by Jim Fausone
Veterans Lawyer
Veterans Affairs has recently vowed to eliminate the backlog in veterans benefits claims by the end of 2015. There is a million claim backlog across all levels and it takes years to process a claim. However, VA says all those seeking payment will have to wait no longer than three months. How could this be done?
Examples given include a new benefits calculator to help VA workers more easily calculate payouts for hearing deficiencies, a process that has allowed those claims to be processed more quickly and accurately. New calculators are being expanded to cover nine other conditions in upcoming months. VA is also looking to retain hundreds of part-time claims processors as full-time workers to help drive down the backlog. Recent improvements to online benefits applications and electronic medical records have sped up processing times for certain illnesses to fewer than 30 days.
Veterans deserve timely response to claim applications and appeals. Justice delayed is justice denied. But just proclaiming it will end in 2015 does not give anyone comfort VA will accomplish this goal.
http://www.stripes.com/va-hopes-to-eliminate-backlog-in-benefits-claims-by-end-of-2015-1.129125
To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com
Experienced and practical Michigan attorneys solving the problems of business owners, their families, and veterans... one case at a time.
Tuesday, December 21, 2010
Monday, December 20, 2010
Vietnam Movie Tribute
by Jim Fausone
Veteran Attorney
A local Michigan documentary film producer, Keith Famie, has a new film out about the Vietnam generation. This DVD follows on the heels of his critically acclaimed film "Detroit: Our Greatest Generation " about Detroit's role in WWII. Keith is a dedicated and skilled storyteller and film maker. I have seen him lug his gear to events, parades, the moving wall and posts to talk to real veterans. He is preserving the history of our times.
I encourage you to check out his work and buy a DVD for a friend or loved one. Keith has scratched together the funding to make these documentaries and no one is getting rich off his work other than those whose history has been preserved. The project always needs financial support and you can assist by going to these websites to buy or contribute. Check it out at:
http://www.v-prod.com/trailer_vietnam.html or at http://www.ourvietnamgeneration.com/
To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com
Veteran Attorney
A local Michigan documentary film producer, Keith Famie, has a new film out about the Vietnam generation. This DVD follows on the heels of his critically acclaimed film "Detroit: Our Greatest Generation " about Detroit's role in WWII. Keith is a dedicated and skilled storyteller and film maker. I have seen him lug his gear to events, parades, the moving wall and posts to talk to real veterans. He is preserving the history of our times.
I encourage you to check out his work and buy a DVD for a friend or loved one. Keith has scratched together the funding to make these documentaries and no one is getting rich off his work other than those whose history has been preserved. The project always needs financial support and you can assist by going to these websites to buy or contribute. Check it out at:
http://www.v-prod.com/trailer_vietnam.html or at http://www.ourvietnamgeneration.com/
To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com
Friday, December 17, 2010
Zero Tolerance Needed for MST
by Jim Fausone
Veteran Lawyer
We have written about the MST problem before. Military Sexual Trauma broadly covers rape, sexual harassment and discrimination. We deal with the aftermath when veterans seek compensation for MST. About 80 percent of unwanted or threatening sexual acts are not reported. Victims who report abuse to their superiors often face social isolation, retribution and counter accusations.
The ACLU has filed a suit seeking information on the number of acquittals, convictions and sentences, the number of disability claims related to sexual trauma that were accepted and rejected, and the number of sexual harassment complaints. The government prosecutes 8 percent of military sex offenders, while 40 percent of civilian sex offenders are prosecuted, according to the lawsuit. This disparity in prosecution affects the handling of claims by VA as no contemporaneous records exist to establish service connection.
Let’s see if a federal court can force DOD to provide the information requested, if it helps stop MST and helps in getting veterans compensation for MST.
Read more at: http://www.npr.org/templates/story/story.php?storyId=132032056
To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com
Veteran Lawyer
We have written about the MST problem before. Military Sexual Trauma broadly covers rape, sexual harassment and discrimination. We deal with the aftermath when veterans seek compensation for MST. About 80 percent of unwanted or threatening sexual acts are not reported. Victims who report abuse to their superiors often face social isolation, retribution and counter accusations.
