More and more people have substantial credit card debts, home equity lines, and/or second mortgages on a home. I see many divorces where the assets are less than the liabilities. This is a situation where there may have to be some creative financing. There may be the necessity for exploring bankruptcy. It may be a situation where some of the credit card companies will negotiate a reduction in debts if there is money to pay them off, assuming someone’s credit has already been hurt by the economy. These are all situations that are happening more and more frequently in our current economic mess.

Last, but not least, bear in mind that as you go through a divorce, creativity is more and more important now than it may have been three or four years ago when people had positive equities in their homes, substantial value in their IRAs, and 401Ks. They also had a belief in a secure job and economic future. Things are different now, and every case must be handled very delicately because of the horrible recession that we are going through, which quite frankly, is worse than any time since the Great Depression over 70 years ago.

Here at Gornbein Smith Peskin-Shepherd PLLC, we would be happy to answer any questions on cases regarding Divorce Law.

These are rapidly decreasing in value. In some cases where there are a lot of debts, and people want to avoid bankruptcy, it may make sense to take the husband’s 401K and/or IRA and roll it over to the wife, if she has an income. This way there are no penalties. She can then take the money out for payment of marital debts, and her taxes will be at a lower rate. These are things to carefully scrutinize in a divorce where there are substantial debts and it may be necessary to go into 401Ks or IRAs to pay them.

I recently had a first in my career where a client was laid off from General Motors, would not be eligible for his pension for approximately 10 more years, and found out that he was able to cash inthe pension for a fairly substantial amount of money based upon the present value of the future benefits. I had never heard of this before, and it may be an option worth exploring in certain cases. In this situation, you are going to be using the pension to pay off debts, and to give each of the parties some money to start rebuilding their lives. There will be no future pension if it is bought out now.

More and more cases involve marital homes that have negative equity. If your home has little or no equity, there are several decisions that have to be made in the divorce. First of all, do you keep the home? If there is the cash flow to do so, it may be wise to keep the home until the economy turns around. If you or your spouse cannot afford to keep the home, and are forced to sell it, try to work out a walk-away with the bank. This will depend on the economic circumstances of your divorce. Another possibility is a short sale. In a short sale, you may have to come up with cash or the bank may allow you to walk away. If you have a second mortgage, this will complicate the situation, and while you may be able to walk away from the first mortgage, the second mortgage or home equity line will put you into a situation where unless they are willing to negotiate on that as well, you may be stuck. Other possible options in these situations may be bankruptcy. This is where it is important to have sound legal advice for any marital property division.

In these tough economic time, it is critical to remember that if you have a judgment with non-modifiable spousal support, it means what it says. If you are in the midst of a divorce, and you have any type of job situation where there is a possibility of a reduction in pay or a loss of a job, do not agree to non-modifiable spousal support. By law, non-modifiable means non-modifiable. What can you do if you have entered into a judgment of divorce or settlement agreement where there is non-modifiable spousal support, and there has been a job loss, and you no longer have the ability to pay?

At a recent seminar, I discussed some of these issues and here are some recommendations. You can try to renegotiate with your former spouse. If there are other assets, you may be able to trade off some other property that you have received in return for buying out the spousal support or changing the amount of the spousal support. Another suggestoin is to lower and extend the payments. It might be possible to have a moratorium for awhile, as long as the payments are made at the end. If all else fails, and your former spouse takes you to court, you may have to throw yourself at the mercy of the judge, who may decide not to enforce it because of the impossibility of the situation. Judges are very aware of these tough economic times, and are looking at these issues very differently than they would have two or three years ago. Bear in mind that every situation is different, and it is imperative that you talk to an attorney specializing in family law.

Tough Economic times doesnt mean you have to choose between “getting by” or your responsibilities . There are steps that you can take to take care of your obligations without putting yourself in a more difficult position. In Michigan, there is no retroactive modification of child support by law. If you are about to lose your job, or suffer a loss in income, immediately contact the Friend of the Court where your divorce was to start modification proceedings. If you wait for several months, the support will continue at the same rate and you cannot have it modified on a retroactive basis. This is very important and this language is stated in every divorce judgment.

As divorce trials approach, the last hours before the court appearance can be filled with last minute negotiations and rounds of offers and counter-offers. Emotions between the divorcing couple run high, and it’s easy to lose sight of the big picture and the context of where things started. There’s a fine balance between taking on the other person’s perspective to get closer to settlement and making sure you maintain enough of your own perspective that you don’t settle for too little. The current offer must be weighed against the cost of extensive attorney fees for trial and the possibility that a mediated or trial settlement could be better or worse.

