DIVORCE AND COLLAPSE OF THE REAL ESTATE MARKET

DIVORCE JUDGMENT LANGUAGE
On April 7, 2011, the Michigan Court of Appeals decided a case that dealt with the interplay of the real estate market collapse and judgments of divorce. In the case of Neill /f/k/a Schmoke v Schomke, Docket No. 294878, unpublished, the husband agreed in the consent divorce judgment to a provision where he would pay his wife the amount of $1,074,000 for her share of the value of the marital home upon the sale of the home or after five years from the entry of the judgment. Further, the judgment stated that this sum would become a money judgment after five years.

COLLAPSE OF THE REAL ESATE MARKET
The house did not sell, not only that, the Defendant lost the home in foreclosure before the expiration of the five year period. His former wife then executed upon the money judgment and sought payment of the $1,074,000. The reality of the situation is that the real estate market in Michigan collapsed and most people, regardless of their intelligence, did not foresee the devastating extent of this collapse. The defendant in this case is a doctor and a well-educated and intelligent person whom like most here did not foresee this collapse.

The trial court took this problem into consideration and decided basically that due to the collapse of the real estate market that it would not be fair to force the Defendant to pay this full amount. The flip side of this argument whether it is fair to the ex-wife in this situation where she bargained for and contracted for an exact amount of money for her share of the home.

IMPORTANCE OF THE SPECIFIC LANGAUGE IN THE DIVORCE JUDGMENT
The Michigan Court of Appeals reversed this decision. The court paid a lot of attention to the exact wording of the judgment which stated that the amount due would become a money judgment. The appellate court found that due to this specific language particularly that after five years the amount would become a money judgment, the judgment was not subject to modification except in very limited circumstances.

The appellate court decided that it would be more unfair to the ex-wife to modify the amount of money due to her from the ex-husband as they both made a strategic decision to settle the matter and that he should not be relieved from his bad decision merely because his assessment of the consequences was incorrect. So it would appear that the court held the Defendant to his bad bargain and looked more to contract law in enforcing the judgment than it did to the traditional equitable or fairness arguments that would otherwise control in a divorce matter.

One last note of interest in the decision itself, was that the trial court believed the collapse of the real estate market in Michigan was an extraordinary circumstance that should allow revision of the judgment, the appellate court stated that while the “downturn was unfortunate” it could not be characterized as “entirely unforeseeable or extraordinary”. So despite the fact that it appears the extent of the collapse of the market is historically unique in this part of the country, the court still decided that people should have somehow been prepared for this potential when drafting the judgment of divorce.

COMPARE TO PRENUPTIAL AGREEMENTS
The court treated this judgment the way that the courts appear to be treating prenuptial agreements. The court favors enforcing the contractual provisions without attempting to balance the equities of the situation. Just as the courts have strongly trended toward enforcement of prenuptials as written without attempting to rebalance the equities between the parties, so here the court held the defendant to his bargain without attempting to rebalance the burden between these parties. Ten years ago, it is my belief that the outcome of this case would have been different and that this is an example of the ascendancy of contract law in the area of matrimonial law.

LESSONS LEARNED
There are a number of lessons one may learn from this case. First, every word and phrase in a judgment of divorce must be drafted and reviewed with care. If the use of the term “money judgment” was avoided, there may have been a different outcome in this case. Second, that the term foreseeable is very narrow when viewed in the eyes of the court and applied to divorce judgments. Finally, the court continues to rely more and more upon contractual principles in the area of matrimonial and appears to be moving away from equitability or fairness to both parties. From prenuptials to judgments of divorce, one must be very careful when drafting these agreements as the courts will enforce them as written.

Save Your Marriage, Be Nice to Your Spouse

I deal with divorcing couples all the time.  No-one wants to get divorced, but by the time they get to me, the relationship is typically over.  Do not take your marriage or your relationship for granted.  Here are some suggested thoughts on trying to make your spouse happy, which in turn should make for a better relationship and hopefully avoid the disastrous consequences that can be a result of a relationship turned bad.

Try taking a weekend trip somewhere that your spouse wants to go or visit.  It does not have to be "Dutch Amish Country" but just get out of the house.  Maybe even a local hotel with a swimming pool and sauna.  Have the grandparents watch the kids or hire a babysitter to watch them overnight.

Take your spouse to an event that they would enjoy.  Maybe try the Detroit Opera House for your wife or a Red Wings game for your husband.  Go see a movie together and indulge with a big tub of popcorn.  Then stay the night out somewhere.