The ACLU has filed a suit seeking information on the number of acquittals, convictions and sentences, the number of disability claims related to sexual trauma that were accepted and rejected, and the number of sexual harassment complaints. The government prosecutes 8 percent of military sex offenders, while 40 percent of civilian sex offenders are prosecuted, according to the lawsuit. This disparity in prosecution affects the handling of claims by VA as no contemporaneous records exist to establish service connection.
Let’s see if a federal court can force DOD to provide the information requested, if it helps stop MST and helps in getting veterans compensation for MST.
Read more at: http://www.npr.org/templates/story/story.php?storyId=132032056
To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com
Thursday, December 16, 2010
Making College Expenses a Priority after Divorce
by Wendy Alton
According to a recent study, divorced parents contribute a significant amount less toward college for their children than parents that remain married. The study was discussed in a Washington Post article, and revealed that divorced parents spend nearly 1/3 less on college expenses than married parents. Obviously this is a huge difference and disadvantage to children of divorce. What can you do as a divorced parent to ensure that college expenses remain a priority?
First, to clarify, Michigan does not require a divorcing couple to have an agreement about college tuition or expenses. In fact, Michigan courts can only make or enforce decisions about your child until the child is 18 or graduates from high school, whichever is later. Thus, college expenses are frequently not addressed in a divorce, especially when the children of the divorcing couple are very young.
However, there are a number of things you can include in your divorce to help pay for college expenses. Of course you and your spouse will have to agree, because absent an agreement, the court will not force you to do it. Some ideas are as follows:
• You can agree as parents to equally share the college expenses incurred by your children, or share them on a percentage basis.
• You can agree to each contribute to a college fund that is held in trust for the children.
• You can formulate an agreement that has one parent paying tuition costs, while the other parent pays books, boarding, etc.
What is especially important, though, in formulating such an agreement to pay college expenses, is to define what college expenses will be paid, particularly:
• Will you pay for in-state or out-of-state tuition?
• Will you only pay if their grade point remains passing or above a certain grade?
• Will you require the student to obtain loans/grants/scholarships first?
• Is this for undergraduate only or post-graduate work?
The lesson is that if college for your children is important to you as you are divorcing, try to work out an agreement with your spouse to make it a priority. Be careful to negotiate exactly what each parent is prepared to provide, and what expectations are required. Also, you must have an attorney review such an agreement, because once it is signed, absent an agreement to change it, the agreement is binding and not subject to modification.
You can read the Washington Post article here:
http://voices.washingtonpost.com/college-inc/2010/12/divorced_parents_contribute_le.html
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
According to a recent study, divorced parents contribute a significant amount less toward college for their children than parents that remain married. The study was discussed in a Washington Post article, and revealed that divorced parents spend nearly 1/3 less on college expenses than married parents. Obviously this is a huge difference and disadvantage to children of divorce. What can you do as a divorced parent to ensure that college expenses remain a priority?
First, to clarify, Michigan does not require a divorcing couple to have an agreement about college tuition or expenses. In fact, Michigan courts can only make or enforce decisions about your child until the child is 18 or graduates from high school, whichever is later. Thus, college expenses are frequently not addressed in a divorce, especially when the children of the divorcing couple are very young.
However, there are a number of things you can include in your divorce to help pay for college expenses. Of course you and your spouse will have to agree, because absent an agreement, the court will not force you to do it. Some ideas are as follows:
• You can agree as parents to equally share the college expenses incurred by your children, or share them on a percentage basis.
• You can agree to each contribute to a college fund that is held in trust for the children.
• You can formulate an agreement that has one parent paying tuition costs, while the other parent pays books, boarding, etc.
What is especially important, though, in formulating such an agreement to pay college expenses, is to define what college expenses will be paid, particularly:
• Will you pay for in-state or out-of-state tuition?
• Will you only pay if their grade point remains passing or above a certain grade?
• Will you require the student to obtain loans/grants/scholarships first?
• Is this for undergraduate only or post-graduate work?
The lesson is that if college for your children is important to you as you are divorcing, try to work out an agreement with your spouse to make it a priority. Be careful to negotiate exactly what each parent is prepared to provide, and what expectations are required. Also, you must have an attorney review such an agreement, because once it is signed, absent an agreement to change it, the agreement is binding and not subject to modification.
