Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: info@clarkstonlegal.com

Thursday, June 28, 2012

5-Things to Know About Your Marital Home in a Divorce


This is the first of two guest blog posts by Natalie DeLeo on the subject of your marital home in the divorce context.  

Ms. DeLeo has been serving Michigan's homeowner's for over 25-years.  Her background in real estate sales, relocation, and new construction set the stage for a clear understanding of potential pit-falls in this rough economy.  For the past 22-years, Ms. DeLeo has been with Mortgage Resource Plus in Birmingham, MI.  She is a mortgage consultant and the marketing director for the firm.

This is what Ms. DeLeo has to say about your martial home...

1. The Martial Home
When a martial home is involved in a divorce, you should think, “What is my objective for this crucial asset?” Will it be sold, refinanced, or retained at this point? 

Keep in mind when both people are on the mortgage, the only way someone is removed from this liability is to either refinance the mortgage, or sell the house and pay it off.

2. Can I qualify for my own mortgage if I am still on the original note?
You should be able to qualify as long as the payments are current through the completion of your divorce, and you have been taken off the title to the marital home; then a lender does not have to qualify you with the liability on the marital home.

Very Important note: Keep in mind that since you are not on title but remain on the mortgage, missed payments will damage your credit. 

3. How little can I put down on a home, if I’ve never owned one by myself?
You can put as little as 3.5% down on an FHA mortgage (only on a primary home) or there are some programs as little as 3-5% on a conventional mortgage.  Meet with a mortgage professional to go over minimum down payment programs, closing costs, and your pre-paid items like property taxes and homeowners insurance.

The seller may agree to cover some of these costs for you. It is important to keep your home purchase within your post-divorce means, especially if you are not use to making the house payment on your own.

4. After my divorce, do I have sufficient credit to purchase my own home?
Review your credit report shortly after your divorce is final. It takes about a month to get everything reported correctly. The key word is “correctly.”

Accounts that were ordered to be paid in full at the final divorce can be reviewed to make sure everything is accurate on the credit report. Warning: if you close an account with a balance during your divorce, so that neither party can use it, your credit scores will drop until the account is paid off.  You should have three open trade lines on your credit report to qualify for a mortgage.  There are exceptions depending on what you are trying to achieve.

5. How is the marital home valued and what if it is less than the amount owed on the mortgage?
An independent appraiser comes out to appraise the marital home.  If three appraisers come out, they may give you 3 different values. With the assistance of your attorney, there can be an agreement in how this value is determined.  Two common methods used in divorce are to: a) get a single appraisal and agree to accept the value; or b) each of you obtain you own appraisal and then have the two averaged. 

The key is to watch your finances closely before and during the divorce process.  Obtain a qualified attorney to assist you in addressing the crucial issue of your marital home.

Take heart; there are viable options.

        
Call Natalie DeLeo, Mortgage Consultant-on “The Cauley Team” NMLS LO# 138228
Mortgage Resource Plus 111 S. Old Woodward Suite 205 Birmingham MI 48009
Office: 248-642-4600 Ext. 110. or Email Natalie@mrploan.com

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Tuesday, June 26, 2012

Military Divorce: Part II

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

Jurisdiction

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

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

Retirement Pay/Benefits

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

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

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

Garnishments and Child Support

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

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

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

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

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

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

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


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Thursday, June 14, 2012

Michigan's Paternity Act Revoked to Provide Rights to Putative [Biological] Fathers

Daniel Quinn
This story flew under the radar for most media, and even some attorneys.  That is, unless you knew Daniel Quinn's sad story out of the Livingston County Family Court.

Yesterday, Governor Rick Snyder signed Senate Bill 557 and Senate Bill 558 into law, revoking our 1956 Paternity Act to allow claims to be filed by a putative [biological] fathers, even when the mother is a married woman; married, that is, to someone other than the putative father.

The original paternity law, that presumes that a married woman's husband is the father of any child born during a marriage, was considered by many family law practitioners to be a throwback from a lost society; a law [poorly] designed to protect the sanctity of the marriage institution.