Sometimes finding creative ways to reframe divorce settlements can ease tensions. For example, a recent client’s husband found it more palatable to pay attorney fees directly rather than to her as property settlement for her attorney fees. Small shifts can make a big difference when feelings of anger, sadness, or uncertainly are involved. Although I was prepared to improve my client’s settlement, she and her husband came to agreement on our bottom line offer.

If you’re caught up in a last minute divorce settlement, remember to step back and take a deep breath. Remember that there is no sure settlement in court even though the current offer may fall short of your expectations. Weigh in on the costs of continued litigation with the financial reality of the result you seek – and the emotional impact on family members who are directly involved in the restructuring of your family, especially your children.

You can learn more in our Divorce FAQs section.

Alisa A. Peskin-Shepherd

The laws in the State of Michigan do not recognize either common law marriage or commitment ceremonies as same sex couples are not allowed to legally marry in Michigan. What happens when the couples who have lived together and co-mingled property without being marriaged, breakup? I have handled both types of situations in my practice.

Even though they are not divorce actions, and are not part of the family court, in certain situations there are legal remedies. I have had cases where people have co-mingled assets, have shared investments and have purchased real estate together. I have had other cases where there have been promises made but not kept. In these situations, there may be an action, based upon fraud or unjust enrichments, which are tort actions. They are based upon promises that are not kept or based upon situations where one person has invested a lot of money into real estate and the other person is saying, “forget it – you are entitled to little or nothing”.

As actions in tort for damages, based upon the lost of investment, loss of the use of funds, or unjust enrichment to the other party, a civil action can be filed and even a jury demand can be utilized which is unavailable in a divorce or other family law action. These cases go to the general docket and are not part of the family court.

In each of these cases, I have been able to successfully resolve them using one-person mediation, in one instance, with success. In the other instance, we went through facilitative mediation in the Circuit Court where a three-person mediation panel gave an award of monetary damages to my client who was suing the other party based upon fraud and unjust enrichment. These damages were then used as a basis for a settlement without the need to go to trial. These cases are unusual and require certain elements. I believe it is necessary that there be a long-term relationship. There must be investments made together or some type of promises which one party has relied on to his or her detriment. There must be some monetary losses which can be proven in a court of law that happened because of either a reliance on the other party or a reliance on the relationship. These are cases that must be handled on a case-by-case basis. It is important that you consult with an attorney who is experienced in family law and also understands some of the basic premises of fraud and unjust enrichment and/or breach of contract. These are interesting and unusual cases, and if you fall into any of these situations, it is important that you contact an attorney to discuss what remedies you might have, if any.

Here at Gornbein Smith Peskin-Shepherd PLLC, we would be happy to answer any questions on cases regarding same sex living arrangements or couples who have lived together without benefit of marriage.

9. Economic Pressures, especially in these very tough, economic times. People losing jobs, businesses failing, houses with negative equity, and 401Ks drastically being reduced are causing extreme emotional pressure on people.

8. People growing apart and going in different directions. The question that someone should ask is when the children are grown, is this someone you want to spend the rest of your life with? Do you share enough common interests? Will there be a bond to hold you together once you reach an age for retirement? What do you want to do with the rest of your life?

7. Alcohol problems. Alcoholism is a common cause of problems leading to divorce.

6. Drug related problems, including prescription drugs. I have seen more and more cases with not only drugs, such as marijuana and cocaine leading to divorce, but also addiction to Vicadin and other prescription drugs.

5. Gambling problems. Over the years I have seen people lose their jobs, their marriages, their homes, and their professions due to addiction to gambling.

4. Addiction to the internet. This includes people who are on hour after hour, whether it is for shopping, for e-mailing, or just constant searching online to the exclusion of everything else.

3. Addiction to pornography. Addition to pornography is more and more common, and I have seen many cases in my practice. This will often lead to the next issue, which is infidelity.

2. Infidelity. If someone has an affair, can it be forgiven? Can people move on and rebuild? These are questions. Counseling is often critical if there is infidelity.

1. A total inability to communicate. When two people are on different wave lengths, often from the beginning. Perhaps these are people who should never have gotten married in the first place.

