SAME SEX COUPLE AND MICHIGAN ADOPTION

Michigan Adoption Law recognizes adoptions of a married couple or a single individual but currently does not prohibit nor recognize second parent adoption. Therefore, same-sex couples wishing to adopt have limited avenues from which to do so. Typically, one party will adopt the child and the same-sex couple will raise the child together. However, this could be devastating if the couple discontinue their relationship because one parent will be left without recourse or the ability to participate in raising their child. However, on March 22, 2014 same-sex couples were allowed to become legally married in the state; if a couple was able to marry or is legally married in another state then it maybe possible to have a step-parent adoption giving both parents parental rights.

If you have questions on this please call us at (517) 351-6222 or email us at jbissell@jwbissell.com.

MILITARY DIVORCE AND JURISDICTION

Our firm has been asked several times if a military couple residing outside the State of Michigan or overseas meets the jurisdictional requirements to obtain a divorce in the State of Michigan. The answer is yes. McFadden v McFadden 336 Mich. 557; 59 N.W.2d 1 (1953)held that someone in the service of the United States neither gained nor lost a residence by reason of being employed by the United States.

To establish jurisdiction in Michigan for divorce one party must be a resident of the State of Michigan for 180 days prior to the filing of the Complaint for Divorce and a resident of the county 10 days prior to the filing of the Complaint for Divorce. Residence can be established by driver's license, voter's registration, where a party files taxes and by what is declared by the service member as their legal residence.

For further information, please contact us at (517) 351-6222 or at jbissell@jwbissell.com.

WHAT DOES NO FAULT DIVORCE MEAN?

Michigan is a no-fault divorce state meaning either spouse may petition the court for divorce and while either spouse can delay the divorce with various tactics neither spouse will be able to prevent the divorce. Previously, a court could deny a couple a divorce that is no longer the case. However, fault is alive and well when it comes to property division. Fault can impact how property is divided. Typically, there is a 50/50 spilt of marital  property but that can be impacted by factors including fault. For example, if one spouse dissipates the marital property on drugs or gambling then the innocent spouse may be entitled to a larger portion of the assets. So while anyone can get divorced division of marital property is still a hot issue that requires a strategy to protect assets in a divorce.

REVOCATION OF PATERNITY ACT

The Marital Presumption of Legitimacy was revoked by the legislature in 2012 under the Revocation of Paternity Act a biological father may step in and have rights to a child prior to their third birthday if the biological father did not know or have reason to know that the mother was married at the time of conception and the presumed father, biological father and mother acknowledge a biological relationship between the biological father and the child OR the presumed father has failed to substantially support the child for two years. (Grimes v Van Hook-Williams)

WHO CLAIMS DEPENDANT TAX EXEMPTION?

Typically, the custodial parent claims the child on the tax return, however, there are several exceptions. Tax exemptions are part of the award of child support, therefore, the court has authority to award the exemption. Fear v Rogers, 207 Mich App 642, 646-647; 526 NW2d 197 (1994). Reasons for modification or awarding an exemption to a non custodial parent may be a change in employment or parenting time to name a few. If a party wishes to change the past award of an exemption the petitioner must show that circumstances have changed which currently justify a modification. Aussie v Aussie, 182 Mich App 454, 463; 452 NW2d 859 (1990). It is important that when it is Ordered that the non custodial parent is entitled to claim the minor as a dependant that the custodial parent sign IRS Form 8332 to make sure future tax filings occur without delay.

If there are any questions about your particular case,  please feel free to contact our office.

HIS AND HERS - MARITAL VERSUS SEPARATE PROPERTY

The big question to answer is whether the property marital or separate?

This is important because marital property is considered an asset of the marriage to be divided between the husband and wife and separate property will remain in one individual's sole possession. Marital property is property earned, bought or contributed to during the marriage. Separate property is property received as an inheritance or gift from a third party during marriage or property purchased by a party before the marriage. However, separate property if commingled loses it's identity as separate property and will be subject to division. Commingling can occur in a variety of ways. Thus, the court will consider if funds were contributed to a 401k during marriage, whether improvements were made to a marital home purchased before marriage, etc.

We've had a case where a home purchased before marriage was considered marital property due to the improvements made with marital assets.

Please contact us at 517.351.6222 or info@jwbissell.com to determine if that antique, inheritance or expensive gift is marital property and let us help you protect your assets?

COHABITATION AND IMPACT ON PARENTING TIME

Over the years the issue of a parent having overnight guests of the opposite sex during parenting time has arisen quite a few times. Often, we have been asked how cohabitation may affect custody and/or parenting time. The standard answer is that while a court does consider the moral fitness of a parent the inquiry is typically limited to the impact a parent's conduct will have on the parent-child relationship and if such conduct will have a "significant impact" on how the individual functions as a parent. Fletcher v Fletcher, 447 Mich 871, 887 (1994). Typically issues that are relevant to a parent's moral fitness include " verbal abuse, drinking problems, drving record", physical/sexual abuse and illegal/offensive behaviors. Id.  Thus, court's usually do not enforce a provision prohibiting a parent from having guests of the opposite sex overnight while exercising parenting time unless the parties stipulate to such a provision. For a provision prohibiting a parent from cohabitating with an  unrelated member of the opposite sex during parenting time to be ordered by a court the moving party has the burden of showing that allowing the other party to cohabitate during parenting time has an adverse affect on the child(ren) and/or cohabitation has a negative impact on the child-parent relationship. Cases have gone both ways and it truly depends on the facts of the case if said provision would be appropriate for your circumstances. Please contact us at 517.351.6222 or by email at info@jwbissell.com to discuss your particular circumstances.