The new law, introduced by Senator Steven Bieda of Livonia, was supported by the 2,100 members of the State Bar of Michigan's Family Law Section, among them, yours truly.

Five and a half decades after the original paternity act was passed, the real world came crashing up against that law.  Little Maeleigh is now nearly 7-years old and has not been allowed to see her father in over 4-years due to the now-repealed paternity act.

At the time of her birth in 2005, Maeleigh's mother was married, to a convicted drug-dealer.  She was separated from her husband, however, and conducted a long-standing and open affair with Daniel Quinn, Maeleigh's biological father.  For nearly three years, Quinn was an involved father in his daughter's life, with the trio living as a family unit.

All that changed when Maeleigh's mother reconciled with her felon husband, removing Maeleigh from Quinn's custody, and moved out of Michigan.  Quinn's claims of paternity, filed in the Livingston County Circuit Court, were rejected on grounds he lacked legal standing to bring an action because Maeleigh's mother was married at the time of her birth and the husband was irrebutably presumed to be the father.

Quinn is now expected to file a paternity claim under the new law.  For his sake, and the sake of his daughter, he may be able to take advantage of his prior filings to come within the scope of the new law.

The new paternity act, however, lays out very specific limited circumstances under which a family court judge can declare a child to be born out of wedlock when the mother is married, and to make paternity findings.  The putative father [referred to as an "alleged father" in the act] cannot have knowledge of the mother's married status.  There is a three year time limit for the putative father to bring the action to the family court.  There are other limitations set forth in the act.

The new paternity act is hailed as "progress" among my colleagues who have seen first-hand, the heart break that is caused by a law that slams the door in the face of a biological father.  Senator Bieda's public rationale for sponsoring the new law is that the old law was passed in a simpler time, before DNA paternity testing.

The unspoken inference, however, is that we now live in a relatively more permissive and morally lax era.  Don't go thinking that a married woman's children are the issue of her husband.  In our post-modern era, you just cannot operate under that assumption.

And what does that say about us...?

www.clarkstonlegal.com
info@clarkstonlegal.com



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Monday, June 11, 2012

A Tale of Two Designer Drugs

There are a pair of designer drugs ripping through our youth and thus our very homes.  There are two groups of abusers that bring vastly different mindsets to the consumption of these drugs.

Spice, K2, synthetic marijuana; this drug has been grabbing all the headlines lately, particularly here in Oakland County.  Also known by a variety of street names [Blaze, Dream, Aroma, Eclipse, and Red Dawn] this still-legal substance is ubiquitous; sold over-the-counter at gas stations and party stores.

What is spice?  Mostly natural organics [vanilla, lotus and blue rose] mixed with a laboratory compound designed to duplicate THC.  The drug is particularly dangerous to our youth because the primary ingredient binds tightly with the cannabis receptors in their still developing brains.

There is no question that kids use spice because they crave the high.

Tied to two springtime suicides, and through association with Oakland County's patricide du jour, municipalities are racing to outlaw this substance of many names.

Quickly drafted bills are now instantly pending in Lansing.  Last week, in a largely symbolic gesture, the Oakland County Board of Commissions passed a resolution supporting the criminalization of synthetic marijuana.  All the while, party store owners race to unload their inventory onto the suburban streets.  

More subtly, another designer drug has been sneaking into our schools.  Many young academic overachievers are increasing their focus, and attempting to gain an edge on exams by ingesting a variety of amphetamines and other stimulants designed to alleviate the effects of attention deficit disorder.  Adderall, Ritalin, and Focalin, all used to treat the disorder, are among the most addictive substances with legitimate medical uses.

Not long ago these drugs were mostly ingested by college students pulling all-nighters trying to prepare for multiple exams.  Now, they are beginning to trickle down to high school honor students cramming for multiple AP finals.  At least so reported the Sunday NYT; above-the-fold, at that.

