The law business is fascinating. So our law blog is provided to share some of the inside scoop of how it works in practice. Our law blog shifts from subject to subject, because that is how daily legal work goes. We hope our law blog provides some practical insight.
I am expecting divorce. What are my rights?
"Spouses beginning a divorce sometimes ask, “what are my rights.” Often, they are actually asking what they can legally do before or after the complaint for divorce is filed, but before entry of final judgment. In other words, what are spouses allowed to do during case pendency? Some compelling issues during case pendency can be (1) parenting time (especially if the parties are separated) and (2) interim issues regarding money, accounts, and personal property division.
It is not uncommon for “interim orders” to be entered during case pendency. And of course, everybody must obey all orders signed by a judge. For example, sometimes the court issues an interim order to maintain the “status quo” with respect to bill payments, paycheck deposits, medical insurance coverage, prohibitions against waste, and prohibitions against changes to beneficiaries on accounts and insurance policies.
The short answer to the initial question is that unless there is a court order stating otherwise either spouse may typically continue to do anything legal that they could have done if they were not expecting divorce. But just because a party might be able to legally empty out a joint bank account or unilaterally take the children on vacation to Timbuktu doesn’t mean it would necessarily be a good idea. You see, during the divorce process the court could order the return of funds or reverse a spouse’s acts with respect to the children. In Michigan, the Family Court is a division of the Circuit Court. And a Circuit Court judge has wide authority to make decisions during case pendency and in a final judgment that the court thinks are “fair and equitable.”
Like so many issues in the law business, the answer is not black and white. Divorcing spouses need to be informed of the risks and benefits of their actions prior to the filing a complaint and during case pendency. The circumstances of each situation must be considered before deciding what to do on a case-by-case basis. For example, a spouse might legitimately fear that his or her spouse will empty a joint bank account and squander the money. If the account is joint between the spouses, and if there are no court orders stating otherwise, either spouse could legally take joint account money and do whatever they want with it. But they would be risking the court might later demand an equitable return of the money. In some cases, it might be wise for a spouse to escrow money until a decision is made by the court. In other cases, it might be wise for a spouse to take half or more of the money from a joint account to pay necessary marital bills. Only spouses can make these decisions after weighing the risks and potential benefits.
Divorce and marital agreements
Prenuptial agreements are made between parties prior to marriage. Postnuptial agreements are made after marriage. Each is made in order to specify how property will be divided upon any future divorce. The law for each is similar - but not the same. Because they can be legally tricky and interpreted with nuance, I highly recommend attorney drafted documents for these things.
Assume a party has been married for a while and then agrees to draft a postnuptial agreement. Maybe one party inherited some money and wants to protect it from becoming a "comingled" marital asset. Or maybe the parties have separate careers and have grown accustomed to separate financial lives. Conversely, a stay-at-home mom might want assurance that she will not become a bag lady left with a gaggle of kids if her husband turns 40-something and starts wandering outside the marriage…
Among other things, postnuptial agreements are contracts that must not be made in contemplation of divorce, must be fair and equitable, and must contain “consideration”. The legal element of “consideration” is often misunderstood or overlooked in postnuptial agreements.Consideration means that both sides must get something of value (or be denied some legal right) or else the contract is void. In other words, both parties must be bound by the contract or neither is bound. A person drafting their own postnuptial agreement might give himself or herself a fixed share of assets upon divorce but forget to give their spouse anything. And that would end up being held to be a void contract for lack of sufficient consideration.
I wrote a winning legal brief on the subject and assure you that postnuptial agreements can be thrown out in court if they lack consideration! That is good if you are in a position like my client was, but not good if you were the one relying on a poorly drafted marital agreement. Stop Worrying, Contact Us.
Drunk driving stop and arrest
In theory, a police officer cannot stop you without some reasonable suspicion to do so (such as swerving in traffic, a burned out headlight or tail-lamp, a failure to signal, fuzzy dice hanging from the review mirror, etc). And once stopped, officer’s typically claim that they "smelled alcohol" thus giving them a reason to test for alcohol.
TIP: In Michigan, older terms for drunk driving such as DUI (Driving Under the Influence) and OUIL (Operating Under the Influence of Liquor) have been replaced with OWI (Operating while intoxicated) and OWVI (Operating While Visibly Impaired).
Drunk driving tips
As in all arrests, don't make sudden moves that scare police officers, make you appear erratic, or make an officer think you are hiding anything.
Be polite! Your case will probably be harmed if you are not polite throughout the entire process. Prosecutors are less likely to deal nicely with you if an officer disapproves.
