DO YOU WANT YOUR CHILDREN TO LIVE WITH YOU?

When you feel your children would be better of living with you rather than your ex spouse who has child custody what can you do? #childcustody

PROVE A PROPER CAUSE OR  CHANGE IN CIRCUMSTANCES

There are several important steps the first discussed here is a court determination that a” change of circumstances exists.”

Additional questions about change in custody can be found by contacting  Flint Divorce Attorney Terry R. Bankert 1000 Beach St. Flint MI 810-235-1970 or terry@attorneybankert.com #flintdivorce

A RECENT DENIAL OF A FATHER'S MOTION TO CHANGE CUSTODY

In a recent Michigan Court of Appeals Case, looking at Kent Circuit Court,LC No. 12-005913-DM case Defendant father  appeals as of right a May 13, 2014 order, with several other issues, denying his motion for change of custody in regard to the parties’ minor child,

TO DETERMINE CHANGE OF CIRCUMSTANCES REQUIRES IS WHAT IS COMMONLY CALLED A VODVARKA HEARING

In Child custody modification of a custody order the controlling state statute is; MCL 722.27(1)(c) while the controlling case law is Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “

When the Michigan Court of Appeals reviews a child custody modification of a County trial court decision, here ,Kent Circuit Court,LC No. 12-005913-DM,  to deny a motion for change in custody   it determines  whether the trial court's finding that there was no "change of circumstances" or "proper cause" was against the great weight of the evidence; MCL 722.28;[1]

The Michigan Court of Appeals recently  held that the trial court,Kent Circuit Court,LC No. 12-005913-DM,  did not err by denying the defendant-father's motion for change of custody of the parties' minor child.[1]

The Michigan Court of Appeals held that the trial court's, In the Kent case,  finding that there was no change of circumstances or proper cause to support a change in custody was not against the great weight of the evidence.[1]

"None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child's life or well-being.[1]

 HOW A CHANGE OF CUSTODY DECISION IS MADE. THE FIRST HURDLE .

A child custody award may only be modified after there has been “proper cause

shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “[1]

The movant, the parent that wants a change,  of course has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists . . . .” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “ [1]

Proper cause” sufficient to warrant revisiting a custody order “means one or

more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.[1]

THE COURT LOOKS AT FACTS THAT HAVE CHANGED  SINCE THE ENTRY OF THE LAST ORDER  THAT ARE IMPORTANT OR MATERIAL TO THE CHILDS BEST INTEREST

To demonstrate a change of circumstances meriting consideration of a custody change, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially ]changed.” Id. at 513.  [1]

“[T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513-514. [1]

In the Kent Circuit Court,LC No. 12-005913-DM case the court did not find the required change in circumstances

As stated above a child-custody award may only be modified after there has been “proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c).  [2]

The purpose of the proper cause or change-of-circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003), [2]

None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child’s life or well-being. See Vodvarka, 259 Mich App at 512-513.[1]

At most, father’s allegations amount to nothing more than normal life changes for the child or minor inconveniences to father in his attempts to interact with mother. See id. at 512-514.[1]

While it is true that “a stipulation by the parties regarding a matter of law is not binding

on a court,” see Staff v Johnson, 242 Mich App 521, 529; 619 NW2d 57 (2000),the Michigan Court of Appeals  cannot characterize the factually based change-of-circumstances issue as purely a “matter of law.” In Vodvarka, 259 Mich App at 512, the Court stated, “Often . . ., the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the

facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.”[2]

In Washtenaw Circuit Court LC No. 13-001155-DC  the consent order did not reflect a clear temporary arrangement. Instead, it explicitly stated, “the parties stipulate that the parties minor child shall attend kindergarten in the State of Michigan until there is a determination of change of custody” (emphasis added).[2]

The parties stipulated on July 29, 2013, that there was, in fact, a change of circumstances, and the legal standard was satisfied. Vodvarka, 259 Mich App512.[2]

Under all the circumstances, the Michigan Court of Appeals  found “we conclude that the Washtenaw Circuit Court LC No. 13-001155-DC  ultimately erred in finding no change of circumstances sufficient to warrant a revisiting of the original custody order.[2]

If you have additional questions about change in custody please contact Flint Divorce Lawyer Terry R. Bankert 1000 Beach ST. Flint MI 810-235-1970 or terry@attorneybankert.com

Source [1]

STATE OF MICHIGAN COURT OF APPEALS,Before: M.J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.PER CURIAM.,UNPUBLISHED November 20, 2014

v No. 322082 Kent Circuit Court,LC No. 12-005913-DM

Source [2]

STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED November 18, 2014 v No. 320871

Washtenaw Circuit Court LC No. 13-001155-DC

e-Journal Number: 58667

RECENT MICHIGAN CASES DEALING WITH DIVORCE AND QDRO

FYI-Flint Divorce Bankruptcy Attorney Terry R. Bankert 235-1970, www.attorneybankert.com  asks DID YOU KNOW?.From Creative QDRO and EDRO Update By Nancy Keppelman, Stevenson Keppelman Associates, Ann Arbor.