[My college-aged daughter, now a Sophomore at the Ohio State University, shared with me that many of her fellow-students took stimulants when preparing for, and during, their final exams.]

Unlike spice, the ADHD drugs are not ingested for the high but rather, for their stimulating effect on the brain; for creating what the NYT article described as, "a laser focus, instant recall, and the ability to crush any test in [the user's] path."  Wow, sounds great!

But, just as in the case of spice, it is an addictive crutch; a false-promise; a potential launchpad for prescription pain pill abuse.  At some point, these students will have to produce, to perform, without their crutch.  And then what...

So while the motivations may be different, the fact remains that drug abuse is drug abuse.  We must teach our children to rely on themselves; to avoid pills and look within.  Whether hatched from boredom or forged from the will to succeed, it is that craving for a magic elixir, for a little something extra, that once again permeates our youthful culture.

www.clarkstonlegal.com
info@clarkstonlegal.com



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Thursday, June 7, 2012

Oakland Circuit's Spousal Computer Privacy Case Rejected by Supreme Court

Leon Walker with his former
spouse in happier times
There is an interesting privacy law criminal case percolating through the appeals courts that originated here in Oakland County.  The case involves the alleged hacking access by a husband of his former wife's computer.

Last Friday, the Michigan Supreme Court denied Leon Walker's application for leave to further appeal from a Michigan Court of Appeals order that similarly rejected his effort to quash the criminal information filed in his case.


On appeal, Walker's lawyers have asserted that the legislature did not intend to criminalize the domestic relations nature of his conduct.  Also, although Walker did not challenge the constitutionality of the statute, he simply asserted that the evidence adduced by the prosecutor at the preliminary examination did not comport with the proscribed conduct set forth in the statute.

The case now goes back down to Oakland Circuit Judge Martha Anderson for further proceedings and trial.

Back in 2009, Walker suspected his wife was having an affair.  Employed as a computer technician for Oakland County, he had expertise on how to access computers.  Allegedly, he hacked into a computer that the prosecutor alleges had been gifted to his wife, discovering evidence of the affair.

This blog covered the case in an earlier post when the matter seemed to be heading for trial.

In speaking with Mr. Walker yesterday [he contacted our law firm], he said he is looking forward to his trial when all the facts will come out before a jury.  Among those facts, he says the laptop computer at issue in the case was premarital and that he never gifted it to his former wife.

Walker also claims that the Oakland County Sheriff, or their computer expert, may be responsible for evidence spoilation; they claim to have lost or misplaced his laptop.

Although the Supreme Court declined to decide the case at this time, some of the Justices hinted at their concern that the language in the statute is very broad and could be used to criminalize otherwise legal conduct.

Justice Marilyn Kelly, who voted to hear the appeal, stated her concern in the High Court's order:
The factual basis for one of the charges against defendant is that he allegedly accessed his wife’s e-mail account without her permission.   This may be the first time in the 33 years since MCL 752.795 became law and the 16 years since it was amended to its present form that the statute has been used as the basis for criminal charges for the behavior in question. 
Justice Kelly goes on to note that the Michigan legislature submitted a bill to the House Judiciary Committee last year seeking to amend the unauthorized computer access statute.  This bill would carve-out an express exception in the statute for spouses, provided that certain conditions were satisfied.

We will be keeping an eye on this hot case.

www.clarkstonlegal.com

info@clarkstonlegal.com



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Tuesday, June 5, 2012

Michigan Supreme Court Rules on Medical Marijuana

This is a tale of one statute and two defendants.  One defendant will be sporting a conviction for marijuana possession, while the other defendant's charges are now dismissed.

This week, the Michigan Supreme Court decided an important case involving Michigan's Medical Marijuana Act.  The case, People v Kolanek, consolidated the separate convictions of Alexander Kolanek, and Larry King; the former an Oakland County case, the latter from Shiawassee County.