You can read the Washington Post article here:
http://voices.washingtonpost.com/college-inc/2010/12/divorced_parents_contribute_le.html
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Wednesday, December 15, 2010
Planning Ahead Makes Holidays Special for Children of Divorce
by Wendy Alton
One of the most frequent questions & concerns I hear as a Michigan divorce lawyer is how to share time with the children around the holidays after a divorce. This can be one of the more difficult issues to work through, particularly because each parent wants to keep their holiday traditions alive, but will now need to share that time with the other parent.
There are no hard and fast rules in Michigan for sharing holidays after divorce. In fact, the courts generally encourage parents to come up with schedules that work best for them, and stick to those schedules. This is because each family has their own traditions, their own families, and often the parents can come up with a schedule that is far better for them than the court could ever impose.
In the absence of any kind of agreement between the parents, many courts do have parenting time guidelines that are published merely as “suggestions.” Each county differs, and the following represent some of the ideas or suggestions for how to share parenting time during the holidays.
• Macomb County: http://www.macombcountymi.gov/circuitcourt/friendofthecourt.htm:
o Dad: in odd years (2011, 2013, etc) has the children from 6pm on the last day of school for Christmas break through Christmas Eve at 9pm, at which time, Mom takes the children from Christmas Eve at 9pm until 7pm on the day before school begins. This would then reverse in even years.
• Livingston County: http://www.co.livingston.mi.us/friendofthecourt/pt4.htm:
o Alternate all holidays (parents decide who takes what holiday in what year)
o Christmas Eve, Christmas, New Years Eve, New Years are defined as 9am to 6pm
• Marquette County: http://www.co.marquette.mi.us/departments/friend_of_the_court/docs/ParentingTimeGuidelines/LOCAL.pdf:
o Dad: in odd years (2011, 2013, etc) has the children from 6pm on the last day of school for Christmas break through Christmas Day at 2pm. Mom has the children from Christmas Day at 2pm until 6pm on December 27th. Then the normal parenting time schedule resumes. This would then reverse in even years.
• Cass County: http://www.casscountymi.org/LinkClick.aspx?fileticket=DMsKstaerpA%3D&tabid=92&mid=800:
o Dad: in odd years (2011, 2013, etc) has the children on Christmas Eve at 9am until Christmas morning at 9am. Mom would have Christmas Day from 9am until December 26th at 9am. Normal parenting time would resume after that. This would then reverse in even years.
The State of Michigan also has extensive parenting time guidelines found here: http://courts.michigan.gov/SCAO/services/focb/parentingtime/FOC_Forms/pt_guidelines.pdf. Regarding holiday parenting time, the State of Michigan’s suggestions are identical to those of Macomb County. Again, these are merely suggestions in absence of a formal agreement between parents.
While it is easy to get wrapped up in what holiday time you want or feel as though you deserve with your children during the holidays, it is always helpful to try to look at the holiday schedule from your child’s perspective. The holidays are a magical and special time—keeping this as the main focus during your discussions and negotiations about holiday schedules will keep you focused on what is going to best for your children.
Divorced parents can make the holidays special for children by creating a holiday schedule that best suits their family, sticking to it so that the children know what to expect, and then making their holiday time with the children magical and memorable for years to come.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
One of the most frequent questions & concerns I hear as a Michigan divorce lawyer is how to share time with the children around the holidays after a divorce. This can be one of the more difficult issues to work through, particularly because each parent wants to keep their holiday traditions alive, but will now need to share that time with the other parent.
There are no hard and fast rules in Michigan for sharing holidays after divorce. In fact, the courts generally encourage parents to come up with schedules that work best for them, and stick to those schedules. This is because each family has their own traditions, their own families, and often the parents can come up with a schedule that is far better for them than the court could ever impose.
In the absence of any kind of agreement between the parents, many courts do have parenting time guidelines that are published merely as “suggestions.” Each county differs, and the following represent some of the ideas or suggestions for how to share parenting time during the holidays.
