This Weekend: Happy Memorial Day!

Hope you can get out and take advantage of the long weekend! There are many things going on around the metro Detroit area for the family to enjoy. Here are just a few things to partake in:

• Milford Memorial Day Parade - One of many area parades in honor of those who lost their lives in the service of our country and to support those who served in wartime, as well as all the men and women who are presently serving in the Armed Forces. Downtown Milford, Monday at 11 am.


• St. Mary's Polish Country Fair - The 39th annual fair runs Friday through Monday. Includes Polish and American foods, entertainment as well as a carnival!


• Detroit Tigers - The Oakland A's are in town all weekend for a four game series with the Tigers. Fireworks after the game both Friday and Saturday nights. And every Sunday is Kids Day where the carousel and Ferris wheel rides are free and the kids run the bases after the game! Go Tigers!

Michigan Child Custody: Legal v Physical

By: Kathryn M. Cushman

In Michigan, there are many considerations when it comes to child custody matters. These types of cases have the potential of becoming extremely complicated and stressful for everyone involved, most importantly the children. Although most parents want what is best for their children, emotions can sometimes cause a parent's judgment to be unreasonable. It is important for both parents to try to stay focused and work together to negotiate a custody and parenting time arrangement that is in the best interests of the children.

In most cases, a divorced or non-married couple will share legal custody of their children. Legal custody refers to the decision making responsibility including major decisions such as education, medical and religious issues. In joint custody cases, the parents will have equal say with respect to these decisions. It does not matter how much time the child actually spends with each parent. Only in rare cases will the court grant sole legal custody to one parent.

Physical custody has to do with whom the child(ren) will actually reside and how much time the child(ren) spend with each parent. If one parent is granted sole physical custody, then the non-custodial parent is usually awarded parenting time. There is a growing trend of courts moving away from using the term "physical custody" as it typically fosters a battle for custody between the parents. Instead, the court will focus on the parenting time schedule that dictates when and how often each parent will have the child(ren) with him or her. Also, the parenting time schedule, in conjunction with the income of the parties, generally dictates how child support is calculated using the Michigan Child Support Formula.

Joint custody can refer to just legal custody or both legal and physical custody depending on what the court determines or the agreement of the parties. When the parties have a true joint custodial arrangement, they share in both the decision making as well as the day-to-day care of the child(ren) with a more equal parenting time schedule. Typically, joint custody situations are only awarded in cases where the parties have a good working relationship and an ability to effectively communicate with respect to their child(ren), no matter how strained their personal relationship may be.

In Michigan, when making a custody decision, the court will review the case in light of the best interests of the child(ren) and consider the following factors, known as the Best Interest Factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

A recent "Mediation Matters" article by attorney Carole L. Chiamp of Chiamp & Associates PC explores the fine line that attorneys and courts walk when trying to convince parties that it is not a "custody contest." Instead, for the sake of the child, the parties need to cooperate and concentrate on the parenting time schedule as it is what really matters when all is said and done. The article can be found here:

Custody Battle v. Parenting Plans: Changing the Game

For answers to your specific custody questions, contact us at
Hickey, Cianciolo, Fishman & Finn P.C.

Divorce: How to Obtain Your Tax Return and Why It Is Important

By: Carole L. Chiamp

Often one spouse, usually the woman, is asked to sign a tax return at the last moment it is due and not given an opportunity to review. Often it is never seen again.

When obtaining a divorce, it is most important that a joint return be provided to the attorneys for the parties so it can be used for checking for certain assets, for purposes of determining child support and/or spousal support, among other things. It can be obtained from the IRS with only one person’s signature, that is, the person seeking it. The other party will not know that it is being sought. It may take as long as six weeks to obtain.

To obtain a copy of the IRS form needed to request your joint or individual tax returns, click here.

Property Division in a Divorce: Have a Plan

By: Carole L. Chiamp

No one plans on getting a divorce when they get married, but one of every two marriages will end up that way. If your marriage is one of those that has not worked, you need a plan. The decision to get divorced is a difficult one that impacts your emotional stability and your social and financial security. You will want to be in control of as many aspects of the divorce process as is possible.