Next time you disagree with your spouse, maybe let them have the final word.  You are sometimes better off not saying everything that you think.  The instant gratification of telling your spouse that they are an idiot often results in serious negative consequences that are just not worth it.  We all act like idiots sometimes, your spouse will figure it out.  You don't have to point out all of their errors or shortcomings.

Try to be as supportive as possible.  Listen to what they tell you when they are complaining about something.  You do not have to offer a solution, you just have to listen and act like you care (because you do of course care about them). 

Say something nice to your spouse about them.  We all have to deal with difficulties and people that are trying to cause problems for us, when we come home we as spouses should attempt to be there for our partners.  A kind word here and there really helps and who doesn't like to hear nice things about themselves.\

Don't worry if you feel that you are the only one that is trying to please the other person.  Hopefully they will come around after some persistent niceness and caring on your part.  Even if you feel like you are doing all the accommodating of the other person's feelings, it may be worth it.  Like my dad says, life is hard but the alternative is worse.

Good luck, be nice.

Amicable Divorce Solutions Avoid Astronomical Attorney Fees

I practice in the area of family law or divorce in Oakland County, Michigan. My experience leads me to believe that power and control issues are the biggest cause of divorce. There are several reasons to avoid carrying these issues forward into a divorce proceeding.


Huge attorney fees can result from power and control issues in divorce cases.

When a divorcing couple cannot resolve parenting time and custody issues, the result, among other things, is astronomical attorney fees. Unfortunately these important issues often become another opportunity for a power and control struggle between two adults that can't talk to one another. Too often one divorced parent will make a decision regarding the child and take action on that decision without discussing it with the other parent. This appears to be what happened in the case of the Pierron family.

In the post-divorce case, Pierron v. Pierron, decided by the Michigan Supreme Court in 2010, a divorced couple could not come to an agreement on which school their child should attend, which appears to be the result of unresolved power and control issues between this divorced couple.

One should undestand that in Michigan where parents share joint legal custody, they share joint decision making powers regarding important life issues that affect their children. The courts usually grant joint legal custody.  Case law indicates hat where a child attends school is one of these issues that the parents must decide together when they share joint legal custody. If they cannot, the courts will decide for them and this is what happened in the Pierron case.

This issue of which school the child should attend in the Pierron case led to a protracted legal battle which led all the way to the Michigan Supreme Court. After the court made its decision, the mother of the child filed a motion to have the father pay for her attorney fees. In Michigan, a court may order one parent to pay for the other parent’s attorney fees in a divorce (or post-divorce case) where the court finds that the parent requesting payment does not have sufficient assets to pay for the attorney fees and the other parent does have sufficient assets.

In this case, the mother apparently incurred a whopping bill of $136,449.12 in attorney fees in a struggle over which school the child should attend. The court ordered the father to pay for $64,599.12 of her attorney fees.  This means he had to pay her attorney this money in addition to whatever amount he incurred in his own attorney fees, ouch!

This is a whole lot of money to pay over a dispute about which school their child should attend. It would seem that they both would have saved a lot of time, money and emotional stress if they could have rationally and reasonably discussed this issue and come to a decision between the two of them without the court intervention.

Neither party comes out ahead when the mother still has to pay for close to $72,000 in attorney fees and the father has to pay $64,599.12 of her attorney fees in addition to his own. Further, this was a post-divorce case and does not even address the amount of fees they incurred in the original divorce. This is all money that they could have kept for themselves or spent on their child’s college education if they were so concerned about the child’s education and welfare.

The conclusion is that allowing power and control issues to motivate and control a divorce proceeding is a big mistake. Resolving all matters in a reasonably amicable divorce without egos and emotions is the best way to go, particularly when there are children involved. If one does not, then this can result in repeated court struggles throughout the life of one's children. This is not only damaging to the children but it can result in astronomical attorney fees as well. One must be careful in choosing a divorce lawyer, a family law attorney that does not understand the cost of litigation and the value of an amicable divorce can cause a lifetime of problems.

Reading List for People in all Stages of Divorce

I have practiced in the area of family law (sometimes considered a euphemism for divorce lawyer) in the Rochester Hills, Michigan area for several years. The following books may be helpful for you to read if you are considering divorce, are in the middle of a divorce, or have just come through a divorce. Probably the most important issues in any divorce is preparation and support. Knowing what to expect from the process of divorce can help alleviate some of the loss and confusion associated with this process.


Contemplating Divorce: A Step-by-Step Guide to Deciding Whether to Stay or Go
by Susan Pease Gadoua

The book includes practical lessons in what needs married couples have and ways to fix problem areas in your relationship. By taking a look at the assumptions and expectations of the relationship with your spouse, you will be in a position to explore the reasons you are thinking about divorce.