• Macomb County: http://www.macombcountymi.gov/circuitcourt/friendofthecourt.htm:
o Dad: in odd years (2011, 2013, etc) has the children from 6pm on the last day of school for Christmas break through Christmas Eve at 9pm, at which time, Mom takes the children from Christmas Eve at 9pm until 7pm on the day before school begins. This would then reverse in even years.
• Livingston County: http://www.co.livingston.mi.us/friendofthecourt/pt4.htm:
o Alternate all holidays (parents decide who takes what holiday in what year)
o Christmas Eve, Christmas, New Years Eve, New Years are defined as 9am to 6pm
• Marquette County: http://www.co.marquette.mi.us/departments/friend_of_the_court/docs/ParentingTimeGuidelines/LOCAL.pdf:
o Dad: in odd years (2011, 2013, etc) has the children from 6pm on the last day of school for Christmas break through Christmas Day at 2pm. Mom has the children from Christmas Day at 2pm until 6pm on December 27th. Then the normal parenting time schedule resumes. This would then reverse in even years.
• Cass County: http://www.casscountymi.org/LinkClick.aspx?fileticket=DMsKstaerpA%3D&tabid=92&mid=800:
o Dad: in odd years (2011, 2013, etc) has the children on Christmas Eve at 9am until Christmas morning at 9am. Mom would have Christmas Day from 9am until December 26th at 9am. Normal parenting time would resume after that. This would then reverse in even years.
The State of Michigan also has extensive parenting time guidelines found here: http://courts.michigan.gov/SCAO/services/focb/parentingtime/FOC_Forms/pt_guidelines.pdf. Regarding holiday parenting time, the State of Michigan’s suggestions are identical to those of Macomb County. Again, these are merely suggestions in absence of a formal agreement between parents.
While it is easy to get wrapped up in what holiday time you want or feel as though you deserve with your children during the holidays, it is always helpful to try to look at the holiday schedule from your child’s perspective. The holidays are a magical and special time—keeping this as the main focus during your discussions and negotiations about holiday schedules will keep you focused on what is going to best for your children.
Divorced parents can make the holidays special for children by creating a holiday schedule that best suits their family, sticking to it so that the children know what to expect, and then making their holiday time with the children magical and memorable for years to come.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Tuesday, December 14, 2010
Charged with Retail Fraud? – What You Need to Know
by Melissa Cox
Retail Fraud, or "shoplifting," is a great concern for retailers and law enforcement agencies. According to the National Association for Shoplifting Prevention (NASP), retailers lose more than $35 million dollars of stolen merchandise each day. So, when you read the sign that says, "Shoplifters will be prosecuted to the fullest extent of the law," you can bet on it!
If you have been arrested for retail fraud, the potential consequences vary greatly depending on whether you are charged with a misdemeanor or a felony. This decision is most heavily based on the value of the merchandise(s) involved in the transaction.
In the state of Michigan, there are three types of Retail Fraud:
• First Degree Retail Fraud - Felony. This occurs when the value of the merchandise involved is greater $1000.00, or if the accused has a prior conviction for First or Second Degree Retail Fraud.
o Maximum Penalties: 5 years prison time; $10,000.00 fine or 3 times the value of the merchandise.
• Second Degree Retail Fraud - Misdemeanor. This occurs when the value of the merchandise involved is between $200.00 and $1000.00, or if the accused has a prior conviction for Third Degree Retail Fraud.
o Maximum Penalties: 1 year jail time; $2,000.00 fine or 3 times the value of the merchandise.
• Third Degree Retail Fraud – Misdemeanor. This occurs when the value of the merchandise involved is under $200.00.
o Maximum Penalties: 93 days in jail; $500 fine or 3 times the value of the merchandise.
In addition to these criminal penalties, a person accused of retail fraud may also be subject to civil penalties which include payment of the full retail price of the unrecovered or unsalable merchandise and civil damages of ten times the retail price of the property (not less than $50.00 and not more than $200.00).
Typically, retail fraud consists of a person removing merchandise from a store. However, under Michigan law, other forms of retail fraud exist, such as altering/switching price tags; conspiring with a store employee to steal; and fraudulent return of merchandise.