As detailed by this blog over the past three years, the Michigan Medical Marijuana Act has had a brief and tortured existence.  Prosecutors, law enforcement and even judges have taken a restrictive view of the use and immunities provided by the Act.  With much success, until now, they have managed to limit the use, or even the assertion of the affirmative defense set forth in section 8 of the Act.

Not surprisingly, several cases have percolated up through Michigan Court of Appeals.  Two of these cases culminated in the High Court's Kolanek decision.

In the King portion of the decision, Larry King grew six marijuana plants in an enclosed locked dog kennel.  King had a valid medical marijuana registration card.

He moved to dismiss the case against him at both the district and circuit courts; the latter agreed that he was entitled to assert the affirmative defense under the Act and dismissed the case.  The Court of Appeals reversed the dismissal and remanded the matter back to the trial court.

In Kolanek, the defendant was arrested with a half dozen joints on his person.  A week after his arrest, he obtained a statement from his physician that he would receive a palliative benefit from the use of marijuana; Mr. Kolanek apparently suffered from Lyme disease.

Interestingly, the circuit court in this case held that, even though Mr. Kolanek did not obtain his physician's statement until after his arrest, the affirmative defense in the Act was nevertheless still available to him on the basis that he did at least secure a statement from the treating physician.

Kolanek's case also moved through the Court of Appeals, which reversed the circuit court, holding that to avail oneself of the affirmative defense of the MMA, a person must secure a physician's statement prior to one's arrest for marijuana possession.  Makes sense, don't you think...

The High Court reversed the Court of Appeals in King, holding that the MMA sets forth two separate defenses: one is the affirmative defense while the other is a broader immunity to prosecution.  A defendant charged with possession may assert the affirmative defense, even if that defendant has not yet obtained a medical marijuana registration card.  In order to secure a complete immunity from prosecution, however, an accused must have been issued said registration card and otherwise be in compliance with all the requirements of section 4 of the MMA.

The decision is also notable in that it affirmed the intermediate appellate court's decision in Kolanek to the extent that a defendant must have secured a physician's statement prior to asserting the affirmative defense provided for in the MMA.

The local blogosphere has hailed the Kolanek Court as a victory for medical marijuana users.  The decision will be cited in support of the following tenets within the medical marijuana jurisprudence:
  • The MMA provides for two separate and distinct protections from marijuana prosecution: an affirmative defense available to assert to a jury for accused persons that have received a physician's statement that marijuana is therapeutic treatment of a chronic condition and a broader immunity from prosecution for those issued a registration card; 
  • The decision affirms the MMA's definition of the legal, albeit limited use of marijuana; 
  • The immunity set forth in section 4 of the MMA is broadly construed; 
  • Interpretations of the MMA must give effect to the intent of the electorate through the passage of the medical marijuana initiative.
This may not be the end of the medical marijuana cases.  The issues of cash pot transactions and inter-patient transfers are winding through the court system.

For now, however, at least defense attorneys can get down to the business of asserting the affirmative defense on behalf of their clients, as provided by the express language of the MMA, and not have this tool removed from the shed by over-zealous prosecutors and wrong-headed jurists.

Folks, as always, the best way to get a marijuana possession charge dismissed is to carefully comply with the requirements of the MMA, and obtain your registration card before you purchase, grow, or possess marijuana.  After your registration card has been issued by the State of Michigan, be sure to stay within the strict limits of the Act.

Good luck out there.

www.clarkstonlegal.com

info@clarkstonlegal.com



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Monday, June 4, 2012

Oakland County Business Court

Recently, the Oakland County Circuit Court announced the creation of a business court similar to those implemented by Kent and Macomb Counties over the past year.  The business court here in Oakland County has been "operational" since April 1, 2012, and is slated to continue as a pilot program through 2014.

The business court's "pilot" status was created by an administrative order issuing from the Oakland County Circuit Court.  The business court is designed to study the effectiveness of implementing a specialized case management system to handle specified business-related litigation.

Judges sitting on the Oakland Circuit's court of general jurisdiction (i.e. civil-criminal dockets) will all receive cases on the business court docket.  To be assigned to the business court, a case must involved alleged damages of $500,000.

