Friday, July 30, 2010

Legals on the links

As seen on the front page of the Detroit Legal News on July 27, 2010:

Photo by John Meiu

The Wayne County Family Law Bar Association held a golf outing July 22, 2010. Among those in attendance were the association's executive board members Lynn Sirich of Miller Canfield, Carol Breitmeyer of Hickey, Cianciolo, Fishman & Finn PC and Ann Tobin of Ann M. Tobin PC along with the Honorable Connie Marie Kelley of the Wayne County Circuit Court.

Wednesday, July 28, 2010

Michigan: Divorce v. Legal Separation

By: Kathryn M. Cushman

Under Michigan law, there is no such thing as "legal separation" in those specific terms. Instead, we have what is known as an action for separate maintenance.

The grounds for obtaining an Judgment of Separate Maintenance are the same as divorce. A party must allege that "there has been a breakdown of the marriage relationship to the extent that the bonds of matrimony have been destroyed and there is no reason to believe that the marriage can be preserved." The process mirrors the divorce process in that the court will divide the marital estate and even determine custody, parenting time, child support and spousal support. However, a Judgment of Separate Maintenance will not end the marriage. This is the primary difference between separate maintenance and divorce. It will be necessary for the parties to get divorced if they want to remarry.

What are the reasons for wanting a Judgment of Separate Maintenance versus a divorce? There are limited reasons. Perhaps there are religious or moral reasons which would prevent one from wanting a divorce or health care reasons for why someone would want to stay legally married so that they can remain covered by their spouse's health insurance.

For answers to your specific questions regarding separate maintenance and/or divorce, contact us.

Wednesday, July 21, 2010

Gays: Breaking Up is Hard to Do

By: Carole L. Chiamp

Prominent Michigan family law attorney Carole L. Chiamp, who is of counsel to our firm, is a family law court-approved mediator. She is among the first attorneys in Michigan to obtain this designation. She currently authors a monthly article in the Michigan Family Law Journal entitled "Mediation Matters." Carole's June/July 2010 article focuses on gay couples and the unique challenges that they face in the event that they part ways.

Long term gay couples face challenges that are distinctly different from those of straight couples. In fact, these challenges are so many and diverse as to make it impossible to describe in a short article. My hope is that we begin to discuss these issues. As a mediator, the best place to start is to learn applicable law regarding such couples in your jurisdiction. Come to terms with your own biases and change your attitude, if necessary.

Michigan law does not recognize same-sex marriages, so the laws of divorce and dissolution of marriage do not apply in these relationships.

In Michigan, very little, if anything, can be done in a court to assist this couple to resolve their serious problems. Straight couples can use the law but same-sex couple relationships are treated badly, if at all, by the courts. What is the couple to do? The best they can hope for is that the courts will treat their relationship relative to property as a failed partnership: a business partnership. There are no rights of spousal support, parenting, pension or other protections. It could even be that this couple will end up with one action in family court to deal with custody and another in civil court to divide property. Both courts present hard challenges.

One solution would be to mediate. An added problem for this couple is to find a mediator with knowledge of issues and concerns unique to the population, while understanding that differences between same-sex and straight couples, does not necessarily alter the basic mediation process. How mediators deal with same-sex couples often means trying to figure out what a court would decide. Participants in mediation, however, are free to make agreements that go beyond legal prescriptions, as long as they do not contravene specific legal prohibitions.

Read the entire article here.

The "Mediation Matters" archives can be found here.

Sunday, July 18, 2010

Divorce in Michigan: Does it matter who files first?

By: Kathryn M. Cushman

When filing for divorce in Michigan, it only takes one party to file a Complaint for Divorce alleging that there has been a breakdown of the marital relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. We have "no-fault" divorce in Michigan, meaning that fault does not have to established for the divorce to be granted, but rather that one party simply wants to end the marriage.

Does it matter who files first? Generally, no. However, if there are issues in the case which would necessitate an ex-parte order (an order granted to one party without notice to the other party), there is a distinct advantage to filing first as one will not otherwise be able to get these orders without a hearing. Ex-parte orders may include financial restraining orders (which are particularly important in cases where a party may be hiding assets or there is a disparity of income between the parties), temporary support and custody orders, just to name a few. If there is no need for any ex-parte orders in a case, then there may be a psychological advantage to filing first, but likely no legal advantage.

For specific answers regarding your case, contact us at Hickey, Cianciolo, Fishman & Finn, PC.

