WHAT RIGHTS AM I GIVING UP IF I AGREE TO ARBITRATE MY CASE?

According to Michigan's Domestic Relations Arbitration Act, MCL 600.5070 et seq., the family court cannot order a party to participate in arbitration -- rather, arbitration is voluntary. Additionally, the parties' agreement to arbitrate must be in writing. The family court must also ensure the parties have been advised of their rights and what they give up if they agree to arbitrate, in lieu of try, their case.

Each party must acknowledge, in writing or on the record, that he or she has been informed in plain language of all of the following:

(a) Arbitration is voluntary.

(b) Arbitration is binding and the right of appeal is limited.

(c) Arbitration is not recommended for cases involving domestic violence.

(d) Arbitration may not be appropriate in all cases.

(e) The arbitrator's powers and duties are delineated in a written arbitration agreement that all parties must sign before arbitration commences.

(f) During arbitration, the arbitrator has the power to decide each issue assigned to arbitration under the arbitration agreement. The court will, however, enforce the arbitrator's decisions on those issues.

(g) The party may consult with an attorney before entering into the arbitration process or may choose to be represented by an attorney throughout the entire process.

(h) If the party cannot afford an attorney, the party may wish to seek free legal services, which may or may not be available.

(i) A party to arbitration will be responsible, either solely or jointly with other parties, to pay for the cost of the arbitration, including fees for the arbitrator's services. In comparison, a party does not pay for the court to hear and decide an issue, except for payment of filing and other court fees prescribed by statute or court rule for which the party is responsible regardless of the use of arbitration.

SHOULD I STAY MARRIED TO KEEP MY HEALTH INSURANCE?

Two words are likely to strike dread in the pit of your stomach more than divorce – health insurance. Will you lose it? How can you afford it? Will your spouse have to pay for it? Will you have to pay for it? Who will pay for your children? And what if you are divorced and unemployed? These questions are, for some of my clients, reasons to steer clear of divorce – why not remain unhappily married but healthy, rather than divorced and without health insurance?

But is staying married the right answer? The best answer for each case depends on the facts and circumstances. However, for one reason or another, often the answer is, No. Ifyou are not earning as much as you did, now might be the time to divorce, when your income is lower and you have less money to give as spousal support or child support.     If you lost your retirement savings in the stock market, why not divorce when you have less to share with your spouse? If everyday you dread your spouse’s biting remarks, fights, over-spending, text messages to boyfriends or nagging ones to you, etc., and everyday sucks the life out of you, or you and your children, why stay?

If health insurance is the thing holding you back, you really should have a discussion with your attorney. You may negotiate for your soon-to-be ex to pay your health insurance, and you may qualify for employer-provided, free or low cost insurance programs. You do have options! Here are the most common options:

COBRA

“COBRA” is the acronym for the Consolidated Omnibus Reconciliation Act.   This was a federal overhaul of laws that included laws for private employers who provide group plan health insurance. The laws require the employer to continue to make health insurance available for employees and certain family members after the occurrence of a qualifying event. The continued health insurance is called “COBRA benefits” for short.

Not every employer needs to. COBRA applies to group health plans for employers with 20 or more employees on more than one-half of the business days in the previous calendar year. 

And not every loss of insurance triggers COBRA benefits. There must be a “qualifying event.” For the employee, this means a loss of the number of hours of work or voluntary or involuntary termination (for reasons other than gross misconduct). For the employee’s spouse or children, this means, in addition to the employee’s qualifying events, divorce or legal separation, the employee’s death or the employee becoming entitled to Medicare. Moreover, the employee must be enrolled in the group health plan when the qualifying event occurs, and that plan must continue to exist while you receive COBRA benefits.

If a qualifying event occurs, you must act quickly if you believe you or your children are entitled to COBRA benefits! The group health plan beneficiary must notify the plan administrator within 60 days of the qualifying event. For example, if your spouse provides your health insurance through her employer’s group health plan and, as a result of your divorce, you will lose that health insurance coverage, you must notify the plan administrator of your divorce within 60 days of your divorce. The plan administrator has 14 days thereafter to send you an election form, which usually comes with supporting material about the plan’s costs and coverages, and you have 60 days to accept or reject the COBRA benefits. If you accept them, then you will have 45 days to pay your first premium.

