This post was primarily authored by Austin Probst of the Clarkston Legal law firm.

After a Quarter-Century of marriage, one of world's wealthiest and best known couples, MacKenzie and Jeff Bezos filed for divorce. Jeff announced the split on his Twitter feed: "After a period of loving exploriation and trial separation, we have decided to divorce and continue our shared lives as friends."

As two of the wealthiest individuals in the world, the property division in this divorce will be complex. This complexity could deepen given the couple's desire to continue as business partners in joint ventures and other projects. 

The World's Wealthiest Couple

According to Forbes, Jeff Bezos is estimated to be worth $137 billion dollars. His wealth thus eclipses Warren Buffet and Bill Gates; Bezos is arguably the world’s richest man. The Bezos marital estate will undoubtedly be comprised of complex stock grants, vesting schedules and shareholder agreements. The marital estate will also include business interests separate and apart from Amazon, like the aerospace company Blue Origin, the venture capital firm Bezos Expeditions, and The Washington Post. 

While Michigan is a separate property state, and the law differs from the state of Washington, the Bezos' divorce is nevertheless instructive. This divorce is instructive here in Michigan from a high-value property division perspective. 

Lack of a Prenuptial Agreement

Much already has been written about this inchoate divorce in the press. Monday morning analysts remark how strange it is that the world's richest couple purportedly do not have a post-nuptial agreement. Well, when you think about the fact that this couple was relatively young when they met, that neither was wealthy, Amazon did not exist, and that they may have been in love, the lack of a post-nuptial agreement is really not surprising. Even if Amazon was around at the time of the Bezos nuptials, MacKenzie was a laboring oar during the company's early years and added value during the marriage. Thus, any pre-nuptial agreement would have come under close scrutiny in the court of equity that is the family court.

Property Division in Divorce

The key issue for resolution in a high-asset divorce is the division of property. Different states have different rules relating to the division of the marital estate. Michigan, unlike Washington, is a separate property state, which operates on a principle of equitable distribution. Equitable does not mean equal. While often times a marital estate is divided approximately 50/50, this is not always the case.

As a practical matter, most stock has some value. In the case of Amazon, the stock has significant value; its value has increased markedly over the past 3-years.

Jeff Bezos owns approximately 16% of Amazon stock, worth over $130 billion. Unlike a traditional financial instrument like a 401k or IRA, this stock position often complicates the property division in divorce. 

Generally, stock acquired during marriage is subject to division. Often, however, such stock is neither marketable nor liquid at the time of a divorce. 

In the Bezos’ divorce, the couple was married at the time Jeff began developing Amazon. Little known fact: MacKenzie helped Jeff grow and develop the company when they moved to Seattle in 1994 during the first year of their marriage; MacKenzie functioned as Amazon's first controller.

Since both spouses added value to the venture during the marriage, they each have an interest in Jeff's stock position. This begs the question, how should the Bezos' Amazon stock be divided? The answer: it depends. There are a number of legal and equitable considerations that must go into the division of the Amazon stock. These considerations present a set of pros and cons that may benefit or detract from a spouse's position. 

Stock Split

One approach splits the stock in like kind. This would result in Mackenzie being awarded about $65 Billion in Amazon stock. It would make her the second-largest shareholder in the company and the world’s richest woman in front of Alice Walton of Walmart, Laurene Powell Jobs of Apple and Disney Co., as well as Francoise Bettencourt Meyers of L’Oreal. 

Such a stock transfer could significantly impact the value of Amazon. However, this seat change may have an effect on the stock value as a whole. Recall the fervor resulting from Steve Jobs’ untimely death and the ensuing mania regarding the future of the company and its value devoid of one of its key founders.

A second option is a buy-out of value whereby Jeff transfers value, but not Amazon stock, to MacKenzie. In this scenario, Mackenzie receives cash and other assets in place of the stock. The limitation of this approach is the couple's liquidity. Is there sufficient cash to make this work? This is a common concern in most high-asset divorces.

The buy-out approach allows Jeff to retain his 16% stock position in Amazon while Mackenzie would be made whole via cash payments and other asset transfers. Here in Michigan, ‘equitable distribution’ is the key principle. In that way, separate property interests can be deducted and taken into account, assuming those interests and their value can be appropriately traced and that the assets have not been co-mingled. 

A third option transfers the entirety of the Amazon stock into a single entity or trust under which the couple would have joint control along with a neutral advisor -a trustee- acting as a deciding vote on all issues related to corporate decisions. In this way, negative investment perception can be assuaged in that, there would not be two separate shareholders with separate agendas and voting rights relative to the company. This would alleviate concerns that there could be an injection of potential divorce-drama within the operations of the company. However, the equity-transfer option is rare and requires the right type of company and divorcing couple to be viable. 

Even with these options, complications often persist. Emotional turpitude, behavioral variants, and the overall relationship history often cause aberrant results. Domestic violence, infidelity, and substance abuse skew a parties’ perception of what is ‘fair’ and ‘equitable’. 

