Friday, September 17, 2010
Abandonment & Divorce – Legally Speaking
I have been a divorce lawyer in Oakland County Michigan for many years and over the years I have often been asked at the initial meeting “Will I face abandonment issues in my divorce because I moved out of the home or if I move out of the home?”
Fortunately, unlike many issues in divorce, there is a simple answer to this Question. No, you will not. This is true in Michigan and it should be true in any “No-fault” divorce state if you do not live in Michigan.
The explanation is a little more complicated and involves a little history in Michigan Family or Divorce Law. Until the 1970’s, Michigan law required a person that had to get divorced to state a specific reason for the divorce, such as abuse or abandonment on the record. If the person did not state a sufficient reason, the judge could deny the person a divorce. This caused unnecessary embarrassment, humiliation and other more serious issues to innocent people that needed to get divorced.
Abandonment or desertion, as it was technically called in Michigan, was repealed as a basis for divorce when Michigan instated the “No-Fault” rules for Divorce. The statute repealing Abandonment or Desertion as a grounds for divorce in Michigan is MCL §552.9d. (You may review this statute at http://legislature.mi.gov/doc.aspx?mcl-552-9d.)
Michigan no longer requires a person to state specific grounds for divorce. Typically a person recites the phrase “there has been a breakdown of the marital relationship to the extent that the bonds of matrimony have been destroyed” and this is sufficient. Desertion of a minor child is still a felony in Michigan however this really has no relation to the question as posed in relation to a divorce, where one party has moved or plans to move out of the house. The felony non-support statute in Michigan is MCL §750.164. (You may review this statute at http://legislature.mi.gov/doc.aspx?mcl-750-161.)
I do offer the following advice as an experienced litigator, attorney, divorce lawyer and compassionate human being to those who ask me the Abandonment question.
You should continue to pay the bills and support your children as you did during the marriage after you or your spouse move out of the home. For example, if you each paid certain bills, you should continue to pay the bills for which you have been responsible. Let your spouse know that you are paying those bills and you anticipate that they will continue to pay the other bills they have paid. If each of you puts money into an account and the bills are paid out of that account, you should continue to do that absent another agreement however if you are not the party that has been in “control of the checkbook” then I highly suggest that you speak to your spouse about dividing up the bills and opening separate accounts, to allow yourself the ability to open your own bank account and have some control over your own finances. Please contact me to discuss this strategy and why it is very important to do this before you or your spouse file for divorce if you can.
If you cannot pay your bills, that is an issue that you should discuss with a financial advisor, credit advisor or bankruptcy attorney, depending on the extent of the issue. I would be happy to refer you to a trusted financial advisor, credit advisor or bankruptcy attorney if you contact me online at http://camerongoulding.com/contactus.aspx. Who knows getting your financial issues in order may help your marital issues and should certainly reduce the horrible stress and anxiety that you must be facing.
Fortunately, unlike many issues in divorce, there is a simple answer to this Question. No, you will not. This is true in Michigan and it should be true in any “No-fault” divorce state if you do not live in Michigan.
The explanation is a little more complicated and involves a little history in Michigan Family or Divorce Law. Until the 1970’s, Michigan law required a person that had to get divorced to state a specific reason for the divorce, such as abuse or abandonment on the record. If the person did not state a sufficient reason, the judge could deny the person a divorce. This caused unnecessary embarrassment, humiliation and other more serious issues to innocent people that needed to get divorced.
Abandonment or desertion, as it was technically called in Michigan, was repealed as a basis for divorce when Michigan instated the “No-Fault” rules for Divorce. The statute repealing Abandonment or Desertion as a grounds for divorce in Michigan is MCL §552.9d. (You may review this statute at http://legislature.mi.gov/doc.aspx?mcl-552-9d.)
Michigan no longer requires a person to state specific grounds for divorce. Typically a person recites the phrase “there has been a breakdown of the marital relationship to the extent that the bonds of matrimony have been destroyed” and this is sufficient. Desertion of a minor child is still a felony in Michigan however this really has no relation to the question as posed in relation to a divorce, where one party has moved or plans to move out of the house. The felony non-support statute in Michigan is MCL §750.164. (You may review this statute at http://legislature.mi.gov/doc.aspx?mcl-750-161.)
I do offer the following advice as an experienced litigator, attorney, divorce lawyer and compassionate human being to those who ask me the Abandonment question.