The premium can be a hefty amount. Usually, unless the plan or the employer has contracted to accept less, the premium is the entire cost or up to 102% of the cost to provide the insurance to the employee. However, if your divorce occurred after September 1, 2008, you may qualify for an additional federal benefit to help pay the cost under the American Recovery and Reinvestment Act of 2009, part of the federal stimulus package that saw extensions for unemployment benefits, reinvestment into infrastructure, loans to banks and the automotive industry, and help for those in a precarious position with health insurance, like divorcing families.

The federal government maintains a call center to answer COBRA questions.    For specific questions, contact your attorney and your or your spouse’s health insurance plan administrator. For general information, however, you may call a federal COBRA benefits advisor at 1-866-444-EBSA . 

Medicaid

Medicaid provides health insurance to certain low-income adults and families and all children living below the federal poverty level. It is a program funded partly with state money and partly with federal money, and each state administers it under that state’s eligibility requirements. While poverty is a key requirement, poverty along is insufficient; the applicant or the applicant’s family must fall within one of the state-specified categories of recipients, which include individuals who are pregnant, disabled, of a specified age, severely poor and a US citizen or a lawfully admitted immigrant. Each state’s application and program requirements are different. Therefore, you should contact your department of community health to learn what requirements apply in your state.

If you or your children qualify, Medicaid could pay for preventive care, screening and treatment of health conditions and diseases, medications, physician visits,        hospital visits and dental and vision services.

 To learn more about the Medicaid services in your state, contact your community health department, a hospital client account department (they will have Medicaid information and applications for you, but, beware, they cannot provide legal advice), or the federal Medicaid call center at 1-877-543-7669.

CHIP

 But what if COBRA benefits are too expensive and you and your children do not qualify for Medicaid? Until you can afford health insurance for your family or your employer provides it as a benefit of employment, apply for CHIP for your children and consider purchasing private health insurance for yourself.

 “CHIP” is the acronym for the Children’s Health Insurance Program. The program started in 1997 as a partnership between the federal government and the states to provide low-cost health insurance for families who cannot afford COBRA benefits or private health insurance but earn too much to qualify for Medicaid. In February 2009, President Obama refunded the program. Each state determines which children are eligible, premiums, cost-sharing, administrative procedures and benefits packages. At a minimum, however, the state must pay for routine check-ups (that are always paid) and immunizations, dental, hospital care, and laboratory and x-ray services (that may come at a reduced cost).

 The program is available in all states. To lean more about the program in your state and how to apply, call the federal call center at 1-877-KIDS NOW.

HEALTH INSURANCE EXCHANGE/“OBAMACARE”

If you don’t have health insurance through a job, Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), or another source that provides qualifying coverage, the Marketplace can help you get covered.

•If you have job-based insurance: You can buy a plan through the Marketplace, but you’ll pay full price unless your employer’s insurance doesn’t meet certain standards. Most job-based plans do.

•If you have Medicare: You can’t switch to Marketplace insurance, supplement your coverage with a Marketplace plan, or buy a Marketplace dental plan. Learn about Medicare and the Marketplace

Your savings depend on your estimate of your expected income for the calendar year in which you enroll. Most people who apply qualify for a premium tax credit that lowers their monthly insurance bill. Some also save on out-of-pocket costs like deductibles and copayments. Coverage extends to preexisting conditions, preventive care and “essential health benefits,” including checkups, ER visits, labs, rehabilitation and prescriptions. Dental coverage is also an option.

            Before your divorce, use the health insurance available to you! (Strategically, I recommend my clients do this before we file for divorce so that any debts for co-pays, lab costs, etc., are more likely to be treated as marital debt to be divided between the spouses, rather than separate debt to be foisted on one party) Go to that annual check up. Fill your prescriptions. Have your eyes examined and your teeth cleaned. If a serious surgery is in your future, seriously consider when and why you will divorce. Talk to your doctors about your immediate and future health needs, what insurance to obtain and whether low-cost substitutes (e.g., a generic medicine) are available to you.