Unfortunately, emotional damage is not well compensated in divorce. Notably, Michigan has a no-fault divorce system which minimizes infidelity and devalues the most of the gain by the faithful party over the adulterer. 

As such, though the process can be difficult, it is to the parties’ advantage to remain as level-headed and financially forward looking as possible. An acrimonious divorce, especially in the Bezos case, could be bad for business. 

Business Ownership in Divorce

Related to stock interests in a publicly traded company is business ownership. Although the Bezos divorce does not exactly present this issue, often times high net worth individuals own separate pass-through companies such as an S-corporations or variants of sole-proprietorships. These business assets are usually subject to a high degree of emotional attachment. Family businesses often pass from one generation to the next. An S-corporation is the brain-child of a spouse, constituting her life work. 

Emotional attachment to a business asset poses the potential for an increase in acrimony, bitterness, antagonism, and even hostility for the divorce. And yes, it also frequently distorts the true value of an asset.

For example, A enters into an agreement to purchase his father’s widget business 6 months into A’s marriage to his new wife, B. A has worked with widgets and his father for 12 years in the company and finally can make the improvements he wishes to implement while his Father can happily retire. Over the next 15 years, A negotiates a myriad of successful contracts, resulting in a spike in business revenue. However, in the sixteenth year, a new administration threatens the price and marketability of widgets. At the same time, B decides that she needs to divorce A.

The problem here is obvious: the business itself is a marital asset. As such, it needs to be valued and equitably divided. However, A has a deep emotional connection to the business and B has never contributed to the businesses success in the eyes of A. Spouse A has a difficult time rationalizing the fact that B will likely need to be compensated for her interest in the widget business. But just how much is that interest?

Often times, parties will engage their own respective business evaluators in an attempt to numerically value a complex asset. However, these evaluations can sometimes lack integral information. In the example, A is the key employee of the widget business. He has negotiated contracts, built relationships, and increased value. Without A, the business may not be as lucrative. Additionally, the new administration guidelines may cause a forecast of the business revenue to substantially decrease given negative market constraints on widgets. There are a number of ways to analyze the division of an asset like this.

First, the business may be valued and A would buy B out of her 50% interest with some other value offset or cash. This option is straightforward and provides B with the comfort of additional liquid assets or otherwise. Meanwhile, A continues to run the business in an attempt to further revenue generation.

Another option would make A and B joint owners, much like the Bezos example of the 16% Amazon stock position. However, this arrangement will likely require ongoing cooperative efforts and a stable relationship between the parties which is, sometimes, unattainable. It can also compromise the integrity and continuing operation of the business. Of course, investor perception is not a consideration in this case as it is assumed the business in this example is a closely-held concern.

Yet another option may be to sell the business, assuming it is marketable. Often times though, a closely held family business has little market value if any. The point here is that these complex assets need to be dealt with appropriately and professionally. There are no ‘hard and fast’ rules. Whether dealing with closely held corporations, stock ownership, or traditional financial vehicles, when it comes to equitable division, there are a million ways to shear a sheep.

Child and Spousal Support

The Bezos couple has four children. The children have yet to reach the age of majority which generally means child support would be an issue in the divorce. Child support, in Michigan is calculated pursuant to the Michigan Child Support Formula. The formula takes into account several factors: parenting time (calculated numerically by the number of overnights the parents have with the children); the relative incomes of the parties, insurance costs, daycare costs, and other factors. However, it should be noted that given the relative wealth that both parties will undoubtedly see at the conclusion of their divorce, child support should be a minor issue.

Coupled with the discussion of child support is spousal support, traditionally known as alimony. Spousal support is an equitable consideration and is often calculated based upon factors such as length of marriage, income of the parties, ability to pay, and the like. 

In the Bezos case, spousal support may not be a consideration, even with a lengthy marriage, given that Mackenzie will be awarded substantial assets [i.e., in the billions]. In many cases, however, a spouse is not expected to use a property award to provide for their own support. In the Bezos case, the sheer size of the estate distorts these principles.

In many divorce cases spousal support is a highly contested issue. This is particularly relevant given the changes imparted by the new Tax Cuts and Jobs Act.

Beginning January 1, 2019, support payments are no longer deductible to the payer and no longer includable as taxable gross income to the payee. While this may initially shock the conscience of potential higher-earning payer spouses, there are persuasive interpretations and arguments that support formula should adjust for the inclusion of this fact. Thus, the net effect would be that the total obligation is lower than what it would have been had the tax laws remained the same.  

We Can Help

If you have a high-asset divorce with complex holdings, consider scheduling a free consultation with our law firm. This way, you can assess your options.

Post #622
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Courtesy of the Wall Street Journal

As a student at the University of Michigan in the early 1980s, I recall taking a computer science class to learn what was then called computer language: BASIC, Fortran, Cobal. We fed stacks of carefully completed cards into a giant computer; the cards contained instructions for the computer and took a dozen just to run a simple math equation.