Sunday, July 11, 2010

Court reverses custody ruling involving same-sex couple

Source: David Ashenfelter, The Detroit Free Press

We previously reported on a case here in metro Detroit involving a child custody battle between former lesbian partners. During their 19 year relationship, the couple had three children through means of artificial insemination. In April, in a first-of-its-kind ruling in Michigan, the trial court deemed that the non-biological parent had standing to pursue joint custody of the children.

However, last week, the Michigan Court of Appeals reversed the lower court's decision and ruled that "one becomes a parent under the Child Custody Act through procreation, or through adoption or the presumption ... arising from a child born in a legal marriage." Consequently, because none of these situations were applicable to this case, they found that the non-biological parent has no standing.

The case has been remanded to the trial court for further proceedings consistent with this decision.

For the full article, click here.

Thursday, July 8, 2010

The Pros and Cons of Arbitrating a Divorce Case in Michigan

By: Carole L. Chiamp

Many couples use mediation (a method in which a third party facilitates to help the parties to reach a settlement) to resolve their divorce action.

When parties cannot agree, they may think the only way to contest unresolved issues is to go to trial. It is not. Arbitration can be used and may be the best possible solution. An arbitration can only be voluntarily entered into. It cannot be ordered by a court. It is binding. In very few cases is the arbitration overturned.

The advantages of arbitration are:

  1. It is less expensive than trial. Even though it may be more expensive than mediation, it is still less expensive than a trial.

  2. It is done in a much more informal manner. The rules of evidence are usually relaxed with regard to testimony, hearsay and exhibits.

  3. It is done more privately in a law office as opposed to a court room.

  4. You can pick your own arbitrator, such as a retired judge or a skilled attorney. If the attorneys do not have a lot of knowledge of the judge because he/she is new to the bench, or because they don’t think the judge is very knowledgeable, arbitration may be the best way, especially where there are complex issues.

  5. In a courtroom, the judge is interrupted due to other responsibilities so you will pay an attorney for down time while you try your case. In arbitration you get the full attention of the arbitrator.

The disadvantages are:

  1. You waive your right to trial.

  2. It is much more difficult to appeal.

  3. If there is a history of domestic violence arbitration may be a bad idea for many reasons.

  4. Arbitration is based on an agreement which must encompass all that is to be arbitrated. There may be no record in which case it is more difficult to determine if mistakes are made. Though a court reporter may be obtained, parties wanting to save money don’t always have one.

Arbitration is an area to be explored with your attorney. We are prepared to assist you to determine whether arbitration is a better alternative than trial in your case. Contact us.

Wednesday, July 7, 2010

Fundraiser for Judge Eric W. Cholack

On July 1, 2010, Carol Breitmeyer of our firm hosted a fundraiser for Wayne County Circuit Court Judge Eric W. Cholack at her residence. Judge Cholack is running for reelection this fall. Special guests included Hon. Kathleen M. McCarthy and Hon. Connie M. Kelley of the Wayne County family bench, Wayne County Friend of the Court Zenell Brown and Referee Camille Dennis.

Judge Cholack addressing the group

Monday, July 5, 2010

Preventive Divorce Counseling

Does your marriage need therapy? Probably. But most people would say no. A recent New York Times article investigates research on ways to reach couples before their marriages are in trouble. One federally financed study is tracking 217 couples taking part in an annual “marriage checkup” that essentially offers preventive care like an annual physical or dental exam.

For the full article, click here.

Thursday, July 1, 2010

This Weekend: Happy 4th of July!

There is a lot going on around town this holiday weekend and the weather looks like it will be fantastic! Hopefully, you can take the kids out and enjoy the festivities! Here are a few things happening in the metro Detroit area this weekend:

  • Stars and Stripes Festival, Mt. Clemens - There is a lot to do at this festival including a carnival, petting zoo, interactive "Salute the Military" display, Taste of America food fair, music as well as fireworks at dusk on Friday night. Runs Friday through Monday.

  • Greenfield Village Salute to America, Dearborn - This weekend celebration features music by the Detroit Symphony Orchestra and a fireworks finale on Sunday. Tickets are $12 - $50. See website for pricing and times.

  • New Center Park Kick-off - Running Friday through Monday, the New Center Park in Detroit will unveil the first series of its summer events schedule in the refurbished park. Music and activities for kids. Food, full bar, & beer sales support the free entertainment.

  • The 12th Annual Northville Parade - The 12th annual march is themed 'Happy Birthday, U.S.A.' and features music, floats, bands, clowns, kids' characters, bike and pet parades and more. Saturday, 10 am.