Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (”BAPCPA”), a complaint for nondischargeability is governed by the provisions of § 523 of the United States Bankruptcy Code as they existed after BAPCPA’s passage. Section 523(a)(15) provides in relevant part that:

(a) A discharge under section 727, . . . of this section does not discharge an   individual debtor from any debt —

(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5)[domestic support obligation] that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit[.]

The changes made to § 523(a)(15) by BAPCPA removed the balancing language that allowed a debtor to discharge a non-support divorce debt if the debtor could demonstrate that the debtor did not have the ability to pay the debt or the benefit of discharge to the debtor is greater than the detriment to the former spouse. It is no longer necessary for the court to make such a determination. The plain language of the statute now provides that all debts which qualify as domestic support obligations are nondischargeable.

In summary, to be excepted from discharge under this provision, the debt must: (1) be to a spouse, former spouse, or child of the debtor; (2) not be of the type described in § 523(a)(5), i.e. not a domestic support obligation; and (3) have been incurred in the course of a divorce or separation or in connection with a separation agreement, divorce, decree, or other order of a court.

In Michigan, the controlling Court on this issue is the Sixth Circuit Federal Court of Appeals.  The Sixth Circuit has ruled that a divorce judgment imposes upon a payor spouse the obligation to indemnify a former spouse if one of the parties’ joint creditors should call upon that spouse to pay a debt that the payor spouse was ordered to pay.  Gibson v. Gibson (In Re Gibson), 219 B.R. 195 (6^th Cir. BAP 1998).   The Gibson panel found that when a debtor incurs an obligation to pay a joint debt as part of a divorce proceeding, a former spouse could, by enforcing the terms of the divorce judgment, compel the debtor to honor the obligation, even in the absence of a hold-harmless clause and even though the debt was payable to a third party.

Therefore, for a person facing potential divorce and considering a Bankruptcy, it is absolutely essential to file for Bankruptcy before a divorce is final–otherwise, debts that might otherwise be discharged in a Bankruptcy may be transformed into non-dischargeable debts that can burden a payor spouse long after the ink is dry on a Judgment of Divorce.

Posted March 5, 2010

We have also recently welcomed Marcia Metzen as our new office manager.  She was the office manager of a Chicago, Illinois firm, Schain, Burney, Ross & Citron, Ltd., where she was employed for over 22 years.  Marcia is very happy to have relocated to beautiful Leelanau county!

You are re-marrying. In a re-marriage the financial and legal issues are often different than in a first marriage. There may be children, support obligations, home ownership and pension plans, and other areas of complication. With a prenuptial agreement, it is possible to ensure that neither the first family, nor subsequent families, are disinherited upon your death. Without a prenuptial agreement, it is easier for a current or previous spouse to overturn a last will or estate plan.

You plan to leave the workplace and become a stay-home parent. Leaving gainful employment for homemaking and child raising will decrease your income and wealth. It may decrease future employment and earnings opportunities. The prenup can specify that the financial burden of raising children will be shared equally by the spouses. It can guarantee financial recompense to the partner who gives up a work life outside the home.

Your wealth is much greater than that of your fiancé. Through a prenup, the fiance essentially signifies that she or he is marrying you for the person you are, not for your money.

You are much poorer than your fiancé. As well as protecting a spouse who is better off, the prenup can provide a financial safety net for a partner who is economically disadvantaged or vulnerable.

You make much more money in your job than does your fiancé. In many states, a prenup can place limits on the amount and duration of alimony that could be required in future.

Your partner has large debts. The prenup can prohibit the transfer to you of responsibility for such debts in the event that the marriage should come to an end.

You own part or all of a business. If the marriage of a business owner ends, the ex-spouse could claim part ownership of your business, or become the owner or a partner in the business, which may not be what you, or your partners, wish nor intend to happen. This is another financial area which a prenuptial agreement can safeguard.

If any these issues are a consideration in your life and upcoming wedding, it behooves you to consult a family law attorney for expert guidance on a prenuptial agreement to shield your assets and chosen heirs. Or if you have these considerations but are already married, talk with a family law attorney to learn how a postnuptial agreement also can shelter your interests.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., October 2, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

If you think these forms of communication are private and safe, think again. Think, for example, of former Detroit Mayor Kwame Kilpatrick, charged with numerous felonies on the basis of text-message evidence. Skytel, the service provider for Detroit city-owned cell phones, effortlessly retrieved 14,000 cell phone text messages that were sent four-to-six years ago, and these now form the foundation for the charges against Kilpatrick. If you e-mail, text message or otherwise communicate electronically on a government or employer-owned medium, every word you utter may be stored and retrievable.