The consequences are potentially severe for anyone charged with the crime. However, more than 20% of retail fraud is committed by teenagers, and convictions for retail fraud can have serious consequences for a young person’s future employment, college admissions, financial aid options and other financial opportunities. For example, a person with a felony retail fraud conviction cannot receive federally guaranteed student loans.
If you have been charged with retail fraud, you need a knowledgeable criminal defense attorney to represent you. For more information, please contact Mark Mandell at 248-380-0000, ext. 241 or Melissa Cox at 248-380-0000, ext. 240.
Retail Fraud, or "shoplifting," is a great concern for retailers and law enforcement agencies. According to the National Association for Shoplifting Prevention (NASP), retailers lose more than $35 million dollars of stolen merchandise each day. So, when you read the sign that says, "Shoplifters will be prosecuted to the fullest extent of the law," you can bet on it!
If you have been arrested for retail fraud, the potential consequences vary greatly depending on whether you are charged with a misdemeanor or a felony. This decision is most heavily based on the value of the merchandise(s) involved in the transaction.
In the state of Michigan, there are three types of Retail Fraud:
• First Degree Retail Fraud - Felony. This occurs when the value of the merchandise involved is greater $1000.00, or if the accused has a prior conviction for First or Second Degree Retail Fraud.
o Maximum Penalties: 5 years prison time; $10,000.00 fine or 3 times the value of the merchandise.
• Second Degree Retail Fraud - Misdemeanor. This occurs when the value of the merchandise involved is between $200.00 and $1000.00, or if the accused has a prior conviction for Third Degree Retail Fraud.
o Maximum Penalties: 1 year jail time; $2,000.00 fine or 3 times the value of the merchandise.
• Third Degree Retail Fraud – Misdemeanor. This occurs when the value of the merchandise involved is under $200.00.
o Maximum Penalties: 93 days in jail; $500 fine or 3 times the value of the merchandise.
In addition to these criminal penalties, a person accused of retail fraud may also be subject to civil penalties which include payment of the full retail price of the unrecovered or unsalable merchandise and civil damages of ten times the retail price of the property (not less than $50.00 and not more than $200.00).
Typically, retail fraud consists of a person removing merchandise from a store. However, under Michigan law, other forms of retail fraud exist, such as altering/switching price tags; conspiring with a store employee to steal; and fraudulent return of merchandise.
The consequences are potentially severe for anyone charged with the crime. However, more than 20% of retail fraud is committed by teenagers, and convictions for retail fraud can have serious consequences for a young person’s future employment, college admissions, financial aid options and other financial opportunities. For example, a person with a felony retail fraud conviction cannot receive federally guaranteed student loans.
If you have been charged with retail fraud, you need a knowledgeable criminal defense attorney to represent you. For more information, please contact Mark Mandell at 248-380-0000, ext. 241 or Melissa Cox at 248-380-0000, ext. 240.
Monday, December 13, 2010
Judge Tosses Out Prenup: Dodgers ownership still undecided
by Wendy Alton
There is no dispute that the divorce of Frank & Jamie McCourt has been the most publicized divorce this year, particularly since the ownership of the Dodgers will ultimately be determined in the divorce.
It appears that Frank & Jamie McCourt had a prenuptial agreement drawn up, but the testimony revealed that there were different versions of this agreement—one giving the Dodgers to Frank, and one sharing the Dodgers between Frank & Jamie. The Judge heard testimony for days about this issue, and finally made his decision.
In a 100 page opinion (and yes, that is a very LONG opinion), the Judge tossed out the prenuptial agreements. The Judge ruled that the evidence showed that Frank & Jamie McCourt never fully agreed on any terms regarding the Dodgers, and that each has a mistaken belief about the alleged differing prenuptial agreements. The result is that the Dodgers will not be divided pursuant to any prenuptial agreements between Frank & Jamie McCourt.
What does that mean now? Well, the Judge will eventually have to decide who owns the Dodgers. Frank McCourt will argue that he bought the Dodgers, that they are owned in his own name, and that the team is his own personal property. Jamie McCourt will argue that the team was purchased during the marriage and that it is marital property, subject to a 50/50 split.