Respond with succinct and courteous answers such as "yes officer", "no officer", or "respectfully officer unless there is a law requiring me to answer, I decline to answer that question until I speak with a lawyer."
Give the officer your license, registration, and proof of insurance when asked.
Don't lie. If it is not in your best interest to answer a question consider responding with something like this: "respectfully officer, I will wait until I obtain the advice of an attorney before I make statements."
Do not make any confessions (the officer is not your priest, pastor, rabbi, new-wave spiritual advisor, etc).
An officer might ask for your consent to do something which he or she cannot otherwise do. One example is to ask you to look in the trunk of your car. You have the right to say something like "respectfully officer, I do not grant my consent."
You are typically on camera during your traffic stop, during the police car ride to the station, and during booking procedures. So do not talk unless it is a legal requirement (few), or else your statement(s) could incriminate you later.
An arresting officer is not your friend when stopping you for a traffic infraction. The officer is duty bound to build a case against you if he or she think you broke a law. So don't help an officer build a stronger case against yourself. If you do get arrested and go to trial, let the prosecutor figure it out.
When asked by the officer "how many drinks did you have", almost everyone says something like "two beers". If a later test shows a relatively high alcohol content in you, and if you eventually take a plea or get convicted, the sentencing judge will know that you lied to the police about alcohol quantity and he or she may sentence you harder because you lied. Consider responding with something like this: "respectfully officer, I prefer to wait until I obtain the advice of an attorney before I make statements."
You do NOT have to take the Preliminary Breath Test (PBT) which is usually a handheld device an officer asks a suspect to blow into at the scene of the stop. Refusing to take a PBT is only a civil infraction and a $100 fine. PBT results are typically a few points higher than the "official" Datamaster (chemical test) taken later at the police department. So by waiting to take the Datamaster you may no longer blow higher than the legal limit. On the other hand, if you were not drinking at all, consider taking the PBT just to hopefully prove your innocence and be on your way. (Don't confuse the PBT with the Datamaster test at the police department that you must blow into. Refusal to blow into the Datamaster will result in a mandatory 1-year license suspension.)
Field sobriety tests are simple physical and mental tests that an officer might ask you to do at the scene of the stop such as walk heel to toe, hold your arms out to the sides, count backwards, say the alphabet, touch your nose, etc. No matter how well clients do on the field sobriety tests, officers always seem to claim drivers fail them. I guess that a person who "passes" field sobriety tests is unlikely to get arrested and need to call me. If the officer wants you to take the field sobriety tests, he or she already thinks you are drunk and typically wants to build a stronger evidentiary case against you. You may not have to take these field tests. You can respond with something like "respectfully officer, am I required to take these tests" or "respectfully officer, I want to contact a lawyer before I take any such field tests." It is highly improbable that you will be granted a call to a lawyer at this point, but at least it may look better to a jury than outright declining.
Inform the officer of your medical conditions such as asthma and allergies that you have because they could affect the outcome of any tests.
Do not refuse to blow into the Datamaster machine (which is the chemical test typically given at the police station) unless you are willing to accept an automatic 1-year suspension of your driver’s license. And blow hard so you do not get a "technical refusal."
What's better, a trust or a will?
What's the difference between a will and a trust, and what should you have? The answer depends on your circumstances.
The majority of my clients can accomplish their estate planning objectives by having three relatively inexpensive documents professionally prepared: (1) a will, (2) a durable power of attorney for health care (medical directive), and (3) a durable power of attorney for finance. The will determines what happens to your property after death. The durable powers determine what happens to your body and property while you are still alive but incapacitated (remember the Terri Shiavo controversy). Each document must be customized for each situation.
Every adult should have a will, medical directive, and durable power of attorney for finance. A revocable living trust is an optional document that provides at least the following advantages: (1) privacy of non-public documents, (2) avoidance of probate, (3) tax avoidance for larger estates, and (4) care of special needs beneficiaries while protecting against government reimbursement for Medicaid and other expenses.
Many high-pressure trust mills solicit business from the elderly by claiming they must have a trust to avoid probate. But probate is not necessarily a problem. So, be careful before unnecessarily spending on a trust. And many people end up with purposeless naked trusts because they don't fund them. Funding a trust means to transfer property into a trust's name (houses, bank accounts, cars, etc).
So, do you need a will or a trust? The answer is that you always need a will, medical directive, and durable power of attorney for finance. Trusts are additional optional documents that are a good idea for many people, depending on family and financial situations.