Today, it's called code. And with artificial intelligence at the assist, the computer is a robot, or Bot.

We here at the Law Blogger have blogged about artificial intelligence and its applications in the legal profession. That's why a Wall Street Journal article about a robot that will "handle your divorce" caught our eye.

Many uncontested divorces have become largely administrative in their processing at the county family courts throughout Michigan. Years ago, we touted a New York City law firm that offered a divorce judgment in an hour.

Now, the WSJ profiled a bot that will assist with your uncontested divorce. Like the 60-minute divorce, all the stars and planets have to be lined-up for this to work at all, let alone work properly.

The divorce robot was designed by Joshua Browder, only 19, who gained a fair amount of tech fame with his DoNotPay "chatbot", an AI-boosted computer program designed to challenge traffic tickets. With the success of his free traffic ticket appeal application, Browder is forging ahead with a divorce bot.

His idea is to bring family law to the people by offering an application this February that will, according to the WSJ, "generate all the documents necessary to file for divorce, without involving lawyers." The WSJ estimates that a whopping 95% of all divorces are "uncontested"; the implication is that lawyers are essentially unnecessary in those cases.

As divorce lawyers, we can attest to the fact that "one size does not fit all" in the family court. Many cases that appear amicable at first-blush really are in-fact contested.

In most cases, there are several issues that require a family court professional to resolve. Income to determine child support, supervised parenting time, high-net-worth property division and myriad custody issues come to mind to name just a few such issues.

Just this past month, we blogged about block-buster custody issues involving custody and the vaccination of children and the joint custody of a biological father who conceived his child from the rape of the mother.

We would also challenge the estimate that 95% of all divorces are uncontested. Our law firm believes that every case is different; each has at least one or two legal issues that depend on the facts of the family; however subtle.

So we will not plan to hang-up our divorce cleats anytime soon, but do wish Mr. Browder the best of luck in bringing the law to the people. He is most certainly on the right track in that regard.

Post #608
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In the past ten-years, my law firm has produced a few short video clips to promote our mission statement. We have enjoyed just a few very slim slices of public exposure during this decade.

This 600th post publishes some of our best clips from the past 10-years. Take a look...

The very first clip features a closing argument following a three-day trial in a drunk driving case before the legendary Oakland Circuit Judge Steven Andrews way back in 2009. This poor-quality video was purchased from the Oakland County Circuit Court Administrator prior to the Court's ban on disseminating such videos of court proceedings.

This second clip features a panel discussion involving my first case before the Michigan Supreme Court back in 2006. Probably for the legal professionals among our readers.

Then we produced our first marketing video in 2010, designed for social media distribution. The colors were good, and the "actors" are actual clients. We really got a lot of mileage out of this short little clip.

Here is another throwback to the Oakland Circuit Court from 2009; a sentencing hearing for one of our few homicide cases. Now-retired and long-serving Oakland Circuit Judge Ed Sosnick can be seen presiding over the hearing. Our client pled to leaving the scene of an accident resulting in death; she was sentenced to 6-months in the "work-release" program.

More recently, I was able to generate a clip resulting from one of my rare appearances before the Michigan Supreme Court in People v Robertson; a case involving the "search and seizure" clause of the 4th Amendment to the United States Constitution. Boy, am I ever getting grey...

Finally, last year, we got it together and produced this gem with a pair of our best clients ever.

Time really does fly when you are having fun; this is certainly true in the professional setting.

If you or a loved one are facing the rough waters of a divorce or criminal charge, give us a call to discuss your options in a free  consultation.

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What would you do if you discovered your spouse was being unfaithful and you wanted rock solid evidence to present to your divorce lawyer? Be careful not to go to far into your spouse's computer or you may run afoul of applicable wiretapping and surveillance laws.

A recent federal appellate decision from the 7th Circuit in Chicago held that a wife's unauthorized access to her husband's email account possibly violated the federal wiretapping laws. The couple was embroiled in a high-conflict divorce featuring allegations that husband was a serial adulterer.

In the county family court, husband sought discovery of all evidence that supported wife's adultery allegations. Wife obliged, producing a series of damaging emails between husband and several other women. During this discovery, husband learned that wife placed an "auto-forward" rule on husband's email so that, unbeknownst to him, all of his emails were forwarded to wife.

Getting creative, if not desperate, husband filed a lawsuit in federal court against wife and her divorce attorney on the basis that wife's capture of husband's email, and her lawyer's disclosure in the divorce proceeding, violated the federal wiretapping and surveillance act. The federal district court, however, dismissed husband's federal lawsuit.

In reversing the lower court on appeal, the United States Seventh Circuit Court of Appeals held that husband adequately pled a claim under the federal law; but that the case against the lawyer was properly dismissed. The case features a legalistic argument under the Wiretap Act regarding whether wife "contemporaneously" intercepted the emails; this debate was found to of little import by the 7th Circuit's panel in reversing the lower court and remanding the case against the wife.