You should continue to pay the bills and support your children as you did during the marriage after you or your spouse move out of the home. For example, if you each paid certain bills, you should continue to pay the bills for which you have been responsible. Let your spouse know that you are paying those bills and you anticipate that they will continue to pay the other bills they have paid. If each of you puts money into an account and the bills are paid out of that account, you should continue to do that absent another agreement however if you are not the party that has been in “control of the checkbook” then I highly suggest that you speak to your spouse about dividing up the bills and opening separate accounts, to allow yourself the ability to open your own bank account and have some control over your own finances. Please contact me to discuss this strategy and why it is very important to do this before you or your spouse file for divorce if you can.
If you cannot pay your bills, that is an issue that you should discuss with a financial advisor, credit advisor or bankruptcy attorney, depending on the extent of the issue. I would be happy to refer you to a trusted financial advisor, credit advisor or bankruptcy attorney if you contact me online at http://camerongoulding.com/contactus.aspx. Who knows getting your financial issues in order may help your marital issues and should certainly reduce the horrible stress and anxiety that you must be facing.
Wednesday, September 8, 2010
Alimony Termination - The Three Rules of Cohabitation
Are you receiving or paying alimony or spousal support? Are you or your ex-husband or ex-wife “living with” a boyfriend or girlfriend? Then termination of spousal support or alimony due to cohabitation may be an issue for you.
Many judgments of divorce that include payment of alimony or spousal support include language that the alimony or spousal support will terminate if the payee (the ex-spouse receiving support) cohabits with another person of the opposite sex.
If your judgment of divorce contains this term, cohabit or cohabitation, and it does not define what that term actually means, then, in the State of Michigan, a divorce court will look at the following three factors to determine whether or not you may be able to terminate your alimony obligation or lose your right to the spousal support awarded to you:
1. The divorce court will consider the living arrangements of the couple and the extent to which they share a common residence. The divorce court will focus on factors such as whether both keep personal items such as clothes and toiletries at the residence and how long they have been doing so.
2. The divorce court will consider the couple’s personal relationship and whether it appears relatively permanent. The divorce court will look at such factors as whether the couple engages in sexual relations, vacation or spend holidays together, are monogamous and whether or not marriage has been contemplated.
3. The divorce court will consider the couple’s financial arrangements. The divorce court will look at such factors as whether the couple share expenses or whether one party supports the other.
The divorce court should not focus on any one of these factors but review the totality of the circumstances of each particular case.
If the above factors apply to you or your ex-spouse, then you should be aware that you may file a motion or your ex-spouse may file a motion to terminate alimony or spousal support. If you would like more information, please contact me to schedule an appointment at (248) 340-0900, the first half-hour is complementary or I will answer one question posted to the Contact Us page at my website http://www.camerongoulding.com/
Many judgments of divorce that include payment of alimony or spousal support include language that the alimony or spousal support will terminate if the payee (the ex-spouse receiving support) cohabits with another person of the opposite sex.
If your judgment of divorce contains this term, cohabit or cohabitation, and it does not define what that term actually means, then, in the State of Michigan, a divorce court will look at the following three factors to determine whether or not you may be able to terminate your alimony obligation or lose your right to the spousal support awarded to you:
1. The divorce court will consider the living arrangements of the couple and the extent to which they share a common residence. The divorce court will focus on factors such as whether both keep personal items such as clothes and toiletries at the residence and how long they have been doing so.
2. The divorce court will consider the couple’s personal relationship and whether it appears relatively permanent. The divorce court will look at such factors as whether the couple engages in sexual relations, vacation or spend holidays together, are monogamous and whether or not marriage has been contemplated.
3. The divorce court will consider the couple’s financial arrangements. The divorce court will look at such factors as whether the couple share expenses or whether one party supports the other.
The divorce court should not focus on any one of these factors but review the totality of the circumstances of each particular case.
If the above factors apply to you or your ex-spouse, then you should be aware that you may file a motion or your ex-spouse may file a motion to terminate alimony or spousal support. If you would like more information, please contact me to schedule an appointment at (248) 340-0900, the first half-hour is complementary or I will answer one question posted to the Contact Us page at my website http://www.camerongoulding.com/
Wednesday, August 25, 2010
Tuesday, August 24, 2010
Michael & Diandra Douglas: why greed, anger and revenge have no place in Oakland County Divorce Courts
I read in the New York Post online edition today that Michael and Diandra Douglas are once again back in a family law court, this time in New York. This unfortunate couple filed for divorce in California over ten years ago, however, this week, Diandra filed a motion in the New York divorce courts seeking half of Michael's share of the proceeds of his most recent film which is set to release in September. Ten years later and she still wants half, how can this be?