Change of domicile is a matter that the courts in Michigan take very seriously. This is where one parent – normally the custodial parent – is seeking permission to leave the state and move to another state. In the past, it was very difficult to change domicile because the court’s want to keep both parents as close as possible to the children, even after a divorce. This blog is to raise the issue of whether or not, in view of the economy, judges are taking a more liberal approach and granting changes of domicile more easily than they might have a couple of years ago.

Change of domicile is a matter that the courts in Michigan take very seriously. This is where one parent – normally the custodial parent – is seeking permission to leave the state and move to another state. In the past, it was very difficult to change domicile because the court’s want to keep both parents as close as possible to the children, even after a divorce. This blog is to raise the issue of whether or not, in view of the economy, judges are taking a more liberal approach and granting changes of domicile more easily than they might have a couple of years ago.

It is the opinion of this writer that if a person has made a good faith effort to find a job in Michigan, cannot find employment in Michigan, and is able to find a job in another state, the courts will look more liberally towards a change of domicile. To be successful, the person must show an actual job in another state, not just that he or she is searching for employment out of Michigan. The person must show that he or she cannot find employment, or comparable employment here in Michigan.

In addition, the person must show that the schedule and move is not being done to take the children away from the other parent. The party must show that there will be very liberal parenting time or some reasonable schedule to make up for the loss of parenting time and the fact that you cannot have the same schedule if you are in another state that you can if you are living in close proximity here in Michigan.

The party also must show that there is clearly an economic betterment for the children if the move is allowed, which is part of the statutory and case law requirement. Other items should be developing a means of communication regularly by phone, using a video cam, and providing as much access between the other parent and the children if the move is granted. These are important considerations to think about.

During these trying economic times, where Michigan leads the country in the unemployment rate, I believe that judges are forced to be more lenient than they would have been a couple of years ago, as long as the requirements set forth in this article are met. This is something that should be discussed on a case by case basis. At Gornbein Smith Peskin-Shepherd PLLC, we are prepared to answer your questions and evaluate whether or not you have a legitimate case and a reasonable basis for either trying to move out of state, or defending a change of domicile situation. This is an area where the economy has definitely had an impact.

In my practice, I refer clients who come to me for a possible divorce to counseling for three reasons.

1. The first reason for marriage counseling is to see if the marriage can be saved.

I recommend that in all situations because there are many cases where people have drifted apart, and through counseling with an independent, objective third party who is trained as a marriage counselor or therapist, the lines of communication can often be re-established. Through effective counseling, if people are really willing to work at it, the issues that led to a possible divorce can be resolved and people can build a stronger relationship to move forward in the future as husband and wife.

2. The second reason is for a support system. Anyone going through a divorce needs as much support as possible. Having a counselor, who could be a psychologist, social worker, or psychiatrist, can be a means of venting, helping you clear your thoughts, and providing you support as you go through one of the most traumatic times in your life. As far as life-altering events, a divorce is the third most traumatic, with the most traumatic being the death of a child. Second is the death of a spouse in an in-tact marriage. It is important not only to have a therapist working with you, but also to have the support of friends and relatives, because a divorce is a very difficult time in your life.

3. The third and final reason for therapy during a divorce is so that you can learn more about yourself, and hopefully not make the same mistake again. I’ve learned over the many years of my practice as an expert and specialist in family law, that people tend to repeat their mistakes. Someone who was married to an abusive spouse, and does not have therapy, will marry an abusive spouse again. Someone who is married to an alcoholic or someone with certain types of personality problems, tends to gravitate towards the same type of individual.

In my career, I represented two women who were each 36 years of age when I handled their sixth divorce. Clearly, these were two women who tended to repeat their mistakes again and again. One of the women remarried for a seventh time, and came back to me wanting a divorce. We had gotten to know each other fairly well and I asked her why, and she said, because she had fallen in love with someone else. I said, why don’t you work this through and not get a divorce, because her husband wanted to save the marriage. She said no, she had to follow her heart. She did. I obtained divorce number seven for her, and a year or so later, she contacted me to say that I was right, and she was back living with husband number seven, but had decided not to get married, but just live together.

Clearly, knowing who you are, having appropriate therapy can help anyone to grow and move forward in a fashion that he or she will not repeat the mistakes that led to a divorce. These are simple tips, and part of the approach that we use at Gornbein Smith Peskin-Shepherd, where we try and encourage people to go into therapy or counseling for all of the aforementioned reasons.