Tuesday, January 24, 2012

New lawsuit aimed to strike down Michigan adoption laws preventing same-sex couples from adopting

SourceCouple fights for family with lawsuit seeking gay joint adoption, By David Ashenfelter, Detroit Free Press

On Monday, April DeBoer and Jayne Rowse, a lesbian couple from Oakland County, filed suit in federal court to attempt to change the law in Michigan as it relates to gay, lesbian and heterosexual couples jointly adopting children.  Currently, the couple has three children; DeBoer is the adoptive parent to their daughter and Rowse is the adoptive parent of their sons.  But under the current law in Michigan, neither of them can legally adopt the other child(ren), giving each of the children two adoptive parents.

The women, both of whom are nurses and state-certified foster parents, want to change the law so that in the event that something happens to one of them, the other parent would be the child(ren)'s legal parent and be able to keep the child(ren).  Also, the children would have more benefits available to them by having two legal parents, including Social Security benefits, workers compensation, pensions, insurance, and the right to have at least one parent available to make decisions if the other parent is unavailable or incapacitated. 

Currently, the Michigan Constitution prohibits same-sex couples from marrying.  A separate state law prohibits a second parent from adopting if the couple isn't married.

We will keep you posted on this important pending lawsuit.

Sunday, January 22, 2012

Tape record another at your peril

By: Carole L. Chiamp

Too often a new client comes in with tape recorded evidence which negatively impacts the other spouse. The client knows nothing about the Michigan or federal eavesdropping law. Unfortunately, serious consequences are in store for the unwary eavesdropper.

There are several laws to which someone recording a conversation must adhere. One is MCL §758.539 which provides that if a person eavesdropping may be guilty of a two year felony, a fine of $2,000. In civil court, an injunction to stop the eavesdropping, money damages for each instance of violation of the law and punitive damages are available to the victim of an unlawful eavesdrop.

Sullivan v Gray, a Michigan case, provides:

The operative language of MCL 750.539c; MSA 28.807(3) prohibits a person from "wilfully [using] any advice to eavesdrop upon [a] conversation without the consent of all parties thereto." As used in the statute, the term "eavesdrop" means to "overhear", record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse". MCL 750.539a(2); MSA 28.807(1)(2). We believe the statutory language, on its face, unambiguously excludes participant recording from the definition of eavesdropping by limiting the subject conversation to "the private discourse of others". The statute contemplates that a potential eavesdropper must be a third party not otherwise involved in the conversation being eavesdropped on. Had the Legislature desired to include participants within the definition, the phrase "of others" might have been excluded or changed to "of others or with others".

A common situation for a divorcing litigant is to install a device, without the other spouse’s knowledge, in order to record telephone conversations with a priest, marriage counselor, attorney and friends. The law is not clear in every state but Michigan and the Sixth Circuit Court of Appeals, enforcing a federal eavesdropping statute, finds those conversations inadmissible in any state or federal proceeding. Additionally parents have no right to consent on behalf of a minor to the interception of a conversation in which the parent is not a participant.

There are legal ways to record another which are too detailed to present here. If you want additional information, seek specific information BEFORE taking action. A good article on the subject can be found here, by attorney Renee C. Walsh.

Thursday, January 12, 2012

Don’t forget to divide social security benefits at divorce

By:  Carole L. Chiamp

A recent Michigan divorce case discussed the division of social security benefits (Biondo v Biondo, C of A No. 294694, 3/15/11, ___ Mich App ___ (2011)).

In a case where a spouse works outside the home and the other spouse is a homemaker and raises the children the worker receives a social security benefit at retirement usually two times as much as the non-working spouse (assuming the parties were married ten years which qualifies the non-working spouse to receive social security benefits through the spouse).  Some attorneys ignore social security benefits which result in the non-earning spouse receiving one-half of the benefit received by the working spouse.  This case allows the non-working spouse to receive a fair amount which may be more than one-half.

The Court of Appeals joins the majority of state courts that have considered this question and hold that the circuit court may consider the parties anticipated social security benefits as one factor, among others to be considered, when devising an equitable distribution of marital property.  The court cautioned that in dividing the marital estate, the court may not treat social security benefits as tantamount to a marital asset.  Instead, the circuit court may take into account in a general sense, the extent to which social security benefits received by the parties affect the Sparks factors.  The court sent the case back to the circuit court for consideration of this issue.

This case is important to divorcing parties, especially those reaching social security age, or those actually receiving social security benefits.