Legally, it is simple. Basically, in California (as in Oakland County Michigan, even though we are not a community property state) any income earned through the actions of one spouse during the marriage is considered joint income of the married parties. In addition, any property rights obtained through the work of either parties during the marriage is considered to be a marital property right. In the Douglas's case, it appears that Michal Douglas entered into the contract for the movie "Wall street" (a classic) and performed the role of "Gordon Gekko" while he was married to Diandra. Therefore, she was entitled to fifty percent of the proceeds from that movie.
The judgment of divorce then dictates how parties to a divorce will divide all of the income, assets and property rights earned during the marriage. This is the tricky part. Apparently, Diandra's attorneys must have included in the judgment a fifty percent share of Michael's contractual right to any "residuals, merchandising and ancillary rights" to the original movie "Wall Street". The new movie is a sequel and that's the rub. The judge in New York must now read the judgment, listen to argument and determine whether Michael and Diandra intended to include a sequel in the list of rights that she obtained to "Wall Street".
There are two lessons to be learned in this sad tale. First, the importance of a well crafted judgment of divorce that includes all foreseeable possible future issues cannot be underestimated. It is imperative to have an attorney draft this document in an exhaustive and meticulous manner, because often, as in the Douglas case, when parties continue to antagonize one another after the divorce, the decision will ultimately come down to the wording of the judgment.
The attorneys may have been able to avoid this issue by stating exactly what rights she has and what rights she does not have regarding each of his projects. For instance, according to the article, the parties argued about "spin-offs" in court as opposed to "sequels". If this is true, Michael's attorneys probably should have specifically included language stating that rights to spin-offs are included but sequels are not included. This open loop allows Diandra to get her foot in the door and proceed with legal argument. This could be an extremely expensive error for Michael if he indeed did not intend to grant the rights to sequels in the judgment of divorce.
The second issue is that this case has a byline, Michael and Diandra have a son that is now in his twenties. He is allegedly a drug dealer and has been convicted of drug related offenses. During the hearings seeking leniency for his son in recent months, Michael could not help himself, he took the opportunity to besmearch his ex-wife, blame her for their son's problems and denigrate her parenting skills in open court. This is obviously inappropriate testimony at his son's sentencing, however, Diandra made outrageous claims against Michael during the original divorce case which made him out to look like a sexual deviant. In addition, it appears that she has used the divorce court system in an attempt to punish, humiliate and extort Michael.
The point is that both of these parties started out on the wrong note and carried forward this cacophony together. They brought their anger and sense of need for vindication into court and used the courts to attempt to punish the other party and release their anger against the other party, which creates a vicious cycle indeed. Frankly, in most cases most judge (in Oakland County divorce cases at least) do not put much weight on the many wrongs that parties have committed against one another, therefore, all this serves to do is fan the flames of litigation, which in turn prolongs the proceedings and has horribly negative effects on the parties' health, finances, welfare and most importantly, their children.
Perhaps this ten year saga of misery could have been avoided. Is she had not started out trying to create scandal and misfortune or to punish him in court, or if he had decided not to hold onto his anger as shown by his recent statements at the leniency hearing, maybe they would not be in court in New York now interpreting the technical meaning of terms their attorneys put together for them in California a decade ago.
I am Cameron C. Goulding, a divorce lawyer practicing in North Oakland County Michigan for over fourteen years, for more information or to contact me please visit my website http://www.camerongoulding.com/ or call for an appointment at (248) 340-0900. I provide the highest caliber family law services to Rochester, Rochester Hills, Bloomfield, Troy, Lake Orion, Oxford, Waterford and the surrounding communities in Macomb and Genesee.
Legally, it is simple. Basically, in California (as in Oakland County Michigan, even though we are not a community property state) any income earned through the actions of one spouse during the marriage is considered joint income of the married parties. In addition, any property rights obtained through the work of either parties during the marriage is considered to be a marital property right. In the Douglas's case, it appears that Michal Douglas entered into the contract for the movie "Wall street" (a classic) and performed the role of "Gordon Gekko" while he was married to Diandra. Therefore, she was entitled to fifty percent of the proceeds from that movie.
