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.

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.

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.

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.

9. In many cases, especially where there are not a lot of complicated assets, parties will avoid formal discovery and just exchange affidavits, listing assets and liabilities with documentation. This is under oath, and does provide some protection.

8. In most divorces, interrogatories are filed. These are questions covering assets, liabilities, and any other issues such as employment, health, and anything that is relevant to the case. In Michigan, these must be answered within 28 days under oath.

7. Requests to Admit – This is a tool which requires admissions or denials of key facts and issues in a given divorce case. This can be a very effective technique in certain situations.

6. A Notice to Produce – This is a requirement that certain documents have to be produced by the opposing party within 28 days.

5. Subpoenas – These are documents that are sent to an employer, a bank, phone company, etc. to require that bank accounts, records, retirement accounts, wage or pension information, be supplied to determine assets and liabilities. They can also be used in certain situations such as phone records or text messages, where fault is an issue, such as an extra-marital affair.

4. Depositions – These are proceedings where testimony is taken under oath at an attorney’s office with a court reporter present for discovery of assets and liabilities, or any other relevant issue in a divorce or other type of case.

3. Often where there is a business, professional practice, real estate, or other asset, there will be an expert such as a business appraiser, CPA who specialize in this area, real estate appraiser or other expert, to assist in determining the assets value which can be a key issue in a divorce.

2. In some cases where there are complicated issues regarding discovery and assets, a judge can appoint a discovery master who is an attorney who is brought in to oversee and make rulings on contested discovery issues.

1. Last, but not least, in some cases motions must be filed to compel cooperation by the other party regarding discovery issues. For example, if interrogatories have not been answered in a timely matter, or have not been fully answered, there may be a motion to compel. The same can be said for requirement of someone to appear at a deposition, or other discovery issue. In that situation, the court can compel the discovery and actually assess court costs and attorney fees if someone is being unreasonable with regard to failing to provide responsive answers to discovery requests. It is important to talk to your attorney and make sure that the appropriate discovery is done for your needs. In some cases, a minimum is all that is required and in other cases, you need very extensive and sometimes protracted and expensive discovery.

I have found over the years that divorces are both legal and psychological. The legal divorce is the part handled by an attorney where we handle issues including child custody, parenting time, child support, medical expenses, spousal support, property issues such as a home, savings, investments, debts, pensions, and 401Ks, along with tax issues.

Equally important to the legal divorce, is the psychological divorce. I have found over the years that the psychological divorce can occur at one of three points, if at all. In many cases, one person has become psychologically divorced from his or her spouse and is ready to move on. Often this is the person who files first, though not always. I have many cases where the person who wants out, whether because of issues involving another man or another woman, alcohol, sometimes violence, or drugs, will push the other spouse to the point where he or she has to file. Then the person who really wanted out, will say to friends or relatives, “I didn’t want this; look at what he/she is doing to me.” This is all psychological manipulation. If both spouses have psychologically reached a point that the marriage is over, and they have achieved a psychological divorce, then the legal process is very, very simple, because both parties want out and both parties are prepared to move on.

The second situation is one where the psychological divorce does not occur on the part of at least one of the parties until the litigation has been going on for awhile. These are the cases where there are often court appearances, and arguments over interim support, payment of bills, status quo, parenting time arrangements, disputes over custody, and many issues that create more legal battles than necessary because one or both parties have not reached a psychological point where they are ready to get divorced and let go.

The final, and worst situation, is where one or both parties never moves on, and through love or hate, they want to keep fighting over the years, with battles over custody, parenting time, support related issues, and even property issues that go on years after the divorce has become final, because someone cannot let go. These are the most high conflict situations. They are nightmares where people go through numerous court appearances, often many attorneys, spending thousands and thousands of dollars, to just beat each other senseless, because one or both parties cannot move on and start healing and rebuilding his or her life.

I believe that we as attorneys should look at our cases not only legally, but also think of the psychological dynamics, and this is important for clients to look at as well. This is another reason why counseling and interventions from outsiders such as therapists, or in some situations, a parenting coordinator or guardian of the children, becomes necessary. Every situation is different, and these are some general guidelines and thoughts based upon my many years of observation as a practitioner in the area of divorce, child custody, and other family law related matters.

In these tough economic times, where people are trying to save money and want to have an amicable divorce, an excellent way to do this is through a pre-divorce mediation package. I have handled several of these successfully, and would like to explain how it works.