Messages sent on individual or public (library, internet café) cell phones, computers or e-mail are no safer from discovery. Although Verizon, AT&T and Sprint state that they store text messages only for about two weeks or “not a long period” (whatever that means), hackers, police and private investigators frequently have retrieved old messages archived on carrier servers. Several software products are now sold which allow private individuals to secretly access and spy on others’ (such as a spouse’s) e-mail accounts. A Google survey reported that 27% of men and 21% of women had secretly prowled through someone else’s e-mail. Simple radio kits can also be purchased which let anyone intercept text messages, such as the Wal-Mart employee caught spying on a New York Times reporter. And of course, every bit of information put on blogs or social network sites is no more than a few clicks away from access by anyone.

What can be done to protect one’s electronic privacy? Primarily, never put anything on any electronic medium which you would not want published on the front page of the newspaper – not your PIN number, password, bank and asset information, those feelings of murder in your heart toward your ex, nor photos of the fun and tipsy night out at the local honky-tonk. Put passwords on your phone, wireless network and computer accounts to keep unwanted snoopers out. Erase all personal data from cell phones before recycling or discarding, using the phone manufacturers’ master reset instructions, which can be found on company websites. Just removing a SIM card does not remove a cell phone’s data history.

Remember, also, that whatever measures you take to safeguard your electronic utterances, none of it matters if the person to whom the text message or e-mail is sent has been less careful. Once information is posted or sent electronically, the sender has lost all control over where the information may wind up.

The only surefire guarantee your privacy won’t be invaded electronically is to keep private matters off electronic systems. If divorce, paternity, custody or other family law problems arise, the family law attorneys at Sterling Law Office are equipped to help resolve those problems, and to protect clients from electronic prying which could torpedo them in court.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., August 29, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

Within the boundaries of this broad framework of custody, a variety of possible arrangements can be set up, depending upon the particular family circumstances. Following is an explanation of how custody matters proceed and definitions of the various forms custody can take.

Defining custody during family dissolution: the issue of custody arises when parents of minor children decide to separate. Some couples cooperate and negotiate for themselves an agreement about custody for the short-term, while the separation or divorce gets settled, and also for the long-term. When the parents cannot agree on a custody plan, a hearing for temporary custody is held by the family court to issue an order that outlines a temporary custody assignment. Temporary custody is often granted to the person who remains in the family home, or who typically has done the majority of day-by-day care of the children. Temporary custody orders very often determine what the permanent custody order will be.

Mediation: if custody or a divorce proceeding is contested, Michigan family court requires the parties to attend mandatory mediation. Mediation is a method the courts use to try to resolve disputes without going to trial. The parties meet with a professional mediator to review and attempt to come to agreement on issues of contention, such as custody arrangements. When a custody plan is agreed upon in mediation, it can include a requirement that future custody or visitation disagreements must be returned to the mediation process.

Custody evaluation: when custody is in dispute, the family court may order a custody evaluation before a custody determination is made. The evaluation will include interviews with the parents, the children, and possibly other knowledgeable witnesses. It can also involve psychological testing of the parents and children. A court-appointed social worker, psychologist or other mental health specialist carries out the evaluation and then makes a recommendation on custody to the court. The evaluation process may take from one to three months.

Modification of custody: after a permanent custody agreement has been reached by the parties or ordered by the court, parents can go back to court to request a change or “modification” in the custody arrangement. In Michigan and the majority of states, to protect the children and parties from the turmoil of continuing court battles and upheaval, the parent asking for a modification must show a significant change in circumstances or “proper cause,” and the request must be made and proceed through the family court in the state where the children live.

Sole custody: sole physical custody means the children will reside primarily with one “custodial” parent. The other is the “non-custodial” parent, who will have a schedule for visitation (also known as parenting time) when the children may stay with that parent, such as on alternate weekends, certain holidays or school breaks, etc. Some families elect for one parent to have sole physical custody while sharing legal (decision-making) custody jointly. One parent would generally only have both sole physical and sole legal custody if the other parent presented some form of harm or danger to the children.

Joint custody: joint physical and legal custody means the parents share the responsibilities for both day-by-day care and living situation of the children, as well as decision-making for the children. Parents must be cooperative with one another and able to perform as a parent team to be able to function well with joint custody.

