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Rochester Law Blog

Are there special issues to consider in a military divorce?

The U.S. Supreme Court recently ruled that a federal law called the Uniformed Services Former Spouses’ Protection Act preempts any applicable state law approach to the contrary regarding property division rights. The state law would classify a waived portion of retirement pay as community property, eligible for division in a divorce. However, the USFSPA law expressly prohibits that approach.

The case involved a couple that had divorced one year before the husband retired from a 20-year career in the U.S. Air Force. The divorce agreement prospectively granted each spouse half of the anticipated military retirement pay. Several years into retirement, the husband sought treatment for a degenerative joint disease in his shoulder. He concurrently filed a claim for disability benefits, which the U.S. Department of Veterans Affairs approved.

Your out-of-state move will affect your divorce agreement

When you were first divorced, you and your ex-spouse may have done well adhering to the terms of the divorce agreement. However, things change in life and it is not uncommon for couples to revisit the decree in light of issues that later develop.

Courts are very careful in reviewing requests for changes, especially those that affect children, such as your need to move out of the state. An attorney experienced with family law can help you with the modification to your original divorce agreement.

Getting divorced? Make sure you inventory the marital estate

A divorce requires the parties to divide the marital estate. In Michigan, that approach is called equitable distribution, calling for a fair result, but not necessarily a 50-50 split. Although disputes may arise over what constitutes “fair,” our law firm has also found that misconceptions still exist over the predicate issue of what constitutes marital property.

Specifically, many clients incorrectly assume that a 401(k) retirement plan is strictly their property. Although the plan may be associated with only one individual’s employment, contributions alone do not determine whether an asset is part of the marital estate. Similarly, the name or tile on property acquired during the marriage may also be misleading.

Do retirement needs impact your estate planning?

Many Americans may find it easer to discuss retirement needs rather than estate planning. The former may include fun goals, like retirement vacations, perhaps a move to a warmer climate, or simply more time to take up a hobby or check items off one’s bucket list. Thinking about one’s passing, in contrast, often feels more like a duty or an obligation owed to one’s surviving family members.

Yet the two topics can go hand-in-hand. For example, the rising costs of healthcare and assisted living may require many Americans to revise their retirement planning. Fortunately, many financial products can be utilized in both retirement and estate planning, such as annuities.

Can I move with the children after a divorce?

As you move on from the previous chapter of your life, your circumstances are bound to change and you may find yourself wanting to live somewhere else. Maybe you were offered a job elsewhere or you want to be closer to extended family. Before you can move with the children, though, you need to go through the process of requesting relocation.

With so many options, where do you start your estate planning?

There are a lot of options available in estate planning, and readers may understandably not know what to choose. What's important to remember is that most choices are not mutually exclusive. Said another way, a comprehensive estate claim may contain several tools, including a last will and testament, one or more trusts, an advanced health care directive, and a financial power of attorney.

In our experience, we have found that a last will and testament is often a good place to start. This document starts the discussion about property and assets, beneficiaries, and the timing of transfers after the owner passes. If an individual wants some restrictions on the timing of the asset transfers, this discussion naturally flows into selecting one or more trusts.

Tips for drafting an enforceable postnuptial contract

Michigan law allows a couple to draw up a contract after they are married. This type of agreement, called a postnuptial contract, does not indicate that a couple is on the verge of divorcing. In fact, executing this type of contract may be a strategy for preserving a marriage; especially if a couple’s divergent financial habits are a source of frequent contention.

Although a postnuptial contract may be similar in form to a prenuptial agreement, its timing during the marriage may require extra care. Specifically, a marriage creates legal rights to property division of the marital estate. In a divorce, those property rights require an equitable division of the marital estate. Consequently, any agreement that alters a spouse’s default property rights requires an attorney’s eye for proper drafting and execution.

Are immigration policies creating new child custody concerns?

Legal custody issues often arise in the context of a divorce, but the changing legal landscape of immigration laws has produced a new concern.

In a recent example, an undocumented immigrant went to court to obtain legal custody of the three children he had with his wife, a U.S. citizen. When he arrived at the courthouse, however, immigration agents arrested him.

Preventing or Mitigating Summer Custody Disputes

Traditionally, school break periods tend to inspire tension between co-parents. Sometimes this tension arises due to unexpected events, sometimes due to unintended thoughtlessness and sometimes due to intentional thoughtlessness. Growing frustration between co-parents during major school break periods is understandable but rarely welcome.

Thankfully, there are ways to prevent such periods of tension and there are ways to mitigate the severity and stress of a custody dispute once co-parents have begun to disagree on something related to the child's best interests. The key to either preventing or diffusing co-parental tension usually rests in both preparation and keeping one's child in mind when responding to any potentially-troublesome situations.

How important is a child's preferences in custody determinations?

In our last post, we examined the controversial actions of a Michigan judge who wanted to offer each party an opportunity to present their child custody proposals. In that case, the three minor children apparently favored legal and physical custody with their mother. But when the children refused to even meet with their father, the court sent them to juvenile detention.

A child’s preferences are an important consideration in legal and physical custody determinations. In fact, state law enumerates twelve child custody factors for the court’s inquiry, and the first addresses the parent-child relationship. Understandably, the court wants to learn about the quality and nature of any existing emotional ties in a family. However, there are other factors that the court will examine before making a final decision.

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821 North Main Street
Rochester, MI 48307

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