Tuesday, October 16, 2012

High tech gadgets turning divorce into arms race

An interesting article from the October 6-7, 2012 Wall Street Journal explains how new "Bond-like gadgets" are transforming divorces as suspicious spouses are easily able to take investigations into their own hands.

As we have reported before, spouses who choose to eavesdrop on their spouse need to be cautious.   Unfortunately, serious consequences are in store for the unwary eavesdropper.

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.

Wednesday, October 10, 2012

What is the Double Dip and Why Does It Matter in Divorce?

By:    Carole L. Chiamp

Double-dipping is used in divorce law all the time. “‘Double-dipping’ – or ‘tapping the same dollars twice’ – refers to situations where a business or professional practice is valued by capitalizing its income, some or all of which is also treated as income for spousal support purposes.”  Cunningham, “Double Dipping” Revisited: Food for Thought, 27 Mich Fam LJ No. 1, 6 (1999).

This issue has been argued and re-argued, depending which party benefits or loses from application of the double-dip. 

A recent published case, Loutts v Loutts, published by the Michigan Court of Appeals, begins to clear up the old argument:

The Court of Appeals’ decision: Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party, the court may also award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case. [My emphasis] The award of spousal support is made on a case-by-case basis, citing MCL 552.23(1), McCallister, supra, and Stoltman v Stoltman, 170 Mich App 653, 658; 429 NW2d 220 (1988).

The Court of Appeals’ decision states that there is no “bright line” rule.  The courts must look to what is fair and reasonable.  MCL 552.23(1).  Those factors may be that the award of spousal support is inadequate, that support recipient cannot obtain a job commensurate with his/her education because of absence from the workforce for many years and other factors not listed.

The decision also pointed out that the court may use the double-dip approach where appropriate.

This development in the law has been long in coming and assists practitioners as a good first step.