Bird nest custody: as with baby birds and implied by the name, bird nest custody means the children stay in the pre-separation family home, or in a new family home, and the parents move in and out according to their schedule of visitation. Again, this arrangement, while it can be reassuring and give continuity and a sense of security to the children, requires that the parents collaborate, co-parent and not be at hammer-and-tongs with one another.

Split custody: not used as frequently as other types of custody because it entails separating brothers and sisters, a split custody situation is when each parent has custody of different children.

Making decisions about custody is always going to be very hard for a parent. Inevitably it means giving up some part of time with and rearing of children. The manner in which a custody agreement is reached and the building blocks for the future which are laid in the process are of monumental importance for parents and children. The family law attorneys at Sterling Law Office strongly recommend that parents seek early, experienced legal assistance before tackling custody matters or choices.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., July 3, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

Because the government has not opened pathways for timely, practicable legal entry into the U.S. for seasonal workers or any others wishing to immigrate, there will continue to be large numbers of people with illegal immigrant status. Likewise, there will be more to come of the aggressive, scattershot and sweeping raids by Immigration and Customs Enforcement (I.C.E.) upon American businesses. According to its government website, www.ice.gov, I.C.E. now has over 100 special operations enforcement teams spread across the county, and in May alone these teams arrested 1,808 undocumented persons in the United States.

Judging by the agency press releases, I.C.E. appears to have ratcheted up its focus on arresting undocumented persons with criminal offenses against children, which is a very commendable effort and certainly could advance the security of the homeland. They have also, however, continued to go after more and more businesses with search warrants and surprise raids, including arresting 60 undocumented workers at 11 taco restaurants in the San Francisco Bay area in May; arresting 400 hourly workers at a poultry processing plant in Batesville, Arkansas in April; and 34 workers at a Heber, California farm-labor contracting company in June.

After I.C.E. raided and detained (inside cattle sheds) some 400 workers at a kosher meat processing business in Iowa last month, those arrested were denied proper due process and rushed through federal hearings set up inside the cattle barns. I.C.E. prosecutors gave the undocumented detainees a Solomon’s choice. Within seven days, they had to choose between: 1) plead guilty to criminal charges, agree to deportation without a hearing to determine options for remaining in the country, and likely receive prison time; or 2) refuse the plea bargain and face tougher charges and punishment ahead.

Pursuing undocumented immigrants whose crime is working without a visa, or being an undocumented spouse or child living in the United States, does nothing to advance homeland security. It does harm to persons and American families who are among the most vulnerable, poor and undefended.

These military actions punish business owners, as well, with fines that can be very onerous, especially for small businesses such as family farms or family-owned restaurants and resorts. If I.C.E. determines that a business has employed unauthorized immigrants, it can impose a first offense civil penalty of not less than $275, not more than $2,200 for each undocumented worker. A second offense shoots the fines up to a minimum $2,200 and maximum $5,500 for each worker; and a third offense raises the cost to the business for each unauthorized employee to $3,300 minimum and $11,000 maximum. Business owners and managers can also be prosecuted criminally and be in jeopardy of jail time.

Employers are held responsible not only for workers they hire themselves, but also for undocumented workers supplied to them by labor contractors or employment agencies, and workers paid as independent contractors rather than as employees. Other, additional fines can be levied for each and every incorrectly completed federal form I-9.

If Congress had the courage to develop and implement immigration laws that give family members and workers a means of making the United States their home without having to wait many years or decades or face deportation, it would clearly benefit the immigrants, U.S. businesses, the economy, and the richness of our common culture. Until that occurs, businesses and individuals with questions about immigration law are invited to consult the knowledgeable and experienced immigration lawyers at Sterling Law Office for advice and assistance. For press releases and events supporting immigration law reform, see the website of the American Immigration Lawyers Association, www.aila.org.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., June 12, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

Usually if a man wishes to secure the rights of a father to a child who is born out of wedlock, he must take action upon the birth of the child to lay the groundwork. He should have his name inscribed on the baby’s birth certificate as the father, if it is possible to do so, sign an acknowledgement of paternity with the Friend of the Court, file an action with the family court to establish paternity, or adopt the child if he is not the biological father. For men who are involved as father-figures with non-biological children (for example, with a child born to a girlfriend and conceived with a different man), it’s crucial to legally establish the relationship in order to protect the right to continue a relationship with the child in the future, even if the mother and the man don’t stay together.

Equally, if a man is being pursued for paternity and financial support for a child born out of wedlock which he did not conceive and with whom he does not have nor desire a relationship, a very fast and painless swab taken from inside the mouth can provide the DNA to defeat such a claim.