            Just staying married may not be the healthiest choice. A man stopped to my office recently ashen, sluggish and in pain. He was tall, average weight and middle-aged, but he looked like an old man, like something out of a Dickens novel, with years of an unhappy marriage weighing him down. He told me he stayed married for his four children’s sake. They grew up to be two doctors, a vocalist and an engineer. That was 31 years ago – 31 years of walking on eggshells, as he described it – and the children have all returned to him to ask him why he stayed married so long. He lamented that he missed out on a lot of happiness in his life, and, had he known his children would have supported a divorce, he would have divorced his wife sooner. Now, he has stress ulcers, high blood pressure and chronic heartburn. He swears they are related to his marriage – and he even asked if he could sue for “pain and suffering.” (This short answer is, usually, no.)

            But he makes a point – it is not always best to stay married for health insurance. You do have options.  

I WANT AN ANNULMENT!

                You are fed up with your marriage. Your spouse lies. You do not have a lot of property to divide, or you do not care to divide it. You just wish the marriage never took place. Can you seek an annulment to undo your marriage quickly, a la Brittney Spears?

                Probably not.

                A legal annulment is an annulment is a judicial determination that a valid marriage never took place. MCL 552.1. It is the appropriate means of dissolving two kinds of marriages—those that are void ab initio and those that are voidable. If a marriage is void ab initio, it is deemed never to have taken place since it was void from the beginning.  If a marriage is voidable, it is valid until one of the parties brings an action to have it annulled. The action must be brought while both parties are living, and until a court declares the marriage annulled, it is legally binding.

                The grounds for an annulment are limited. There are two statutes in Michigan setting the grounds that invalidate a marriage. Under MCL 552.1, the grounds that make a marriage “absolutely void” are

•a bigamous marriage,

•a marriage prohibited by the relationship of the parties, or

•a marriage with a person who is not capable in law of contracting.

This means, the law treats the marriage as if it never exists.

                A marriage is voidable if either of the parties is under the age of consent or consent was obtained by force or fraud. MCL 552.2.

To obtain an annulment, either party may file a petition or complaint for an annulment in the family division of the circuit court in the county where at least one of the parties resides. MCL 552.3. Jurisdiction for annulment, unlike divorce, does not depend on a specific length of residence. A resident of another state or country may file a petition as long as one party to the marriage is a resident of the county where the petition is filed. Hill v Hill, 354 Mich 475, 93 NW2d 157 (1958).  The petition and subsequent proceedings are the same as in a divorce proceeding. MCL 552.3. Generally speaking, this means there will be a trial if the grounds for annulment are disputed, as well as times to exchange witness lists, exhibit lists, trial briefs, etc., and discovery into the allegations. Child custody, parenting time and child support terms will be set, and property may still be divided.

                Thus, an annulment is not a quick way to undo a marriage. It may, however, be appropriate for religious purposes or to confirm a later marriage (in the event of alleged bigamy).

I DON'T LIKE MY FRIEND OF THE COURT RECOMMENDATION - NOW WHAT?

 OBJECT! AND DO IT QUICKLY -- FOR MOST ISSUES, YOU HAVE ONLY 21 DAYS TO FILE AND SERVE YOUR OBJECTION. 

            A party may obtain a de novo review on any matter that has been the subject of     a referee hearing and that resulted in a statement of findings and a recommended order by filing an appropriate objection.[1] Although the trial court may conduct the hearing by review of the record of proceedings with the referee, the trial court must allow  the parties to present live evidence as to matters objected to.[2]

            The trial court may, in its discretion, prohibit a party from presenting live on findings of fact to which     the party did not object and may find the referee’s findings conclusive as to matters to which neither party objected,[3] but the trial court must make independent conclusions as to matters to which a party did object.[4] So, be specific and detailed in your objection - whatever you do not object to is probably coming in.

            Demand a de novo hearing- a hearing "anew" before your judge, without deference to the Friend of the Court. It is your right. For example, in Cochrane v Brown,[5] the Court of Appeals reversed a lower court for limiting its review of a Friend of the Court recommendation following    a party’s objection to the referee’s findings of fact and conclusions of law, the file and transcripts.  The defendant-father objected to a referee’s recommendation denying his motion to modify custody.  The lower court conducted the hearing but did not allow him to present evidence because the lower court’s administrative policy permitted review of the record alone.[6] But, a hearing as contemplated in MCR 3.215 “based solely on review of the referee’s hearing record is permissible only with the consent of all parties,” and        the lower court “cannot simply adopt the referee’s recommendation without conducting its hearing de novo.”[7] The word “must” is a directive to allow live evidence.[8]

[1]               MCL 552.507(F); MCR 3.215(e)(4).