In a divorce, assets must be identified, valued, and then divided. They are divided "equitably" in Michigan which does not necessarily mean "equally" but rather in a way that is fair to both parties. A court will commonly take into account these factors in dividing property:

• The source of the contribution toward the acquisition of property;


• The length of the marriage;


• Your needs and the needs of your spouse;


• Your children's needs;


• The earning power of the parties; and


• The cause of divorce.

For the full article, click here: How to Plan When You Begin to Think of Divorce

Things to do this weekend

Here are a few things happening around town this weekend if you're looking for activities to do with your kids!

• Dearborn Mutt Strutt & Pet Expo - A weekend of entertainment, demonstrations, contests, shopping, food and lots of people and doggie fun! Downtown Dearborn at Ford Field. Saturday & Sunday, 10 am to 3 pm.


• Art Birmingham Fine Art Fair - The 29th annual fair on Old Woodward in Birmingham. A special Art Center tent will be featuring projects for kids. Saturday and Sunday.


• Compuware Arena Drive-In Theater, Canton - Opens Saturday and runs until September. Showing first-run family movies. Gates open at 7:30 pm, movie at 8:30 pm.


• Flower Day at Eastern Market -One of the largest flower shows in the country. Sunday at Eastern Market in Detroit from 7 am to 5 pm. (Tip: Go late in the day for the best deals!)

Michigan case law update

Recently, there have been two interesting opinions to come down from the Michigan Court of Appeals.

The first case, Woodington v Shokoohi, COA No. 288923, is a published opinion (a rarity in Michigan family law) and was filed on May 4, 2010. There were several issues before the court in this case. One notable issue deals with business records. Husband, an ophthalmologist, contended that he was merely an employee of his brother's medical practice, not part-owner (as he had represented himself and as his income had reflected in the past). Wife attempted to subpoena the business records to determine Husband's ownership interests, but her request was denied by the trial court (as the court deemed those records not necessary to determining Husband's income). However, Wife had a different reason for wanting to examine the records as it was believed that Husband was trying to hide his ownership interest in the business, which would be part of the marital estate. The Court of Appeals has agreed with Wife and has overturned this portion of the trial court's ruling, allowing Wife to now obtain these business records as they are certainly relevant and may lead to a different outcome in regard to Defendant's interest in the practice as a marital asset.

Also at issue was the award of alimony to Wife. She was ultimately awarded alimony in gross versus spousal support. Wife was awarded $55,000 per year ($4,600 per month) for six years. Wife appealed this issue as she contends that instead of an award of spousal support, she was given alimony in gross, which is essentially a division of property. The Court of Appeals sent this issue back to the trial court for clarification on why the trial court thought an award of this type was appropriate in this case.

Why would Wife want this trial court ruling to be overturned? Because if she receives alimony in gross, it is nonmodifiable later because it is deemed a division of property. Generally, property divisions are final once the divorce is final. On the other hand, an award of spousal support is generally modifiable later if proper circumstances exist.

In Woodington, there were also issues regarding attorney fees and a prenuptial agreement that was deemed invalid by the trial court due to the fact that it did not apply to divorce. The Court determined that when a prenuptial agreement is ambiguous, it should be construed against the drafter (Husband in this case) to determine intent. Read the full opinion here.

Under Michigan law, specifically the case of Berger v Berger, 227 Mich App 700 (2008), the purpose of spousal support is to balance the needs of the parties in a way that is reasonable and just under the circumstances, without impoverishing the other party. When determining spousal support, there are many factors that the court should consider including (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the ability of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties' ages, (6) the abilities of the parties to pay support, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties' health, (10) the parties prior standard of living and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party's fault in causing divorce, (13) the effect of contribution on a party's financial status, and (14) general principles of equity. See Berger at 726-727.

The second case, Guerra v Guerra, COA No. 288523, is significant in that the Court of Appeals upheld the trial court's ruling that Husband's pension from GM not be split evenly between the parties (which goes against the general rule in Michigan). The parties married in 1964 and divorced in 2008. However, it was determined that Wife abandoned the family in 1994 (and also had an affair) and the parties stopped living as man and wife at that time even though they were technically still married. Because of this fact, it was ordered that the value of Husband's pension up until 1994 be equally divided while the remaining portion of his pension (from 1994 to 2008) be awarded to him in full. In Michigan, at the time of divorce, the goal is to equitably distribute the marital property in light of all the circumstances. See Berger at 716-717.