For children conceived or born during a marriage, or even within months after a divorce, but who were not conceived by the husband, Michigan family law weighs in heavily on the side of holding that the husband is the recognized and responsible father. Clearly, how this situation gets legally interpreted and enforced can have life-altering consequences for the husband whose wife conceives outside the marriage or for the man who conceives a child with a woman who is or recently was married to another man.

The “equitable parent” doctrine of state law holds that a husband who isn’t the biological father may be considered the father for all legal and parental purposes if the husband and child mutually acknowledge a father-child relationship or if the mother has helped develop such a relationship. The husband can choose to have the same rights to that child as if he were the biological parent and could prevent the biological father from gaining those rights.

On the other hand, a husband with a non-biological child conceived or born during his marriage can be prevented from denying the paternity and all responsibilities for that child by the “equitable estoppel” doctrine of Michigan family law. Thus a husband could end up having to take parental rights over a child who is not his and whose entry into this world was none of his choosing.

Generally speaking, Michigan paternity law has evolved with the priority of protecting the best interests of children. It is complex and multi-faceted, however, and for those facing paternity issues, the assistance and case-specific advice of experienced and savvy family law attorneys like those at Sterling Law Office is of paramount importance. While litigating matters of paternity does cost money, considering what clients potentially could stand to lose or to gain, it is one of the wisest investments that can be made.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., June 3, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

Sterling Law Office family law attorneys pursue client legal goals with the most efficient, minimal cost because we recognize that our clients also have budget limits and financial goals, especially in the current difficult economic times. On the client’s part, there are a number of things that can be done to control and reduce legal fees, and other potential costs of a family law case.

For starters, clients can cut down significantly on background research time on their case by fully completing all information that is requested at the initial consult, usually in the form of an intake questionnaire. Every kernel of information, such as account numbers, pension plans, family member birthdays and Social Security numbers, etc., which the client supplies saves time-and-money consuming phone calls and correspondence by the law office. When you prepare for the first consultation with a family law attorney, compose a file to bring along that includes copies of all family financial, educational, property, demographic and other information which is relevant to your case. Leaving copies of such documents with your attorney will give a serious boost to the “paper chase” for your matter, as well as saving time, paper and postage costs of the law office having to make the copies and return the originals to you.

A letter or e-mail offers an economical means of communicating information and questions to your attorney. Receiving information or questions in writing gives the attorney a chance to digest the information, research any questions, and devise advice before communicating with the client. A written document also can help the client organize thoughts and can be kept in the client file for future reference. This is a much more efficient use of the attorney’s and the client’s time than long, explanatory phone calls. Treat your attorney as your legal advisor, not as a therapist or a friend, and if it is a matter of venting emotion, dealing with psychological problems or getting moral support, turn to family, friends or professional counselors.

Because clients are billed for time the attorney spends on the matter, whenever the client can do his or her own negotiating it saves money. In a divorce or custody matter, for example, if the parties can discuss and come to agreement between themselves on any issues, each item worked out by the parties saves attorney time spent preparing for and dealing with the opposing attorney, the Friend of the Court, and other family court departments. Any item which would make up part of a divorce agreement (such as who keeps specific personal property, who pays insurance costs, division of parenting time and holidays, who pays credit card bills, etc.), will quickly build cost savings if worked out by the partners themselves. Thus, use of the professional negotiating skills of the attorney can be saved for issues on which agreement cannot be reached.

Trying to hold on to the family home, while tempting for many people, may not be a good financial choice in a divorce. Spousal support can help cover mortgage payments, but clients need to look at the total cost of maintaining the property, repairs and upkeep, taxes, and mortgage payments to determine if it really is feasible for one person to afford. Whoever keeps the house will also have to buy out the other spouse’s financial interest in the property.

If spouses make a clean and complete separation of their finances when they part, it protects each from having their credit hurt by payment defaults of the other. For example, if the couple continue to hold credit cards in common, one partner can drive up the debt and seriously hurt the other’s credit score. If one spouse promises in the divorce agreement to pay off certain creditors or a mortgage, then defaults on that promise, the creditor or bank can sue both partners if their names are both still on that asset.

It is very important to understand the different tax treatment of alimony versus child support. Alimony generally is taxed as income to the person receiving it, while child support generally is not taxable. Each type of payment has different rules for how long it will continue, as well, and the circumstances which can increase or decrease payments. The experienced family law attorney, like those at Sterling Law Office, will make certain you thoroughly understand the rules governing these two types of payment.