Lessons to be learned? If you hire a lawyer to draft a prenuptial agreement—it is probably important to make sure that there is only one version. Sounds easy, right? I would assume so—but doesn’t seem that way for the McCourts.
You can read about the Judge’s decision here:
http://content.usatoday.com/communities/dailypitch/post/2010/12/judge-rules-jamie-mccourt-is-co-owner-of-dodgers/1
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
There is no dispute that the divorce of Frank & Jamie McCourt has been the most publicized divorce this year, particularly since the ownership of the Dodgers will ultimately be determined in the divorce.
It appears that Frank & Jamie McCourt had a prenuptial agreement drawn up, but the testimony revealed that there were different versions of this agreement—one giving the Dodgers to Frank, and one sharing the Dodgers between Frank & Jamie. The Judge heard testimony for days about this issue, and finally made his decision.
In a 100 page opinion (and yes, that is a very LONG opinion), the Judge tossed out the prenuptial agreements. The Judge ruled that the evidence showed that Frank & Jamie McCourt never fully agreed on any terms regarding the Dodgers, and that each has a mistaken belief about the alleged differing prenuptial agreements. The result is that the Dodgers will not be divided pursuant to any prenuptial agreements between Frank & Jamie McCourt.
What does that mean now? Well, the Judge will eventually have to decide who owns the Dodgers. Frank McCourt will argue that he bought the Dodgers, that they are owned in his own name, and that the team is his own personal property. Jamie McCourt will argue that the team was purchased during the marriage and that it is marital property, subject to a 50/50 split.
Lessons to be learned? If you hire a lawyer to draft a prenuptial agreement—it is probably important to make sure that there is only one version. Sounds easy, right? I would assume so—but doesn’t seem that way for the McCourts.
You can read about the Judge’s decision here:
http://content.usatoday.com/communities/dailypitch/post/2010/12/judge-rules-jamie-mccourt-is-co-owner-of-dodgers/1
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Friday, December 10, 2010
Female Veteran Suicide Crisis
by Jim Fausone, Veteran Attorney
The first large scale study of female veterans found that female veterans — age 18 to 34 — are three times as likely as their civilian peers to die by suicide. Veterans make up 20% of the people who commit suicide in the country. However veterans only make up 12 % of the population. Female veterans are particularly vulnerable and everyone needs to be aware of this crisis and respond accordingly. How will VA, VSOs and health care providers respond?
Read more at: http://www.npr.org/2010/12/04/131797071/study-female-vets-especially-vulnerable-to-suicide
The first large scale study of female veterans found that female veterans — age 18 to 34 — are three times as likely as their civilian peers to die by suicide. Veterans make up 20% of the people who commit suicide in the country. However veterans only make up 12 % of the population. Female veterans are particularly vulnerable and everyone needs to be aware of this crisis and respond accordingly. How will VA, VSOs and health care providers respond?
Read more at: http://www.npr.org/2010/12/04/131797071/study-female-vets-especially-vulnerable-to-suicide
Thursday, December 9, 2010
U.S. Supreme Court Case
by Jim Fausone, Veteran Attorney
This week the U.S. Supreme Court takes up the issue about when a veteran misses the 120-day appeal period. The Veterans Court has taken the position that it could not grant a deadline extension for any reason. The U.S. Court of Appeals for the Federal Circuit affirmed, based on a high court 2007 decision, saying federal time limits are not subject to judges' discretion unless Congress has written such flexibility into the law. Some of the judges in the Federal Circuit majority noted, however, that "the rigid deadline of the existing statute can and does lead to unfairness." In this case the Korean War veteran, Mr. Henderson, was suffering from psychiatric disability, bedridden and missed the appeal deadline. It will important to watch what the US Supreme Court holds. We will keep you updated on this important matter.
Read more at:
http://www.usatoday.com/news/washington/judicial/2010-12-03-supreme-court-veteran-disability-claims_N.htm
This week the U.S. Supreme Court takes up the issue about when a veteran misses the 120-day appeal period. The Veterans Court has taken the position that it could not grant a deadline extension for any reason. The U.S. Court of Appeals for the Federal Circuit affirmed, based on a high court 2007 decision, saying federal time limits are not subject to judges' discretion unless Congress has written such flexibility into the law. Some of the judges in the Federal Circuit majority noted, however, that "the rigid deadline of the existing statute can and does lead to unfairness." In this case the Korean War veteran, Mr. Henderson, was suffering from psychiatric disability, bedridden and missed the appeal deadline. It will important to watch what the US Supreme Court holds. We will keep you updated on this important matter.