So now, wife will need to prosecute her divorce while simultaneously defending husband's federal action. The case stands for the proposition that it pays to abide by the rules when conducting discovery in a lawsuit; even a divorce that features a serial cheater.

Post #573

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Last week, HBO introduced its latest series Divorce, starring Sarah Jessica Parker and Thomas Haden Church. The show takes a dark comedic look at the divorce process from start to finish.

Parker and Church are perfectly cast for this important tale of woe. An extra-marital affair gets things kicked off, and its downhill from there.

Yes, the doomed couple tries counseling; yes, there are divorce lawyers; and there are minor children; even a dog. None of the professionals, each with their own agendas, can repair the marriage. Thus, Divorce, with its difficult intricate process.

Yet, while the divorce process is difficult, stressful, intricate and often painful, it is necessary for a couple -a family- to repair the damage and to move on to more productive meaningful lives. The HBO series demonstrates that how a person chooses to travel the divorce journey matters.

This show benefits from its pilot and first episodes being aired during the most contentious and vicious presidential election in U.S. history. In some ways, the election, which none of us can escape, sets the table for a show like this. Like the presidential candidates going through the election process, spouses in a divorce can take the high or low road; each spouse, just as each candidate, will have their reasons for which road to take.

With the series broken into half-hour episodes, the writing is taut, with the veteran actors making the most of every precious minute to convey the pain and tension of the divorce process. "I want to save my life while I still care about it," Frances -SJP's character- offers as the reason she elected to divorce her husband of about 15-years.

While not for everyone, this series will no doubt appeal -or at least be of interest- to the half of our population touched by divorce. As the institution of marriage has shifted from an economic basis to one based on emotion and love, so too have the reasons married couples call it quits.

Accordingly, over the span of a quarter century, divorce has shifted from a fault-based to a "no fault" legal procedure in every state; neither party need articulate a reason for seeking divorce other than a conclusory allegation that the objects of matrimony have been destroyed. One extension of making the divorce process "user friendly" has been the creation of specialized "family courts" embedded within the court structure of each state.

Divorce, the series, demonstrates, however, that no-fault is never really "no-fault"; especially when there are minor children. There is always plenty of fault to apportion within the confines of a disintegrating marriage; there is often a lack of introspection and self-awareness; plenty of spouses behaving badly.

We here at the Law Blogger cannot help but sense that the divorce process will only become more prevalent. Regardless of the recent innovations designed to streamline and simplify the process, the most significant factor in any given divorce is the actions of the participants: the judge, lawyers and, most importantly, the litigants.

Post #563

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Brad Pitt in the movie Snatch

News of the divorce between Hollywood A-listers Brad Pitt and Angelina Jolie lit-up the 24/7 news cycle last week. While not surprising that another blockbuster couple is calling it quits, the high-priced legal spokespersons on each side promised a pitched custody battle following rumors of allegations of mile-high child abuse on an apparently tension-filled international flight.

Rumors that Pitt is the subject of investigations by the FBI, California law enforcement, and child protective services are not panning out. The rumors attempted to frame the narrative for Jolie to get an edge in the upcoming custody battle.

One fact that has been confirmed is that Jolie filed for divorce seeking "sole custody" in her complaint for divorce. Seeking sole custody is an aggressive move in family court where most legal professionals presume joint custody is in the best interests of the minor child.

Not all cases are suitable for joint custody, however. When spouses cannot communicate for the sake of effective co-parenting, or when one parent is abusive to the other spouse or children, sole custody often results.

While various agencies seem to be deflecting queries about investigations, FBI involvement arose as a routine matter given the circumstances of a private jet entering US airspace from abroad. Acknowledging a role in the incident, the FBI's official line is that they have yet to decide whether they will launch an official investigation.

The real fireworks involve the lawyers the stars hired for this divorce. Jolie hired second-generation divorce lawyer Laura Wasser, the so-called "Disso Queen"; the queen of [marital] dissolution.

Charging $850 per hour, Ms Wasser claims Johnny Depp and a Kardashian [or two] among her clients. Used to clients who value their privacy, Wasser prefers to settle cases privately, outside the courtroom where they belong.

For his part, Pitt hired veteran Hollywood divorce lawyer Lance Spiegel, who has made his bones representing the likes of Charlie Sheen, Michael Jackson, and Heather Locklear among others.

To the extent that this famous split sheds light on the concept of legal and physical custody in a divorce, we will follow-up.

Post #559

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Like here in the West, the once-solid traditional concept of family and the institution of marriage has been placed under great stress in China; a country where, for centuries, marriage was universal and mostly permanent.

Social trends affecting the family have been directly engineered by the modern communist state in China [like the one-child policy] as well as indirectly [as in the massive urbanization push of the past five years]. Add Internet access for over a billion people and, watch the infidelity rate, along with the divorce rate, increase significantly.