Finally, to save yourself and your heirs substantial costs in probate, taxes and the distress of conflict over inheritance, every client who completes a divorce must review and revise their estate plan, or create one if they haven’t yet done so. Wills, trusts and beneficiaries can all be impacted by a divorce. To ensure that assets are protected for the intended heirs, and that a client’s final wishes are carried out regarding health care, financial control, and other matters, an up-to-date estate plan is necessary.

By implementing the above cost-savings and planning, Sterling Law Office family law clients can remain on stable, solvent financial ground through the course of a marital dissolution. We help our clients disprove the infamous bumper sticker of a Chicago divorce attorney, which reads “Love is grand, divorce is $40 grand!”
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., April 18, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

The petition drive and the bus trip grew out of an event last fall organized by a coalition of citizens, myself among them, concerned about the integrity of the Michigan Supreme Court. “Judicial elections are becoming political prize fights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution,” read the banner quoting retired U. S. Supreme Court Justice Sandra Day O’Conner at an October 25, 2007 forum, “Courting Trouble, Threats to a Fair and Independent Michigan Supreme Court.” Guest speakers Detroit Free Press columnist Brian Dickerson, Rich Robinson of the Michigan Campaign Finance Network, and Michigan Supreme Court Justice Elizabeth Weaver addressed the overflow crowd of mostly non-lawyers.

“How many of you have been a party to a case before the Michigan Supreme Court?” Mr. Dickerson asked. No one raised a hand. However, after hearing about court decisions affecting a range of subjects from no fault auto insurance to the environment, attendees concluded that each of them had indeed been involved in one form or another and that there exists the appearance that justices deciding these cases may have been answering to their campaign contributors instead of to the law.

$23 million has been spent since 2000 to elect Michigan Supreme Court justices. Nearly half of that sum has gone into unidentified, unreported candidate-focused issue ads disparaging the other candidate. After what some call “justice for sale,” 86% of cases before the MSC involve a campaign contributor as a party. Public financing, full disclosure of campaign funding, and an improved system for conflict of interest recusals are required to avoid the appearance of impropriety. Supreme Court Justice Weaver is also calling for Senate confirmation of Supreme Court appointments and one eight-year term.

To take action on our concerns and to build on the energy created by the forum, the forum organizing coalition established the Michigan Independent Supreme Court Campaign (MISCC). Volunteers from MISCC coordinated the petition drive and arranged the bus trip to deliver the results. From the efforts begun in Traverse City, grass roots groups in other areas of Michigan are planning similar educational events. Senator McManus pledged to move forward on the issue, but the results remain to be seen. While the delegation was at the Capitol, House Democrats did introduce a new judicial candidate public financing bill to join a Senate version already on the table. The efforts may eventually restore public confidence in the Court but it is too late to stop the ugly process for 2008.

While the public is distracted by the upcoming presidential election, special interests will be as focused on this year’s most expensive judicial race in Michigan history. Incumbent Republican Clifford Taylor is expected to wage a high stakes battle against a candidate chosen by the Democratic Party. While the ballot will not indicate their parties’ sponsorship, it will designate Justice Taylor as the incumbent. Always an advantage in the past, in this election year, the incumbency designation could remain an unfair advantage or become a liability, depending on the perception of the electorate and its disgust for the secretly-sponsored offensive campaign that is expected. Visit www.miscc.org for more information.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., April 1, 2008

Lea Ann Sterling received her J.D. from The Ohio State University College of Law in 1980 and got to Michigan as soon as she could where she established Sterling Law Office in Empire. Her practice with associate attorney Wendy K. Bailey includes Family Law, Social Security Disability, and Personal Injury. Sterling Law Office appears to be the only firm north of Grand Rapids specializing in Immigration Law where they counsel businesses on worksite compliance and assist families with this complex area. Lea Ann is married to Lanny Sterling and has three children. Among other activities leading some to call her a “renaissance woman,” Lea Ann enjoys writing about history and is the author of Historic Homes of Olde Towne and Historic Cottages of Mackinac Island. She appeared as an expert on the 1788 settlement of Marietta, Ohio in the 2003 documentary “Opening the Door West.” Googling “Lea Ann Sterling” would lead you to believe the name applies to at least five different people, but it’s all her. In addition to GTLA Bar, she is also a member of the Michigan Association for Justice and the American Immigration Lawyers Association.

The information presented in this article is for general information only and should not be construed to be legal advice.