There are many disputes that will be excluded from the business court.  These will include consumer claims against businesses, personal injury and wrongful death cases, medical and legal malpractice law suits, and commercial landlord tenant cases, among a handful of other types of disputes.

So what's going to be different in the business court?  Parties, for example, will be required to make various pre-trial disclosures early in the case [i.e. within 42-days of the initial pleadings]; a joint pre-trial report will be submitted to the business court; an initial conference will be scheduled within 21-days after the pre-trial report is submitted; and the judge will issue a final scheduling order after reviewing the pre-trial report.

The idea behind this modified procedure is to identify and hone the issues and to schedule the court's resources in accord with the specific issues to be presented in the case.

Given the budgetary restraints imposed on the circuit court in the past few years, cutting millions from the budget, the Oakland County business court design had to be cost effective.  This is why there will be no specially appointed judge assigned to a business docket.

Essentially, this specialized court will have to run within the confines of the existing circuit court.

www.clarkstonlegal.com

info@clarkstonlegal.com

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Saturday, June 2, 2012

Military Divorce: Part 1


This post is the first in a three-part series addressing divorce in the context where one or both spouses are in the military.  With so many returning servicemembers, our hope is to provide some guidance for those who find that their pre-deployment marriage is no longer tenable.

Divorce is a painful enough when it’s relatively straightforward—a couple living in the same state, no children, pre-nuptial agreements, etc. However, when one of the divorcing spouses is a member of the armed services, a series of other complications exist. 

Laws, codes and manuals all contain regulations intended to protect both service members and their soon-to-be former spouses. Generally, the various branches of the armed services view divorce as a civil matter best left for state family courts to sort out. One exception, where the armed services can become directly involved (addressed in a later post), involves adultery.

What Law Governs?

First things first.  What law do we need to look at when diving into divorce among military members? For the most part, the laws of the state court where the divorce is occurring govern divorces involving military spouses. However, there are two federal statutes that anyone facing the prospect of a military divorce should be aware of.

The first law is the Uniformed Services Former Spouses Protection Act (USFSPA). Passed in 1982, the law serves the exact function its title suggests—protecting ex-spouses by ensuring they don’t lose entitlement to benefits gained from having been married to a military spouse. 

In particular, the law allows state courts to divide military pensions as marital property. This does not mean that an ex-spouse will automatically receive a portion of her service member husband’s (or visa versa) benefits. However, it does give the courts the option to award the ex-spouse a portion of the benefits if the laws of the state and the interests of justice allow it. There are certain limitations to the amount of benefits an ex-spouse will receive, but that will be discussed later.

Another law of import is the Servicemember’s Civil Relief Act. One of the main purposes of this law is to suspend court proceedings that would “adversely affect the civil rights of service members during their military service.” In other words, the law protects those in the military from the proverbial rock and a hard place that can occur when military service conflicts with pressing civil obligations, in this case, divorce proceedings. Articles 522 and 524 are particularly pertinent.

Section 522 allows any active or recently released (active service must have ended within the previous 90 days) service member to ask for a stay of any civil proceedings. The service member will have to explain how “current military duty requirements materially affect the service member’s ability to appear and stat[e] a date when the service member will be available to appear.” Section 524 allows the court, either on its own or at the behest of a service member, to stay a judgment or vacate any court order (such as a garnishment) if it can be shown that the member’s active military service prevented him or her from complying with the original judgment or order.

There are a few other important documents that require mention in any discussion of military divorce procedure. The Uniform Code of Military Justice gives military tribunals jurisdiction over all armed service members. While it generally does not cover divorce, there is one provision that is often used to prosecute adultery, which we will tackle later. The Manual for Courts-Martial is an executive order that provides administrative rules to enforce the UCMJ and also has a section directly addressing adultery. 

Over the next two weeks, the Law Blogger will post the rest of this series for our readers affected by, or interested in the military divorce.






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