Both the husband and wife meet with an attorney who specializes in family law and is also certified as a mediator, as are all of the attorneys at Gornbein Smith Peskin-Shepherd. An agreement is reached at the first meeting that the attorney will be acting as a mediator and will not be representing either the husband or wife in the divorce. The role of the attorney will be to meet with the parties to cover all issues in the divorce in an effort to help them resolve everything in an amicable fashion.

Normally, the way I do this, is to have a meeting, have an agreement drawn up with the understanding that I, as the attorney, will be acting solely as a mediator, cannot represent either one of them, and will work with them to cover all issues in an amicable fashion through a series of meetings. I then will outline in detail the key issues in any divorce. These consist of child related issues including custody and parenting time. They include child support, medical insurance, medical expenses, spousal support/alimony, and division of property. The division of property will include the marital home, any savings, investments, 401Ks, pensions, automobiles, personal property, and any other assets. It will also include, especially in these tough economic times, how debts are to be handled, including credit cards, home equity lines, and the mortgage if the house has a negative equity.

Each party is given homework to come up with lists of all assets and liabilities, an affidavit is prepared so that there is protection as far as having everything under oath regarding assets and liabilities. Through a series of meetings every one of the issues in a divorce will be discussed in an effort to resolve them.

If a resolution becomes impossible through mediation, then the mediator steps out of the case, and the parties would then retain attorneys to litigate in a more traditional fashion. In the event that the mediation works, and every issue is resolved, then a settlement agreement is drafted. I ask that each party have the settlement agreement reviewed by an attorney of each party’s choosing. I have handled cases where we have pre-packaged everything, and I have drafted pleadings for each party to appear In Pro Per (without attorneys), where a Complaint is drafted, a proposed property settlement and Judgment are drafted, and these are all reviewed by independent counsel.

The parties then go through the system without the need for attorneys or additional expense, other than the normal divorce filing fees, while I act as a neutral mediator monitoring them through the system, again with the understanding that all documents are to be reviewed by independent attorneys of husband and wife’s own choice. I have found that this is an effective means of resolving a divorce where people are trying to handle things in a very simple and amicable, cost-effective fashion. In this economy, this is a way to get divorced while minimizing the legal cost, the emotional cost, along with the time spent in the legal system, with court appearances being kept to a minimum.

Here at Gornbein Smith Peskin-Shepherd, we will be glad to answer any questions with regard to a pre-divorce mediation package.

9. Call your attorney, but not every day.

8. Communicate with your attorney by e-mail, but don’t abuse it.

7. Of course you can communicate with your attorney by fax.

6. Communicate by snail-mail. Bear in mind that this is a good way to communicate if there are several issues to be raised, but it is also a slow way to do so.

5. In communicating with your attorney, to save time and money, keep track of issues and raise several issues or questions at once, rather than calling or e-mailing on a daily basis with every issue.

4. Make sure that your communications are responded to. Whether they are phone calls, e-mails, letters, or faxes, you deserve a response.

3. If you have questions or issues, don’t be bashful. Remember that your attorney is working for you. If you have a concern about an issue in your case, raise it. Communication is a two-way street, and it is important to communicate. You deserve answers. You deserve to know what is going on. You deserve to know what strategies are being raised. If there are issues that you have questions about, you deserve answers. They should all be in a timely fashion. There was once a study done with regard to phone calls and messages, and when a client reasonably expected a return call. The possible answers were: immediately, within two hours, within four hours, by the end of the day, within 24 hours, or whenever. The correct response was within three hours.

2. Trust is important. Having confidence in your attorney is important. Through communication and feeling that your attorney has your best interests at heart, this trust needs to be established. It is important to feel that you are not just a number, but are very important to your attorney because what you are going through in a divorce, child custody, or other family law related matter, is one of the most important situations in your life.

1. Meet with your attorney. Face to face communication is critical. At the initial consultation, this is how you establish a rapport. This is how you decide whether or not you are going to retain a particular attorney. Don’t hesitate to ask questions. Don’t hesitate to take notes. Make sure that before you retain an attorney, that this is the person who you will entrust one of the most important times in your life to. Don’t hesitate to have regular meetings so that you can make sure that you are both on the same wavelength, and are doing things and working together. You and your attorney are part of a team, and this is important.