Divorce and Money : How to Make the Best Financial Decisions During Divorce
by Violet Woodhouse

This book offers detailed and practical advice on how to look at your finances with a clear mind through this difficult time. Everyone needs to learn the hard facts about their financial future after a divorce.

The Divorce Organizer & Planner
by Brette Sember

This divorce workbook streamlines the process even when enduring a difficult split. You'll find easy to understand planners for everything needed to prepare for the legal, emotional, and financial aspects of your divorce.

Nolo's Essential Guide to Divorce
by Emily Doskow, Attorney

The book is well organized and easy to read, without all the legal language getting in the way, but enough to make the information valuable. If you're looking for no-nonsense divorce information, try this book first.

Helping Your Kids Cope with Divorce the Sandcastles Way
by M. Gary Neuman

This book is based on the group session for children of divorced parents. In this book you'll find exercises designed to increase communication, understanding, and togetherness between parents and kids. You'll find suggestions on how to break the divorce news to a child, how to handle the holidays, visitation, custody arrangements, anger, discipline, co-parenting, single parenting, overcompensation, sorrow, custody fights, and much more.

Standing on My Own Two Feet: A Child's Affirmation of Love in the Midst of Divorce
by Tamara Schmitz

This book focuses on the preschool to first grader. The main points of this book are unconditional love and not being blamed for the divorce. Because of this book's positive attitude and easy-to-understand message, this book is an excellent choice for young children, and their parents.

Dinosaurs Divorce
by Marc Brown

Sometimes kids can express their feelings better through friendly, recognizable characters. Dinosaurs are beloved by most young kids, so when dinosaur-kids are going through difficult divorce situations, young readers can relate.
How to Parent with Your Ex: Working Together for Your Child's Best Interest
by Brette McWhorter Sember

With simple, commonsense advice, this book gives parents, both custodial and non-custodial, the tools they need to raise their children after a divisive divorce. The book encourages both sides of divorce to understand the other’s point of view. By focusing on the child, both parents are able to form a solid relationship with the child and maintain necessary, positive communication with the ex-spouse.


The Co-Parenting Survival Guide: Letting Go of Conflict after a Difficult Divorce
by Elizabeth Thayer Ph.D. & Jeffrey Zimmerman Ph.D.

Divorce is painful for everyone involved. However, when couples harbor resentment and anger toward each other, the children suffer even more. Too often arguments over visitation, holiday plans, and simple day-to-day events can send family's into chaos, pain, frustration, and very often acting-out in the child. This guide can help parents work through their conflict and come together for the children.

Rebuilding: When Your Relationship Ends
by Bruce Fisher

This book is written by a divorce therapist who uses a realistic, but comforting, look at the process of healing after a divorce.  This nineteen-step process walks you through the pain of the aftermath of divorce all the way to recovery. Many people say after they go through the process outlined in the book, they come out feeling better than they ever have.

The above are only some of the many books about divorce, separation and depression that you may find helpful. You should be able to find any of these books at your local library in Oakland County, Michigan.

Divorced Parents and Moving Out of Michigan

Many divorced parents with custody of children are considering moving out of Michigan in order to accept new employment. Many times these parents are required to move out of the state in order to find acceptable employment to support their families. This issue becomes complicated when it involves minor children and the parents share joint legal or physical custody. I recently discussed this issue with a friend whose ex-wife was planning to move from Rochester Hills, Michigan to Ohio.

In cases where the divorced parents share joint legal custody, which is true in almost all cases, any party moving more than 100 miles or out of Michigan, even if less than 100 miles, must obtain court approval before they are allowed to move. This includes the non-custodial parent, so that even if one is not have primary physical custody they must still obtain court approval before they move if they share joint legal custody.

The party that wishes to move, must basically show by a preponderance of the evidence, which in laymen’s terms means, a little more likely than not, that they have met statutory requirements.  This issue becomes even more complicated if the parents share joint physical custody of the child or the court decides that there is an established custodial environment with both parents.

If the parents share joint physical custody of a child, then after the court determines that a parent may move by a preponderance of evidence, the court must then make a decision regarding the change of custody. If the court finds that from the view of the children the move would change the custodial environment, then the court must make a decision regarding a change of custody.

The idea of a custodial environment means that even if the parents do not actually share physical custody the following problems regarding a change of custody may apply if over an appreciable period of time the child looks to both parents for love, affection, guidance and other similar types of parental support.

If the court finds that there is an established custodial environment with both parents as described above, the court will revisit the custody issue and the parent that wants to move must prove that it is in the child’s best interests to change custody by a clear and convincing evidence standard, which is significantly more stringent than the preponderance of evidence standard indicated above.