The judgment of divorce then dictates how parties to a divorce will divide all of the income, assets and property rights earned during the marriage. This is the tricky part. Apparently, Diandra's attorneys must have included in the judgment a fifty percent share of Michael's contractual right to any "residuals, merchandising and ancillary rights" to the original movie "Wall Street". The new movie is a sequel and that's the rub. The judge in New York must now read the judgment, listen to argument and determine whether Michael and Diandra intended to include a sequel in the list of rights that she obtained to "Wall Street".
There are two lessons to be learned in this sad tale. First, the importance of a well crafted judgment of divorce that includes all foreseeable possible future issues cannot be underestimated. It is imperative to have an attorney draft this document in an exhaustive and meticulous manner, because often, as in the Douglas case, when parties continue to antagonize one another after the divorce, the decision will ultimately come down to the wording of the judgment.
The attorneys may have been able to avoid this issue by stating exactly what rights she has and what rights she does not have regarding each of his projects. For instance, according to the article, the parties argued about "spin-offs" in court as opposed to "sequels". If this is true, Michael's attorneys probably should have specifically included language stating that rights to spin-offs are included but sequels are not included. This open loop allows Diandra to get her foot in the door and proceed with legal argument. This could be an extremely expensive error for Michael if he indeed did not intend to grant the rights to sequels in the judgment of divorce.
The second issue is that this case has a byline, Michael and Diandra have a son that is now in his twenties. He is allegedly a drug dealer and has been convicted of drug related offenses. During the hearings seeking leniency for his son in recent months, Michael could not help himself, he took the opportunity to besmearch his ex-wife, blame her for their son's problems and denigrate her parenting skills in open court. This is obviously inappropriate testimony at his son's sentencing, however, Diandra made outrageous claims against Michael during the original divorce case which made him out to look like a sexual deviant. In addition, it appears that she has used the divorce court system in an attempt to punish, humiliate and extort Michael.
The point is that both of these parties started out on the wrong note and carried forward this cacophony together. They brought their anger and sense of need for vindication into court and used the courts to attempt to punish the other party and release their anger against the other party, which creates a vicious cycle indeed. Frankly, in most cases most judge (in Oakland County divorce cases at least) do not put much weight on the many wrongs that parties have committed against one another, therefore, all this serves to do is fan the flames of litigation, which in turn prolongs the proceedings and has horribly negative effects on the parties' health, finances, welfare and most importantly, their children.
Perhaps this ten year saga of misery could have been avoided. Is she had not started out trying to create scandal and misfortune or to punish him in court, or if he had decided not to hold onto his anger as shown by his recent statements at the leniency hearing, maybe they would not be in court in New York now interpreting the technical meaning of terms their attorneys put together for them in California a decade ago.
I am Cameron C. Goulding, a divorce lawyer practicing in North Oakland County Michigan for over fourteen years, for more information or to contact me please visit my website http://www.camerongoulding.com/ or call for an appointment at (248) 340-0900. I provide the highest caliber family law services to Rochester, Rochester Hills, Bloomfield, Troy, Lake Orion, Oxford, Waterford and the surrounding communities in Macomb and Genesee.
Thursday, June 11, 2009
Prenuptial Agreements: The Five Requirements + Forseeability
In a recent case, Reed v Reed, the Michigan Appellate Court made a decision that strengthened the enforceability of prenuptial agreements especially in long-term marriages.
Before Reed, there were five basic factors to determine whether a prenuptial agreement is enforceable:
1. Was the agreement obtained through fraud, duress or mistake?
2. Was the agreement unconscionable/unfair when signed?
3. Have the facts and circumstances changed since then so as to make it unfair and unreasonable?
4. Did both parties enter into the agreement voluntarily?
5. Did both parties disclose all assets and facts before signing the agreement?
In enforcing prenuptial agreements in long-term marriages, the Courts have typically found that the facts and circumstances had changed since the date of the agreement and refused to enforce them.
This has been generally true until the case of Reed v Reed. Mr. and Mrs. Reed married in 1975. When they married, Mr. Reed was in law school and Mrs. Reed was studying for her degree in business. They had approximately $20,000 worth of assets.
Mr. and Mrs. Reed were married for thirty years. During the marriage, they accumulated several million dollars worth of assets. They shared some of their assets and bank accounts jointly and titled other assets and bank accounts in their own names.