Recent Cases in Michigan
Neville v Neville, No. 294461 (Mich. Ct. App. 2/16/12). A QDRO was entered in 1995 that gave the alternate payee a prospective coverture fraction share of the participant’s Ford General Retirement Plan benefit (50% of the “amount otherwise payable to the Participant” times 50% times years of service during the marriage divided by total years of service). The alternate payee was also to get pre- and post-retirement survivorship benefits. In 2009, the participant filed a motion to clarify and amend the QDRO, saying it gave the alternate payee more than she got in the judgment of divorce. The trial court entered an amended QDRO to correct perceived inconsistencies between the 1995 QDRO and the 1994 Judgment. The Court of Appeals reversed the lower court and vacated the amended QDRO on the grounds that the motion to amend the QDRO was untimely, and also finding that the QDRO, which was made a part of the Judgment, incorporated the terms of the agreement of the parties about the division of the pension, so that there was no inconsistency. The Court of Appeals relied on the provision of the Judgment which required that a QDRO be entered, and found that to the extent the terms of the Judgment might not completely resolve the terms of the division of the pension, the QDRO supplied those terms.

Roller v Roller, No. 300543 (Mich. Ct. App. 1/26/12) (unpublished). This case involved a dispute about the parenting time schedule and the interpretation of the Judgment of Divorce dividing a participant’s 401(k) account. The Judgment said that a QDRO would be entered that “will roll the balance” from the participant’s 401(k) plan “of approximately $44,000” to an IRA, and that the “approximately $44,000 balance represents what remains after the current loan of approximately $14,000 is paid-in-full from the approximately $58,000 that is currently in the plaintiff’s 401(k) account”. The participant argued that the alternate payee should get about $44,000, not the balance in the account after subtracting the unpaid loan balance. The Court of Appeals agreed with the trial court that the Judgment language was ambiguous, and interpreted the Judgment to mean that the alternate payee got 100% of the account balance after subtracting the outstanding loan balance. The Court held that the participant kept the outstanding loan and the obligation to repay it

Estate of Reed v Reed, No. 297528; 2011 Mich. App. LEXIS 1115 (Mich. Ct. App. 6/23/11). An ex-wife waived all rights to the husband’s retirement benefits, but the husband died before changing his designation of her as his beneficiary of the pension benefits. As required by the plan and ERISA, the plan paid the 401(k) account to the ex-wife after the participant’s death. The Court of Appeals held that, although the plan was required to pay the benefits to the ex-wife, because she had waived her rights to the benefits in the Judgment of Divorce, she was not entitled to keep the proceeds. This was true even though the Judgment was a default judgment. The Court required her to pay the plan benefits to the estate of the deceased husband.

Business Valuation in Divorce.

FYI-Flint Divorce Bankruptcy Attorney Terry R. Bankert 235-1970, www.attorneybankert.com  asks DID YOU KNOW?.From Creative Tax and Financial Tips for the Low Asset/Underwater Case By Mary V. Ade, Stout Risius Ross, Southfieldningham JD CPA PC Troy

Closely Held Businesses at the Low Point
A. Business Valuation Issues

1. Quantifying RiskEvery company is susceptible to two types of risk. These two types are systematic risk (or market risk) and non-systematic risk (or company, industry specific risk). The volatility observed in the market as a whole over the past few years has created a need to diligently separate these risksPut another way, every company is susceptible to market risk, but some are more susceptible than others. For example, the “mom and pop” hardware down the street and Home Depot are certainly both susceptible to the risk associated with the economy as a whole. However, it is easy to see how the “mom and pop” hardware is affected to a different extent.Additionally, the current economic environment has created an environment in which it is increasingly hard to identify company specific risks. Every business owner has a different story about how the recession affected their particular company.
• Every business owner has a story to support why the year of their divorce will be the worst year in the company’s history. Now, due to the uncertain economy, some of the stories are more believable.
• This stresses the importance of doing your “due diligence”, to separate the true from the alleged. The fact that many businesses are struggling does not strictly imply that every business is doing poorly.