The best interests of the child is really a list of 11 different factors and a catch all phrase of any other factors that the court deems relevant. This may be very difficult for a parent to prove and if the parent does not, then despite the finding that the above factors have been met allowing the move, the court will change custody of the child to the parent that is not moving. This is true even where the child spent more time at the home of the parent that proposes the move so long as the court finds there is an established custodial environment with both parents. This may not seem fair to a parent that is moving because they cannot find employment, however, the focus is on the children, not the parent that is facing the hardship.

None of the above applies if the parents do not share joint legal custody. Unfortunately this means that if one is going through a divorce and there is a good reason to believe that they will have to move for employment or other reasons, it would be prudent to fight for sole legal custody for the parent that is contemplating such a move.

E-mail, Privacy and Divorce in Rochester Hills, Michigan. Tips for Avoiding Confrontation or Being Charged With a Crime

Reading a spouse’s e-mail and discovering information that might lead to a divorce has been considered a crime in Rochester Hills, Michigan by the Oakland County Prosecutor. An article by L.L. Brasier in the Detroit Free Press, December 28, 2010 reported this issue.


First, to those people that are engaged in some activity or communication of any type (including consulting with a divorce lawyer) of which they do not want their significant others or family members to have knowledge please read the following tips to avoid being discovered by your spouse.

• If you are going to communicate by e-mail, you should make sure to change passwords for the account frequently and not write the password down anywhere that your spouse has access.

• It is not a good idea to post anything negative about your spouse or an affair on Facebook or other social sites for many reasons. One reason is that if you post a comment and then someone that has your spouse as a “friend” in their Facebook account makes a comment about your comment then that will post both to your spouse’s (or ex-spouse’s) Facebook page.

• It is also not a good idea to text someone you do not want your spouse to know that you are contacting, take pictures on your phone of any activity that you do not want your spouse to see or even call someone that you do not want your spouse to know you have contacted. People often leave their mobile communication devices around where their spouse or significant other may have access to it and it is very easy to see what numbers have been called recently and redial any that seem suspicious.

Regarding the case above, I cannot tell you how often in my practice over the last fourteen years that I have heard of one married person reading their spouse’s e-mail, social networking site, mobile phone or even their mail after suspecting that they were having an affair.
In the above case the husband took the issue one step further and provided the letter to father of his wife’s child because the person with whom she was having an affair had reportedly beaten her in front of this child. This passing on of the information to the third party is probably what caused the prosecutor to even consider charging him. If it was merely a case of reading the e-mail and confronting his spouse, then there is really no way that this should have been a charge against him.

As it stands, it still seems somewhat ridiculous for the prosecutor to charge him with a crime, as the two lived together at the time, they both used the laptop computer that he used to obtain access to her email account, and the wife apparently left her passwords for different accounts in an unguarded notebook next to the computer. Further, the prosecutor has apparently charged him under a “hacking statute”, which seems unrelated to domestic relationships.

The temptation when someone has suspicion of extramarital activities to snoop in general or particularly to access the e-mail or Facebook account of their significant others is simply too great, especially where the person knows the password or the password is written down in an accessible spot. Charging this man with a crime really opens a massive can of worms that should be left shut. How many people that have gone through a divorce or are currently going through a divorce where this type of information was used against them are going to be contacting the prosecutor at this point and where does she draw the line?

Finally, if the prosecutor starts prosecuting these types of cases, then there are going to be very many people that are technically breaking the law when they access the e-mail or mobile phone of their spouse, possibly even in inadvertent or relatively innocent cases. For example, your spouse leaves his telephone at home open to his photo album and you look through the album expecting to see some nice pictures of your children, but instead you are confronted of him posing with a woman that you do not know. Does this make you guilty of a crime?

I do not recommend that anyone have an affair, however, it seems foolish to open oneself to this easy exposure by using the mobile telephone for any of the above activities. Think hard before engaging in this type of activity anyway, because the joy one may get from it may be short lasted and the damage that it may cause if discovered can be huge and irreparable. In Rochester Hills Michigan it appears that accessing your spouse’s e-mail or even their mobile phone may not only lead to divorce, but also to criminal charges.

Please visit my website for more information regarding divorce or family law at http://camerongoulding.com/default.aspx


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Changing Child Visitation (Parenting Time Modification) in Michigan Just Became Easier

Altering child visitation time (technically parenting time modification) just became easier in Michigan. Many judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things.


There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this issue directly. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010)which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody.

This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue.

In the Wright v Shade case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Wright v Shade is binding precedent.

Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed. One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent.

Cameron C. Goulding; Byers & Goulding, PLC

http://www.northoaklandmichigandivorcelawyer.com/