Until 1994, the Chinese divorce petitioner was required to produce an employer's or community leader's endorsement before a decree would issue. Community leader translates as: the local apparatchik.

In modern China, the lid is now blown-off the divorce process. Today, if husband and wife agree, it is nothing more than a brief administrative detention.

Divorce is handled in China at the district government bureau level. Some cases only take a half hour at the dingy bureau offices and cost the equivalent of a buck and a half. Yes, that's one dollar and fifty cents.

No lawyers, of course. Property has always meant something different in communist China; property is always handled by the government in China. When it comes to divorce, China's separate property laws favor men who more often take advantage of property gifted to them by their parents, even during the marriage; such property remains the husband's separate estate under Chinese divorce laws.

America has the highest divorce rate among developed Western countries; China's divorce rate is fast-approaching ours, with 3.6 million million Chinese couples calling it quits in 2014.

The Chinese government's internal migration effort has been characterized as the largest and most profound in human history. This massive displacement has put a lethal amount of stress on millions upon millions of marriages in modern China.

Another factor related to China's increasing divorce rate is the effect of the Internet and social media on women's awareness of their rights in a divorce; not ever a topic for consideration in Mao's era and through the 1980s. Today, women initiate over half of all Chinese divorce filings.

Let's not forget, however, that China still has a component of its population adhering to Confucian-style family values and the multi-generational family structure. Divorce and separation are seen by the more mature generations as a moral failure, often caused, at least in part, by creeping Western influences.

For the young and recently urbanized, infidelity is a new-found freedom and [possibly arranged] marriages are left behind, along with their parents' village. Another factor to consider within the urbanization context is that men still cannot legally marry in China until age 22, the oldest such restriction on the planet.

So the immediate outlook is that China, along with the United States, will lead the world in the rate of divorce. This is probably not a good thing; it is a seemingly inescapable fact of life in the developed world.

Post Scripts: Apparently, we are not the only ones thinking about this topic; take a look at Helen Gao's article in the Sunday NYT from October 16, 2016. And another on the topic courtesy of The Economist from November 30, 2016.

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Post #519

Judges Foley & Drazewski

Lawyers and laypersons alike look to judges to make proper decisions. To err, however, is human.

Judges are people too, albeit bestowed with authority; therefore, they are imperfect, right along with the rest of humanity. Imbued therefore, with imperfect authority.

A truly one-of-its-kind case hammering that point home comes to us from McLean County, Illinois; two hours to the Southwest of Chicago. Circuit Judges Rebecca Foley and Scott Drazewski provided testimony this week to a panel of the Illinois Courts Commission in Chicago regarding their mutually adulterous affair; an affair that ended both of their respective marriages in divorce.

Of course, all of this is old news for the folks in McLean County; even perhaps for most Illinoisans. The interesting and significant component of last month's hearing was the testimony of the judges, both asserting, through lawyers, that their admitted mutually adulterous affair violated no specific rule of judicial ethics.

Really? That one is a stretch for us over here at the Law Blogger, knowing as we do the choppy seas of the mutually adulterous affair. The case also involves a component where Judge Drazewski presided over a trial involving Judge Foley's attorney-husband.

Not only do such affairs put a bullet into two marriages; the adulterous lovers, upon being freed from the bonds of matrimony through the divorce process -again, in this case, a high-profile proceeding- usually, eventually, cool toward one another, and split-up.

In this case, however, the two judges plan to wed. Does their claim of "true love" now provide a hall-pass for their silence, concealment, and deception relative to their long-rumored affair. Extensive proofs -yes, there were text messages- have been submitted and the Commission is expected to issue an opinion in 6-weeks.

As practicing trial lawyers, we are most troubled by Judge Drazewski's legalistic argument that no judicial ethics violation occurred regarding the specific case of Judge Foley's lawyer-husband, who litigated a trial before Judge Drazewski while the lid blew-off the judge's affair with his wife.

We here at this blog see an inherent conflict whenever a trial lawyer is cuckolded by the judge presiding over his case. Every ruling  -procedural, evidentiary, dispositive- would be, with good reason should be, second-guessed. Thus, why ever conduct such a trial?

In February 2011, the husband blew-up the situation after witnessing his wife, Judge Foley, kissing Drazewski. The judge refused to recuse himself from Foley's cases and argued to the Commission that unless Foley could demonstrate actual bias by Judge Drazewski that would alter the case outcome, he was not required to step-off the case.

Will the Commission be persuaded by the judges' argument? Will the judicial couple survive if they are forced-off the bench in righteous disgrace over their affair?

Even if they retain their seats on the bench through a favorable decision from the Commission, we wonder if the voters will be as understanding about these two judicial love birds.

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Post #506

Mom and Dad Tsimhoni

Judges must be fair and impartial despite the intense family emotions that swirl about their case load. The judicial system depends on that bedrock principle.