Contract disputes and collections:
Recently, I have been involved in multiple contract cases involving independent contractors against homeowner associations, condominium associations, real estate people, developers, and property management companies. These are mostly collection matters brought by independent contractors who can't get paid for their work. If the amount owed is relatively "small" then it seems that some lawyers, judges, and courts think that the matter is not important enough to fight. Baloney! Contractors pay taxes, vote, and provided valuable services to their customers. They have every right to get paid for their work and to be heard by our judicial system.
If you are owed less than $6,500, then you can take your case to the Small Claims Division of the District Court on your own. Lawyers are not permitted to represent clients in the small claims court. Small claims are not "on the record" so the cases are not appealable. But since there are no lawyers and no record, Judges seem to have a lot of leeway to make quick decisions. If you are owed more than $6,500, or if you just prefer to have a lawyer take care of the matter, your case will be filed in the Civil Division of the District Court (if your claim is under $25,000). Sometimes relatively small civil cases would cost too much in attorney fees to retain a lawyer to fight the issue. Here is a state website link for information on Michigan small claims procedures: http://courts.mi.gov/administration/scao/forms/pages/small-claims.aspx
In my experience, folks who don't pay contractors won't pay just because a lawyer asks nicely. So I usually start with a demand letter giving the debtor 7 days to pay up. Then I usually prefer to file a collections lawsuit to get the debtors' attention. Settlement negotiations usually being in earnest once a debtor knows the contractor is willing to go to trial. Some tricksters try to get the contractor to "dismiss" the lawsuit while settlement negotiations are finalized. I have a better idea - pay up and then the lawsuit will be dismissed. Or at least get settlement discussions put "on the record" before a judge so the case is kept in the open.
One basis of most collection suits is "breach of contract." And remember, not all contracts need to be in writing. Oral contracts are often just as valid, especially in businesses where it is a trade practice to make a series of oral contracts. Or where the "course of dealings" between the parties has been a series of oral contracts. So don’t give up just because your contract was not in writing.
It can take months to reach a settlement on a bad debt. Or months to get a judgment for the debt. And even if you get a judgment, it is a whole new process to collect on it. Garnishment and liens on a debtor's property are collection options, but they can take more time and money. Nonetheless, my advice is to try collecting for work that you honestly performed. American contract law favors contract terms that parties agreed upon. "America's business is business" you know. So debtors better have a strong legal defense for failing to pay, or they will be held in breach of contract - or more. Stop worrying, contact us.
DUI / OWI license suspension appeal:
I challenged a client’s mandatory 1-year driver license suspension at a Michigan Secretary of State office. This license suspension appeal was necessary because the police officer claimed that my client refused to blow into the Datamaster machine at the police station. After cross examining the officer, and arguing in front of the hearing officer for over an hour, I won the appeal for my client. The key to keeping my client’s license was my thorough understanding the Datamaster machine and the required procedures. I understood the technicalities better than the officer who administered the test. Driver license appeals can definitely be won. But to win them, the lawyer must know the technical nuances of the testing devices and the procedures used in each case. Add in knowlege of Michigan’s complex drunk driving statute & some case law and the erroneously accused can be victorious. Losing a license for a year or more seems like a draconian penalty - so these matters must be fought vigorously!
Contact me if you want a lawyer who cares deeply about YOUR interests. Divorce, DUI, Wills, Criminal, Traffic, Civil Law, Contracts, Family Law, & General Law. Evening & weekend appointments. Rates are reasonable. Client communication is great. Stop worrying, contact us!
"Popping the rag"
“Everybody hates lawyers - until they need one.” And when you need one, everyone says “get a good lawyer.” So what makes a good lawyer?
Because I am a lawyer, I meet lots of lawyers. And lately, I have run across a series of rag-popping windbag lawyers. From a 20-something lawyer who seems to think the way to impress his or her client is to continuously insult opposing council, to a 50-something lawyer who is verbally smooth, good-looking, and fact twisting to the extreme. Many Clients are fooled by such types and probably waste money paying them. But I don’t think it takes a law degree to recognize a charlatan lawyer. In law, like other trades, hard work almost always prevails over big mouths and nasty attacks. Victories usually come from preparation and outworking the opponent. Of course, good facts help too.
Additionally, knowing and applying the law will usually overcome any advantages that a Judge’s personal lawyer-friends might have in court. You see, I think courts prefer prepared lawyers over slick or misleading ones. When I hear lawyers “advertise” that their friendship with the Judge gives them some kind of “in” regarding a case, I laugh to myself. I am on the inside of the legal system, and I assure you that I cannot imagine a Judge siding with a personal friend who does not also have legitimate winning arguments. We do not live in a banana republic.