[2]               MCR 3.215(F)(1); see also Cochrane v Brown

[3]               MCR 3.215(F)(1)(a)-(c).

[4]               Drumm v Brodbeck, 276 Mich App 460; 740 NW2d 751 (2007).

[5]               234 Mich App 129; 592 NW2d 123 (1999).

[6]               Id.

[7]               Id.

[8]               Mann v Mann, 190 Mich App 526, 529; 476 NW2d 439 (1991) (citing Crampton v Crampton, 178 Mich App 362; 443 NW2d 419 (1989)).

WHAT DOES THE FAMILY COURT CONSIDER WHEN FIXING MY PARENTING TIME SCHEDULE?

My order says parenting time is supposed to be in frequency, type and duration so as to foster my relationship with my child. What does this mean?

At the request of either parent, the family court must give a specific schedule for parenting time. If you do not have a specific schedule and your arrangements with your ex are not working, petition the family court for one. It is your and your child’s right.

Michigan law specifies what the family court must consider.

You can read the entire Michigan Parenting Time Guideline here:

http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/pt_gdlns.pdf

In order to determine the length, frequency and type of parenting time, the family court considers several factors (MCL 722.27a).

1. The existence of any special circumstances or needs of the child.

2. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.

3. The reasonable likelihood of abuse or neglect of the child during parenting time.

4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.

5. The inconvenience to, and burdensome impact or effect on, the child of traveling to and from the parenting time.

6. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.

7. Whether the parent has frequently failed to exercise reasonable parenting time.

8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.

9. Any other relevant factors.

In order to provide the necessary structure for parenting time to occur, parenting time orders are required to be granted in specific terms if requested by a party and may contain any reasonable terms or conditions (MCL 722.27a (8)). Examples of such terms and conditions include:

1. Division of the responsibility to transport the child(ren).

2. Division of the cost of transporting the child(ren).

3. Restrictions on the presence of third persons during parenting time.

4. Requirements that the child(ren) be ready for parenting time at a specific time.

5. Requirements that the parent arrive for parenting time and return the child(ren) from parenting time at specific times.

6. Requirements that parenting time occur in the presence of a third person or agency.

7. Requirements that a party post a bond to assure compliance with a parenting time order.

8. Requirements of reasonable notice when parenting time will not occur.

9. Any other reasonable condition determined to be appropriate in the particular case.

DO I NEED TO PROVE FAULT?

Another day, another celebrity marriage breaking up because so-and-so cheated, squandered money, etc., etc. That's a basis for divorce, right?

Celebrity lawyers point to these transgressions as “the basis” for a divorce. Talking about them at length makes for great television, but it is misleading. In most states, there is no need to prove a “basis” for divorce, other than that the marriage is irretrievably broken. That is, one spouse need not prove the other spouse cheated or is otherwise at fault for the marriage’s breakdown. Divorce in the United States is almost exclusively no-fault, and in those few states that consider “fault” as a basis for divorce, fault is more a formality than the be-all-end-all of the case.

Parties are often confused about the part fault plays in a divorce. Each state has different rules, and you should consult a lawyer in your state for the rules specific to your case. In general, however, fault is a mere formality for obtaining a divorce. In Michigan, where I practice, for example, the party filing for divorce must only allege that there has been a breakdown in the marriage relationship to the extent the objects of matrimony have been destroyed and there remains no reasonable likelihood of reconciliation.

Period.

Nothing more.

In fact, most judges will not even let the parties testify about who was “more at fault” for this breakdown to grant the divorce.

This is not to say that fault is completely irrelevant. Most states will consider fault when dividing property and ordering child custody. In Michigan, for example, fault is relevant if the fault is related to marital property (e.g., one spouse secretly incurred debt to fuel a gambling addiction). Fault is also relevant if it reflects on parenting (e.g., one spouse deserted the children for a lover).