When you file a case in one of the county family courts here in Michigan, the county clerk that processes the complaint utilizes a blind draw system to assign your judge. This means that litigants cannot select the judge assigned to their case.

Sometimes, family court litigants are viscerally dissatisfied with the judge assigned to their case, especially when the judge makes decisions adverse to their interests. In every case, the family court judge will upset one of the two parents embroiled in a custody or parenting battle.

Judges are required to remain neutral, unbiased finders of fact; these judges are charged with determining the best interests of the minor children in every case. From time to time, a parent believes that the judge has lost their impartiality and claims that their judge is personally invested in their case to the point of bias.

When these allegations surface, one option available to family court litigants is to file a motion to disqualify the judge. If a family court judge denies such a motion, then the offended litigant can file the motion with the chief judge of the circuit court.

Recently, this procedure played-out in the high-profile, high-conflict Tsimhoni divorce. The mother attempted to disqualify Judge Lisa Gorcyca after her three children spent their summer in Children's Village and at a court-ordered juvenile camp, and more-recently, after she lost custody of the children to her ex-husband.

After these adverse rulings, and after she changed lawyers for about the 10th time, mother filed the motion to DQ the judge, and Judge Gorcyca denied the requested relief, refusing to step down from the case. Among the thousands of cases on the open family court docket in Oakland County, this one stands-out due to mother's severe parental alienation against the father.

Mother's new lawyer filed an appeal with Oakland Circuit's Judge Nanci Grant, the chief judge of the court.

Now, as this parental alienation case blew-up in the national media because both parents refused to work together as co-parents, they tossed it into the lap of the Oakland County Family Court where Judge Nanci Grant has recused herself from hearing the appeal of mother's attempt to disqualify Judge Gorcyca.

This was a very strategic move by the veteran Oakland County chief judge. Now that she has recused herself, the case goes before the plenary court to determine whether any of the remaining judges wish to take the case.  We don't think there will be any takers.

If none of the judges on the Oakland County Circuit Court want this steaming pile of horse dung, it goes to the family court judges of an adjacent county like Wayne, Genesee or Macomb County Circuit Courts.

The parents now need to bury the hatchet and regain control of their family for the sake of their children.

One of the best kept secrets of the family court is that the judges are powerless if the parents agree on a plan going forward. If they cannot agree, then they judges have the power to control every aspect of of their family life.

It is exceedingly difficult and rare to successfully bring a motion to disqualify a judge. For the most part, family court litigants are stuck with the "luck-of-the-draw" where judicial case assignments are concerned.

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Post #502

Last week, it caught our eye that Monica Conyers filed for divorce in the Wayne County Family Court. She is the wife of long-serving Congressman John Conyers, from Michigan's 13th District in Detroit.

Ms. Conyers went to federal prison several years ago on a bribery conviction that arose during her brief stint as President of the Detroit City Council; she was released from the joint in March 2013. Her tenure on the Detroit City Council was during the Kwame Kilpatrick sexting scandal.

Because Monica did time in a federal prison, and because John is the dean among Congressman in Washington D.C., having served his district since 1965, we figured a divorce would one day occur. According to the divorce lawyers, however, the couple is amicable and John would like to avoid the proceeding altogether if he could.

This divorce proceeding will be "high-profile" in name only; simply because of the status of the parties involved in the family court proceeding. There will be no high-powered tell-all in the divorce divorce judgment that concludes this matter at some point in 2016. This is because both parties, married since 1990, will seek to keep their business private.

Although the litigation process is a public one, there are ways that the substance of a divorce proceeding can remain private. Currently, there is an active debate among the family court bench and bar as to whether all family court records should be sealed.

When a high-asset or high-profile couple files for divorce, the lawyers use a private settlement agreement to keep the proceedings out of the public eye. While a judgment of divorce is required, and that document is public, the settlement agreement is not filed with the court and is kept private, functioning much like a contract.

If enforcement issues arise, the family court judge consults the terms of the settlement agreement, but the public does not get a look. This is usually the best manner to proceed.

The really sad part of this story is, just as the Congressman nears retirement at age 86, his wife is suing for divorce, apparently determined to end their marriage. Although Conyers filed a counter claim for divorce -standard procedure- he would like to remain married.

When one party to a marriage insists on getting divorced, it will occur regardless whether the other party resists.

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Since 2001, AshleyMadison.com has been around for married cheaters. The controversial website touts discrete electronic profiles for married folks interested in committing adultery.

Four years ago, the Canadian business attempted to go public on the Toronto Stock Exchange but could not raise sufficient capital or interest. Now they're at it again, this time planning an IPO for London, England sometime later this year.

The risque dating website claims over 35-million members and posted revenues of $115 million last year. They hope to raise $200 million in their IPO.

Perhaps the British and European dating markets are more sophisticated, but we here at the Law Blogger have to wonder about the public value of a company with Ashley Madison's business model. Company executives have long-admitted they sell the "darker side of dating."

