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February 2011 Archives

Help! My House is Underwater and I Can't Swim!

Given the downward spiral of real estate values during the past 5-8 years, more couples divorcing today are faced with the very real problem of what to do with a house that is worth less than what is owed on it. There are no easy answers, but there is help available. On July 5, 2009, Public Act No. 29 was enacted to help homeowners facing financial difficulties keep their homes. The Loan modification laws found at MCL 600.3205a require banks to consider modifying a mortgage prior to initiating the foreclosure process. Another good source for help with credit problems in general is FindAid.org.

Toddlers and Technology: Proposed Parenting Plan Must be Considered on Its Own Merits in Change of Domicile Motion

The Court of Appeals recently held that a trial court's myopic focus on a toddler's purported ability to use technology in deciding a change of domicile motion was error. In McKimmy v Melling, decided on February 10, 2011 (for publication), a mother of two young boys sought the court's permission to move to North Dakota to live with her fiance. The mother's proposed parenting plan included the father having the boys over the summer, alternate holidays and Skype communication over the Internet. The trial court acknowledged that the proposed plan would give the father more time with the boys than the original parenting schedule, but was troubled by the father's inability to have regular weekly, "in person" contact with the boys under the new plan. Finding that the old plan provided "more meaningful" interaction between the boys and their father, it denied the motion. The Court of Appeals vacated the order, ruling that the trial court wrongly compared the new plan to the original plan rather than simply analyzing whether the proposed plan allowed the father to maintain a parental relationship with the children under MCL 722.31(4)(c). The relevant query is not which plan is better, but whether the new plan has the capacity to adequately preserve and foster the parental relationship between the children and the left behind parent.

Why Do I have to Sign This?

During a divorce proceeding, your attorney will ask you to review and sign many different documents, beginning with your divorce complaint (if he or she doesn't ask you to do this, find another attorney). You may be wondering why you have to do this, since, after all, isn't that why you hired the attorney in the first place? While your attorney will be preparing the legal documents, you, as the actual party involved in litigation, are still responsible for making sure that the representations made in those documents are true and accurate. The Michigan court rules require every pleading, motion, affidavit and "other paper" to be signed by a party or her attorney. Divorce complaints with minor children must be signed by the party and his attorney. Certain motions such as those requesting entry of a temporary order (for spousal support, custody, or child support, for example) must be verified (signed under oath) by a party, even if he or she is represented by counsel. Your attorney should be involving you in the legal process and asking you to review pleadings before they are filed. I personally prefer to have clients sign most court documents unless strictly "legal" (like a motion to compel discovery). This ensures that the client has reviewed the document, confirmed its accuracy, and approved of its filing with the court. Why should you sign your pleadings, even if it's not technically required by a court rule? Because it's important.

Don't Stop Pedaling

My husband recently bought us a tandem bike to ride -- a sleek, black Cannondale, to be exact. We used to mountain bike together but I no longer have the physical stamina to do so and he was tired of riding alone. So we thought we'd try the tandem. The "test drive" consisted of soft pedaling around a subdivision. It was warm and sunny and the balmy weather must have gone to my head because I failed to notice (as I later would) that the seat was too low, the handlebars too high and the bike was just damn uncomfortable. But on that day, feeling giddy from the sunshine and the idea of having something fun to do with my husband, I said "why not?" when my husband asked if we should buy it.

Don't Co-Mingle What you had When Single

In Zuidgeest v Zuidgeest, an unpublished case decided by the Court of Appeals on February 1, 2011, the higher court reversed the trial court's property award to the wife. The husband owned a house and business interests prior to marriage. Wife moved in with husband and paid half the utilities and expenses and then they married a few years later. Husband subsequently sold the house and deposited the proceeds of the sale into a joint bank account. These monies were later used to purchase the marital home. Husband also sold his business interests and deposited those monies into the joint account. The trial court determined that the proceeds of the sale from the first house and the business were husband's sole and separate property. It then awarded husband the marital home, and awarded wife a lump sum of money to compensate for her marital interest in the house. The trial court deducted the value of the net proceeds from the sale of husband's separate property. The COA reversed, finding that while these assets were separate, they nevertheless lost their distinction as separate property when husband deposited the monies into a joint bank account, co-mingling them with marital assets. The Court reversed the property award and remanded to the trial court with instructions to include the value of the sale of the prior home and business when dividing the marital estate. The lesson here: don't co-mingle what you had when single.

Involved Father Gets "Credit" in Determination of Established Custodial Environment

In Landon v Sheldon, a paternity case decided by the Court of Appeals on December 21, 2010, the trial court found that an established custodial environment existed solely with defendant mother. The COA disagreed and reversed the trial court's award of sole custody to mom.

Don't Try this at Home

Infidelity stings regardless of where the dirty deed is done, but when a spouse brings his paramour into the marriage bed, it is an affront that can rankle the sensibilities of even the most cynical judges.

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