This weekend: Happy Mother's Day!

It's time to celebrate Mom! There are lots of things going on around town this weekend, so take Mom out for some fun. (Or Mom, take matters into your own hands and take the kids out for some fun!) Here is a little bit of what's happening in the Metro Detroit area:

• Brunch - Don't make Mom cook... take her out! Click on the link to see a list of the area Sunday brunches this weekend, many of which are special for Mother's Day.


• Detroit Zoo - Mother's Day breakfast, Sunday from 8 to 10 am. Includes access to the Butterfly and Hummingbird Garden. Reservations may be necessary.


• Royal Oak in Bloom - The 17th annual garden sale downtown Royal Oak. Sunday starting at 7 am at the parking lot located at 11 Mile and Main Street.


• The Grosse Pointe Theater - Grease the musical. Starts Sunday and runs until May 22. See website for more details.


• Hudson Mills Metropark, Dexter - Wildflower Hike, Sunday at 1 pm. Moms get in free!

Whatever you do, make sure Mom gets lots of hugs!

Important tips for Step-parenting

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."

Her May 2010 article, "Mediation and the Blended Family," focuses on the struggles that step-parents and step-children face as their families become one.

As Carole reports, it is expected that in 2010, the number of step-families in the United States will outnumber all other family types. Although it’s natural for Mom and Dad to think they’ll have “instant success” with the new blending of families, forming a new family after a death or divorce is not so easy. These families with more family members who are often very different from one another, end up having more and different conflicts than biological families.

Here are some helpful tips for step-families:

1. Be patient. Relationships take time to develop.


2. Accept the role of step-mother/step-father. It is a different role from that of biological parent (more like a caring uncle or aunt), but it is very important.


3. Partners need to support one another and establish a relationship separate from the children.


4. Learn to live with the reality of ex-spouses.


5. Develop a relationship with step-children before attempting to discipline them. Family meetings are sometimes helpful.


6. Do not take misbehaviors personally. Every stepparent goes through a period of testing by the children.


7. It’s okay to ask for courtesy and respect from your step-children. In return, you must be courteous to the children and treat them fairly.


8. Discuss appropriate dress, privacy and modesty with regard to teenage children.


9. Don’t expect to love your step-children or have the step-children love you instantly. Try to find a special interest to share with them.


10. Don’t denigrate the children’s biological parent. That only hurts the children and makes them feel defensive.


11. Good communication and a sense of humor can be very helpful. Don’t try too hard. Remember, you are creating a new family. It is a great deal of work but can be rewarding in the long run.

Read the entire "Mediation and the Blended Family" article here.

The "Mediation Matters" archives can be found here.

The Basics of Social Security and Divorce

Social Security benefits are generally paid in two ways: (1) upon retirement based upon one's Social Security contributions or (2) to the spouse of a contributor, known as "derivative benefits." This comes into play during a divorce because if the marriage lasted 10 years or longer, benefits may be based upon the contributions of the former spouse.

Here are five rules to keep in mind:

1. If your marriage lasted at least 10 years and you do not remarry, you can collect retirement benefits on your former spouse's Social Security record if you are at least age 62, even if your former spouse is entitled to or receiving benefits. This is important in cases where the dependent spouse is older than the contributing spouse. It is also true even if the contributing spouse remarries.


2. You are entitled to receive 50% of your former spouse’s Social Security benefit or your own benefit based on your employment history, whichever is greater. And no, your former spouse's benefits are not reduced as a result. This is a common misconception and is key as it removes this Social Security benefit issue from the bargaining table during divorce negotiations.


3. If you marry more than once and each marriage ends (whether by death, divorce or annulment), you may collect derivative benefits from the former spouse that provides the highest benefit, provided the marriage lasted at least 10 years. Note that once you remarry, you generally may not collect from a former spouse unless your marriage ends.
   


4. In the event that your divorced spouse dies, you can receive 100% of his/her benefits as a widow/widower if the marriage lasted 10 years or more. To qualify, you must be at least 60 and have not remarried before the age of 60.


5. There are exceptions to these general rules where a former spouse is caring for a child of the primary beneficiary who is under 16 or the former spouse is disabled.

For more information, go to the Social Security Administration website or contact us at Hickey, Cianciolo, Fishman & Finn PC.

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