Classically understated; folks get killed out that way. Also, they are selling a product that arguably encourages the erosion of the institution of marriage and that is illegal in many jurisdictions, including here in Michigan.

The company does have its marketing analytics down to a fine yet devious art form. If a person gets married in the United States and files their marriage license with the county, as required in most states, AM obtains that now-public information and begins sending advertisements and other electronic communication to individuals with a certain type of profile.

The illegality of adultery does not bother company execs who point to the case of South Korea. When AM began its operations in South Korea, where adultery was recently illegal, government censors blocked the web site. But then the Supreme Court in South Korea changed the 63-year old law, and AM has been allowed to operate with impunity.

In going public in London, the company will be directly competing with the French web site, Gleeden. One thing is for sure; across the globe, Ashley Madison has become synonymous with marital infidelity; apparently, that's a billion dollar a year industry.

For our part, we here at the Law Blogger have handled more than a few cases where one spouse alleges the other has created a profile on the Ashley Madison website. Therefore, despite the need to diversify the nationality of our investment portfolios, we will not be among the investors should this company go public.

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In France, fidelity in marriage is written into the French civil code.  So when racy advertisements began sprouting-up in the Metro last year touting an adultery website, the Association of Catholic Families not only took offense, it filed a civil lawsuit.

Legal scholars believe that the suit may get some legs.  At issue is whether a website can promote adultery when marital fidelity is a matter of law.

As part of its promotion, membership in the website, Gleeden.com, is fee to women and advertises on its home page that it is the only dating website made by women.  Thus, only men must pay a fee in order to access the site and view married women's profiles.

Online since 2009, the site boasts over a million members in France alone, with millions of other members spread across Europe.

In France, the legal system is made up of codes that are the rough equivalent to our federal statutes and regulations.  Unlike our common law system, however, a judge does not have broad interpretive powers. Nevertheless, a case like this demands a jurist to take into account, "the changing moral values of modern society," according to a French divorce lawyer quoted by the BBC.

The Catholic group's law suit against the site claims that while many other dating websites promote sexual relations, the very business model of Gleeden incites married couples to violate their civic duty to maintain fidelity to their spouse.

There are similar sites to Gleeden here in the United States. When a married couple files their marriage license with their state, for example, Ashley Madison spam often quickly follows.

Although rarely charged, adultery remains a felony written into the Michigan Penal Code.

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If you are a Catholic that strictly adheres to the catechism of the church, then you cannot partake in holy communion if you are divorced and remarried.  This applies to a lot of Catholics.

Some of the more connected among the faithful can arrange to obtain an annulment of their first marriage, clearing the path to remarriage and holy communion.  This, however, requires the utilization of a priest that knows how to work the "ecclesiastical tribunal".

Next month, a synod of Catholic Bishops convened by Pope Francis, will reexamine the catechism of divorce.  Although the Pontiff's position on the matter is not known, conservative church leaders are meeting the synod head-on with the publication of a book in defense of the permanence of marriage.

The Catholic divorce apologetics got underway through a proposal advanced by German Cardinal, Walter Kasper, the divorced and remarried, after a period of penance, would be able to take holy communion once again.

If you are a Catholic divorcee, this is what the Church currently and officially has to say about your situation at §2384 of the catechism:

Divorce is a grave offense against the natural law.  It claims to break the contract, to which the spouses freely consented, to live with each other till death.  Divorce does injury to the covenant of salvation, of which sacramental marriage is the sign.  Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture: the remarried spouse is then in a situation of public and permanent adultery.

The remarried Catholic divorcee is excluded from communion.  But there is an interesting, and broad, escape clause in the doctrine:

If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.

 In addition to the above, which a good litigator can fit to almost any circumstance, there is the possibility of an annulment, set forth at §1629 of the catechism:

For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e. that the marriage never existed.  In this case, the contracting parties are free to marry provided the natural obligations of a previous union are discharged.

Well that certainly clears it up.  This language suggests hope for those divorced Catholics that want to remain faithful to their Church and partake in the sacraments, especially holy communion.

The conflict anticipated at the Bishops' synod pits the permanence of sacramental marriage against the erosion of marriage as a modern social institution.  Pope Francis appears to be an inclusive rather than an exclusive prelate.

Let's see what the synod produces next month on the subject.

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By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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This is this morning's headline, picked-up by the major news outlets of the world on the occasion of a new French law that takes effect today.  In France, if a couple meets certain administrative requirements when filing for divorce, which place them into a "no contest" or "pro confesso" category, then they can obtain a divorce decree without a judge ever having looked at their case file; just a clerk.

Boy, the French sure know matters of the heart.  Or do they?  Ms. Dominique Bertinotti, the stylish French Minister of Social Affairs, said today that, with one of every two couples eventually getting divorced, "do we have to make it more difficult?"  She said the new law was designed to simplify the divorce process and that, "simplification is a good thing."

