount on same case
                    multiple order preparation
                 ** $250 per review of others’ orders
                 ** Fee includes preparation, entry with the Court,
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                 ** Prompt response
                           For more information please contact:
                          Attorney Mark Cherniak
                   laW OFFiCE OF maRK S. CHERniaK, P.C.
                 10242 Joseph Campau • Hamtramck, MI 48212
                     (313) 871-0742 • (313) 873-1750 (fax)
         Mark@QDRO-Services.com (e-mail) • visit QDRO-Services.com (website)




                                                                              41
October 2007
    notice: Special issues of the MICHIGAN FAMILY LAW JOURNAL are for Sale.




 $5.00 per single copy     $5.00 per single copy     $6.00 per single copy   $10.00 per single copy                   $10.00 per single copy




 $10.00 per single copy    $10.00 per single copy   $12.00 per single copy   $12.00 per single copy                   $12.00 per single copy




 $12.00 per single copy    $12.00 per single copy   $12.00 per single copy   $12.00 per single copy                   $12.00 per single copy




                                                                              Pricing: Single issue prices are as noted below
                                                                              issues.

                                                                              in lotS of 25 or more – Price Per coPY iS:

                                                                              •	 Adjustment to Divorce, Preparation for
                                                                                 Marriage, Visitation .................................. $4.00

                                                                              •	 Adoption, Domestic Violence,
                                                                                 Child Custody, Alimony ........................... $7.00

                                                                              •	 Primary Colors of Divorce, The One-Parent
                                                                                 Family, 2nd Marriages, Expert Witnesses,
 $12.00 per single copy    $12.00 per single copy   $12.00 per single copy       Dividing Marital Assets, Alternative Dispute
                                                                                 Resolution, Children’s Rights, The Newly
mAKe cHecK PAYABle to: State Bar of michigan                                     Divorced Person, Quick Reference Guide for
                                                                                 Family Law Lawyers, Meet Your Family Law
mAil to:     A&e Printers and mailers                                            Lawyer ....................................................... $9.00
	            3303	North	East	Street	•	Lansing,	MI	 48906
   ICLE’s                                JOIN 400+ Michigan family lawyers and judges—REGISTER TODAY!
                                                                                                                   www.icle.org/family
  6th A N N U A L                                                                                                      877-229-4350

 Family Law INSTITUTE
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6th A N N U A L

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  e best overall seminar of the year! A must for all family law practitioners!
                         - G P. C, Law Office of Gerald P. Cavellier, PLLC    Features:
                                                                                        • 2 justices of the Michigan Supreme
NOVEMBER 1-2, 2007                                                                        Court
THE INN AT ST. JOHN’S, PLYMOUTH                                                         • 5 judges of the Michigan Court of
                                                                                          Appeals
                                                                                        • 4 trial court judges
Michigan’s Must-Attend Family Law Event                                                 • 2 finance and accounting experts
                                                                                        • 2 Ph.D. mental health professionals
ICLE’s dynamic Family Law Institute features Michigan’s most noted                      • Take home a binder of outstanding
                                                                                          course materials and forms you can use
family lawyers, judges, psychologists, communication experts, and financial                all year
professionals. Every facet of your practice is represented with in-depth analysis       • Build relations with family court
from experts who handle the issues every day. With unbeatable networking,                 judges outside a contested matter
                                                                                        • Lunch sponsored by Rhoades McKee PC
programming for all levels, and expanded advanced content, it’s clear why
                                                                                        • Networking reception sponsored by
Michigan practitioners call it the must-attend family law event.                          Stout Risius Ross, Inc.

                                                                                        $295 GENERAL
                                                                                        $260 COSPONSOR SECTION MEMBER
                                                                                        $245 NEW LAWYER (0-3 YRS IN PRACTICE P67100+)
                                                                                        $245 ICLE PARTNERS
                                                                                        FREE JUDGES/REFEREES/FOC*
                                                                                        *Current sitting Family, Probate, and Circuit Court Judges
                                                                                        attend free. Referees and Friends of the Court attend free,
                                                                                        but are limited to 30 with no more than 5 from any one
                                                                                        office. First-come, first-served basis.
    The Michigan Family Law Journal        subscriptions. A service charge of $2         before the 10th of each month directly
is available to persons who are not        per copy for postage and handling,            to Norman N. Robbins, Editor, 5543
members of the State Bar of Michigan       in addition to the regular subscription       Tadworth Place, West Bloomfield, MI
Family Law Section. The subscription       price, is charged for individual copies       48322.
rate for non-members is $30 annually       of regular issues of the Journal. This
plus a $3 annual service and pro-          does not include special sections. All             Articles, letters and other miscel-
cessing fee charged by the State Bar of    subscription orders should be mailed          laneous material published in the
Michigan, for a total of $33. That check   to: State Bar of Michigan, Michael            Family Law Journal do not necessarily
should be made payable to “State Bar       Franck Building, 306 Townsend Street,         reflect the opinions or position of the
of Michigan.” The subscription year        Lansing, MI 48933-2083.                       State Bar of Michigan, the Family Law
begins on October 1 of each year.                                                        Section or any government body and
There are ten issues published each            All correspondence of a substantive       their publication does not constitute
year, plus periodic special sections.      nature, i.e., notices, articles, letters to   an endorsement of opinions or legal
Advance payment is required for all        the editor, etc. should be mailed on or       conclusions which may be expressed.
  U.S. poStage paiD

   perMit no. 191
     LanSing, Mi
     nonprofit
MiCHigan faMiLY LaW JoUrnaL




LanSing, MiCHigan 48933-2083
MiCHaeL franCK BUiLDing
State Bar of MiCHigan

306 toWnSenD Street
faMiLY LaW SeCtion

				
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