The trial court decided not to enforce the agreement. The trial court believed that it would be unfair to enforce the agreement at the time of the divorce based upon the length of the marriage and the accumulation of assets.
The Appellate Court disagreed with the trial court and ordered the trial court to enforce the agreement despite the length of the marriage and the accumulation of assets.
The Appellate Court included an element of "foreseeability." It indicated that at the time of the agreement, it was foreseeable that the parties may accumulate significant wealth and that a long-term marriage was as foreseeable (and actually what most people hope for) as a short-term marriage.
The court indicated that because of the "foreseeability" of the long-term marriage and accumulation of assets, enforceability was fair. It indicated that Mr. and Mrs. Reed could have foreseen the long marriage and accumulation of assets when they entered into the agreement.
The Court stated a very strong preference for upholding prenuptial agreements. It stated that the parties to the prenuptial agreement had "agreed to be captains of their own financial ship and to decide their own destiny." Therefore, if a future event is foreseeable, it is not a change that would make enforcement unfair.
This decision has strengthened the enforceability of prenuptial agreements, especially in long-term marriages. If parties that are marrying would like to maintain their own separate assets and income into the future, it appears that prenuptial agreements are a very strong way to do so.
In writing a prenuptial or making changes to one, both people should be represented by an attorney due to the serious effects it will have on their rights. Prenuptials are particularly important for small/family business owners or partners.
I am Cameron C. Goulding, a North Oakland County Divorce Lawyer, serving primarily Rochester, Rochester Hills, Bloomfield, Troy, Lake Orion and Oxford for over fourteen years. For more information or to contact me please visit my website at http://www.camerongoulding.com/ or call my office at (248) 340-0900.
Before Reed, there were five basic factors to determine whether a prenuptial agreement is enforceable:
1. Was the agreement obtained through fraud, duress or mistake?
2. Was the agreement unconscionable/unfair when signed?
3. Have the facts and circumstances changed since then so as to make it unfair and unreasonable?
4. Did both parties enter into the agreement voluntarily?
5. Did both parties disclose all assets and facts before signing the agreement?
In enforcing prenuptial agreements in long-term marriages, the Courts have typically found that the facts and circumstances had changed since the date of the agreement and refused to enforce them.
This has been generally true until the case of Reed v Reed. Mr. and Mrs. Reed married in 1975. When they married, Mr. Reed was in law school and Mrs. Reed was studying for her degree in business. They had approximately $20,000 worth of assets.
Mr. and Mrs. Reed were married for thirty years. During the marriage, they accumulated several million dollars worth of assets. They shared some of their assets and bank accounts jointly and titled other assets and bank accounts in their own names.
The trial court decided not to enforce the agreement. The trial court believed that it would be unfair to enforce the agreement at the time of the divorce based upon the length of the marriage and the accumulation of assets.
The Appellate Court disagreed with the trial court and ordered the trial court to enforce the agreement despite the length of the marriage and the accumulation of assets.
The Appellate Court included an element of "foreseeability." It indicated that at the time of the agreement, it was foreseeable that the parties may accumulate significant wealth and that a long-term marriage was as foreseeable (and actually what most people hope for) as a short-term marriage.
The court indicated that because of the "foreseeability" of the long-term marriage and accumulation of assets, enforceability was fair. It indicated that Mr. and Mrs. Reed could have foreseen the long marriage and accumulation of assets when they entered into the agreement.
The Court stated a very strong preference for upholding prenuptial agreements. It stated that the parties to the prenuptial agreement had "agreed to be captains of their own financial ship and to decide their own destiny." Therefore, if a future event is foreseeable, it is not a change that would make enforcement unfair.
This decision has strengthened the enforceability of prenuptial agreements, especially in long-term marriages. If parties that are marrying would like to maintain their own separate assets and income into the future, it appears that prenuptial agreements are a very strong way to do so.
In writing a prenuptial or making changes to one, both people should be represented by an attorney due to the serious effects it will have on their rights. Prenuptials are particularly important for small/family business owners or partners.
I am Cameron C. Goulding, a North Oakland County Divorce Lawyer, serving primarily Rochester, Rochester Hills, Bloomfield, Troy, Lake Orion and Oxford for over fourteen years. For more information or to contact me please visit my website at http://www.camerongoulding.com/ or call my office at (248) 340-0900.
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