FLINT DIVORCE, DIVORCE LAWYER 235-1970 TERRY BANKERT

I am a divorce lawyer in Michigan. My office is located across the street from The Genesee  County Court House downtown Flint Michigan.
http://attorneybankert.com

DID YOU KNOW THAT-Default judgments. §§1.46–1.50.
The grounds are same as in other cases (e.g., failure to plead or failure to comply with other court rules).
The party seeking a default files a default, notice of entry of default, and an affidavit of default, and sends notice of entry of default to all parties.
A default may be filed at any time after the grounds are established, but the waiting period or other requirements may delay entry of the default judgment.
If the defaulted party has appeared, the party seeking entry of the judgment must give the defaulted party written notice of the request for entry of the judgment at least seven days before the hearing. See §1.50 for what constitutes an appearance.
If the defendant has not appeared, a nonmilitary affidavit must be filed before the default judgment of divorce can be entered.


There will be no fee for our first meeting where I will explain how to file for divorce in Michigan
http://terrybankert.blogspot.com

DI D YOU KNOW THAT-Entry of the judgment.
A party must submit the judgment for entry within 21 days after the court’s opinion or a settlement was placed on the record, unless the court grants an extension. The court may require that the judgment be submitted to the Friend of the Court for review.
Methods for entering a divorce judgment after trial or after the parties place the settlement on the record:

• The court may sign the judgment when it grants the relief provided by the judgment.
• After the parties approve the judgment’s form, the court signs the judgment if it complies with the court’s decision.
• The parties may submit the judgment under the seven-day rule.
• The parties may prepare a proposed judgment and file a motion for settlement.

I have touched on or seen from start to finish thousands of divorces in Michigan since I entered the practice of law in 1994.
http://dumpmycreditors.wordpress.com

DID YOU KNOW THAT-Required provisions for divorce judgments.
All divorce judgments. §1.54.

• A determination of each party’s rights in insurance on the life of the other party.
• A release of dower rights.
• A determination of each party’s rights in pension, annuity, or retirement benefits; contributions to a pension, annuity, or retirement plan; and contingent rights in unvested benefits.
• The parties’ rights in property.
• A provision granting, reserving, or denying spousal support.
• If spousal support is nonmodifiable, a provision to that effect.

Divorces with minor children—additional required provisions. §1.55.

• A prohibition against moving the children’s residence outside Michigan or, in the case of a joint custody arrangement, a relocation agreement or mandated language prohibiting moving the children’s residence more than 100 miles away.
• A requirement that the custodial parent promptly notify the Friend of the Court in writing of any change of the children’s address.
• A statement by the court declaring the children’s inherent rights and establishing the rights and duties as to the children’s custody, support, and parenting time.

As everything else cost of divorce in Michigan has gone up in many jurisdictions. My prices have not raised in 4 years, in this economy how can we.
http://goodmorningflint.blogspot.com

DID YOU KNOW THAT-Modification of judgment provisions. §1.62.
Generally, divorce judgment provisions regarding child custody, parenting time, child support, and periodic spousal support are modifiable; property division and alimony in gross provisions are not.


You divorce forms in Michigan can be found in the County Law library and at book stores. With your family at stake I would suggest you seek legal counsel first.
http://occupyflintlegal.wordpress.com

DID YOU KNOW THAT-Relief from judgments.
Rehearing or new trial. §1.64.
May be ordered on a party’s motion filed within 21 days of entry of the judgment or on the court’s initiative during the same period (the order on the court’s initiative must specify the grounds).
The motion will be granted if a party’s substantial rights are materially affected by

• irregularity in the proceedings
• the prevailing party’s fraud or misconduct
• decision against the great weight of the evidence
• newly discovered material evidence that could not with reasonable diligence have been discovered and produced at trial
• the court’s error of law or mistake of fact
• void judgment
• any other reason justifying relief from the judgment

On a motion for a new trial, the court may

• set aside the judgment
• take additional testimony
• amend findings of fact and conclusions of law
• make new findings or conclusions and enter a new judgment

Amendment or correction. §1.65.
At any time, the court may amend the judgment to correct clerical or inadvertent errors; no change in circumstances is required.
A motion to amend on other grounds must be brought within 21 days after entry of the judgment.