Of course, the new French law is being reviled by critics as the latest harbinger of the destruction of marriage as a viable social institution.  Really?  We here at the Law Blogger, fortunately, don't see married couples going away any time soon.

Here in America, and specifically, here in Oakland County, Michigan, an uncontested divorce barely gets on a family court judge's radar.  If the parties to a divorce proceeding agree on all the issues [more common than you would think] most family court judges are unwilling to get in the way of the agreed upon resolution and basically "rubber-stamp" the proposed divorce decree; especially when prepared by a lawyer with all the requisite bells and whistles.

What's more, in the collaborative divorce model favored by our law firm, all the negotiating is done before the family court even acquires jurisdiction over the parties and their children.  The settlement agreement is negotiated first, then executed; only then is the case "officially" filed with the court.  By then, it's a done deal.

So perhaps this is what the French had in mind when they passed this new law.  So long as a couple agrees on the manner in which they desire to extricate themselves from the marital contract, and so long as the arrangement is fair, does the state really need to butt in?

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By: Timothy P. Flynn

There is no doubt that a divorce proceeding affects any professional's work routine; that includes, of course, corporate executives.  The distraction of a divorce in the board room, however, affects others outside the company; it pulls the corporate shareholders within its scope.

We're not just talking about guys like Mad Men's Don Draper, whose divorce temporarily but significantly affected the partners of a successful NYC advertising agency.  A CEO's divorce can affect the bottom-line for the shareholders in the company.

There are several ways that an executive's divorce could affect the company for which he or she manages.  First, if the executive has a significant stake in the company, the divorce could affect the executive's controlling interest.  The divorcing spouse will want a portion of the value owned by the executive and that value could affect control of the company.

Second, the divorcing executive's corporate focus and energy levels will be impacted by the trajectory of his or her divorce proceeding.  It is no surprise that business studies and surveys have shown that well over one-third of companies report a negative productivity impact directly arising from the divorce of an executive.

Third, the divorcing executive's strategic decision making can be influenced by the divorce proceeding.  If, for example, the executive is funding her divorce settlement with personal assets so that she can retain her share of corporate ownership, her outlook toward risk could be impacted: i.e. she may become more risk-adverse in the short term in order to protect her suddenly less-diversified and more concentrated net worth.  Being less risk-adverse may not be good for the company or its shareholders.

All of this affects a shareholder's interest in the company.  In many cases, perhaps because of the above examples, corporate divorces are handled as privately as possible.

The collaborative model we prefer here at Clarkston Legal serves the executive, and thus her company, very well.  The collaborative model is where the divorcing parties, and their team of professionals, meet and negotiate a settlement before a divorce proceeding is officially filed with the family court.

If you or your spouse are considering a divorce and there are corporate implications, you should give serious consideration to the collaborative model.  To learn more, contact us for a free consultation.

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Here come the lawsuits.  In the wake of the SCOTUS ruling in June striking down same-sex marriage bans and granting federal benefits to same-sex married couples, many couples are finding their way to court houses across the country.

Most states that have what could be called "gay-friendly" legislatures, something that we would expect changes over time, have already passed laws specifically granting gay couples the right to marry in a dozen states.  So the strategy among proponents of the notion of gay marriage has shifted from the state capitols to the county courthouses.

In Santa Fe County, NM, for example, a family court judge ordered the county clerk's office to issue marriage licenses to couples without regard to their gender or sexual orientation, ruling within a brief hearing that doing so was now unconstitutional.  At the time of this blog post, 7 counties in New Mexico have followed suit.

In neighboring Texas, the Supreme Court has scheduled oral arguments for November in two cases where same-sex married couples were granted divorces from Texas county family courts.  The Texas Attorney General has intervened in the divorce proceedings, asserting the divorces issued by the family courts are invalid because they implicitly recognize same-sex marriage; something proscribed by Texas law.

Cases in Tennessee and Kentucky are also percolating through the state courts, testing state laws proscribing same-sex marriage.  In one of the several cases pending in Kentucky, one-half of a same-sex married couple is on trial for murder and the issue in the court is whether his "better-half" can be compelled to testify, or whether he should be granted spousal immunity.

In another high-profile case from Franklin County, Kentucky, a same-sex couple filed suit against the Governor on grounds that Kentucky's outright constitutional ban of same-sex marriages violates the Equal Protection clauses of the U.S. and Kentucky constitutions.  This is the same issue that was decided in California in the SCOTUS Windsor case.

Currently, there are too many same-sex marriage cases to track unless you are a law professor or law student writing a law review article on the subject.  Unlike the SCOTUS' 1973 Roe v Wade decision, considered the height of judicial activism, which created a sweeping constitutional ban on anti-abortion legislation, last term's same-sex marriage decision adopted a state-by-state approach.

While the momentum toward recognition of same-sex marriage as a civil right has gained steam since we here at the Law Blogger picked-up on the issue back in 2009, it will take at least a quarter century for the current dust to settle.  At least that is our prediction.

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