Michigan divorce process take 180 if there are minor children involved and 60 days if there are not.
http://yoursocialmediasolution.com

DID YOU KNOW THAT-Setting aside judgments. §§1.67–1.72.
The parties’ stipulations to set aside—generally valid.
The defendant over whom jurisdiction was acquired but who did not know of the divorce judgment must file a motion for relief within one year after entry of the judgment. He or she must show adequate reason for relief and that innocent third parties will not be prejudiced.
Otherwise, on a motion brought within one year, a judgment may be set aside

• for mistake, inadvertence, surprise, or excusable neglect
• for newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
• for fraud (intrinsic or extrinsic), misrepresentation, or other misconduct
• for void judgment
• because the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application
• for any other reason justifying relief

See §§1.68–1.71 for further explanation of these grounds.
A motion to set aside a default judgment (except those based on lack of jurisdiction over the defendant) may be granted only if good cause is shown and an affidavit of meritorious defense is filed. Good cause requires a showing that

• there was substantial defect or irregularity in proceedings
• a reasonable excuse exists for the defendant’s failure to plead
• allowing the default to stand would cause manifest injustice

The court may also set aside a default judgment under MCR 2.612, Relief from Judgment or Order.
Enforcement of divorce judgments. §§1.74–1.78.
The court has inherent authority as a court of equity to enforce its own directives. The court may enforce provisions in the divorce judgment that the parties agreed to even if the court would not have had authority to order them without the parties’ consent.


If  you have additional questions please call 235-1970 or contact through http://attorneybankert.com

What is the Bankruptcy Estate? 235-1970

WHAT IS THE PROPERTY OF THE ESTATE IN BANKRUPTCY

Many divorcing couples also have financial problems leading to Bankruptcy.

A. Included Property

§17.5   11 USC 541 sets forth what is and what is not property of the bankruptcy estate. Generally, the bankruptcy estate consists of everything—“all legal or equitable interests of the debtor in property as of the commencement of the case”—with certain exceptions. Property of the estate also includes the following:

• interests in property recovered by the trustee or debtor
• interests in property preserved for the benefit of or ordered transferred to the estate
• inheritances, property settlements, or life insurance policies if entitled to receipt within 180 days of the petition date
• proceeds of estate property
• funds contributed to 11 USC 529 educational plans over a certain amount
• undivided co-ownership interests

Posted here by Flint Bankruptcy  / Divorce Attorney Terry Bankert 235-1970. See Http://www.attorneybankert.com

Property becomes estate property even if there are transfer restrictions on it or if the applicable agreements contain conditions related to the debtor’s insolvency or financial condition, or the commencement of a bankruptcy case (so called ipso facto clauses). However, the estate may not possess an interest greater in the property than the debtor had at the start of the case. In a Chapter 7 case, the bankruptcy trustee must administer all property of the estate by selling, or otherwise liquidating it if it can be liquidated, and reducing claims and causes of action to judgments that can be collected. Any property that is held by others, either wrongfully or not, must be brought into the bankruptcy case (by agreement or order) and be administered.

Timing also plays a role in whether certain assets are considered part of the estate. If a debtor becomes entitled to a divorce settlement, bequest, devise, inheritance, or the proceeds of life insurance within 180 days of the filing, these assets become property of the estate.

Importantly, exempt assets, §17.7, constitute property of the bankruptcy estate at the start of the case.

B. Excluded Property

§17.6   Items excluded from property of the estate are different from exempt assets because exempt assets are still part of the estate where excluded items never become part of the bankruptcy estate. Excluded items include the following:

• postpetition earnings of the debtor in a Chapter 7 case (although these earnings are included in a Chapter 11, 12, or 13 case)
• in general, property acquired postpetition (subject to exceptions noted in §17.5)
• property held for the benefit of the debtor in a trust that restricts transfer
• any power the debtor may exercise solely on behalf of someone else
• any interest of the debtor as a lessee under a lease of real property (not residential) that expired before the case or that expires during the case
• eligibility to participate in programs authorized under the Higher Education Act of 1965
• certain interests of the debtor in liquid or gaseous hydrocarbons
• funds placed in an educational individual retirement account or 11 USC 529 plan account in the 365 days before the petition, up to $5,475 of funds placed into the account between one and two years before the petition, and everything placed into the account more than two years before the petition
• amounts withheld and placed into an Employee Retirement Income Security Act of 1974 (ERISA)-regulated employee benefit plan, deferred compensation plan, or tax-deferred annuity

A full list of the items that are not included in property of the estate is found in 11 USC 541(b)(1)–(8). A divorcing client should contact bankruptcy counsel to determine the effect of these exemptions on divorce proceedings.

Michigan Family Law ch 17 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at
http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=17
(last updated 12/16/2011).