Read more at:
http://www.usatoday.com/news/washington/judicial/2010-12-03-supreme-court-veteran-disability-claims_N.htm
Wednesday, December 8, 2010
Cheating Spouses on Facebook
by Wendy Alton
So it was just announced that San Antonio Spurs’ Tony Parker, currently divorcing from Desperate Housewife Eva Longoria, had a fling with a woman that he kept in touch with on Facebook. You can be absolutely sure that this isn’t just a celebrity phenomena. Facebook has made us all our own day-to-day celebrities as we broadcast what we do, where we go, and how we feel. We share our pictures, our jokes, our successes and our gripes. And yes, we are sharing our divorce battle stories.
Research conducted this summer showed that divorce attorneys are becoming more and more fluent in social networking sites—Facebook, MySpace, LinkedIn, YouTube and Twitter to name a few. Lawyers are using these sites to find out information about the other spouse during a divorce. There have been dozens of stories over the last year discussing how things a spouse posted online, whether a picture, wall post, or
status update, were used against that spouse in a divorce or custody proceeding.
This has become so prevalent, that there is now a website devoted solely Facebook cheating: www.facebookcheating.com. On that site, you can read articles to help you discover if your spouse is cheating, read stories of others who have experienced infidelity due to Facebook, and learn what to do with your Facebook page if you are going through a divorce.
So you ask, what exactly can be used against you from your Facebook page? EVERYTHING. Everything you say, every picture you post and every friend you have. Facebook comments, wall posts, status updates, friends, pictures and videos are admissible in Court for issues such as fault, custody, parenting time, child support, and property division.
In my own experience as a Michigan divorce lawyer, I have not only used Facebook evidence in divorce and custody proceedings, my opposing attorney has used the same against my own clients. For example, Facebook can be used to prove extra-marital relationships. It can be used to show alcohol use. Every disparaging comment said about your soon-to-be-ex-spouse is printed, saved, and presented to court to show that public derogatory comments are being made about the other spouse, and yes, that is considered by the court in a custody dispute.
It is absolutely essential to guard what you do online on Facebook if you are going through a divorce. The safest solution is to deactivate your Facebook page. This will take you page offline until you sign in next. You will not lose your friends, nor your posts or pictures—it will just take your page out of general public view. Once your divorce is final, then you can activate once again.
Some say that you should just adjust your privacy settings. However, remember that your friends will see everything you post—and during a divorce, sometimes your friends are not necessarily on your side. On the other hand, keeping your Facebook page allows you to see what your spouse may be doing, if they are on Facebook. After all, it is the war of the roses, right?
If you are interested in learning more about divorce, or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
So it was just announced that San Antonio Spurs’ Tony Parker, currently divorcing from Desperate Housewife Eva Longoria, had a fling with a woman that he kept in touch with on Facebook. You can be absolutely sure that this isn’t just a celebrity phenomena. Facebook has made us all our own day-to-day celebrities as we broadcast what we do, where we go, and how we feel. We share our pictures, our jokes, our successes and our gripes. And yes, we are sharing our divorce battle stories.
Research conducted this summer showed that divorce attorneys are becoming more and more fluent in social networking sites—Facebook, MySpace, LinkedIn, YouTube and Twitter to name a few. Lawyers are using these sites to find out information about the other spouse during a divorce. There have been dozens of stories over the last year discussing how things a spouse posted online, whether a picture, wall post, or
status update, were used against that spouse in a divorce or custody proceeding.
This has become so prevalent, that there is now a website devoted solely Facebook cheating: www.facebookcheating.com. On that site, you can read articles to help you discover if your spouse is cheating, read stories of others who have experienced infidelity due to Facebook, and learn what to do with your Facebook page if you are going through a divorce.
So you ask, what exactly can be used against you from your Facebook page? EVERYTHING. Everything you say, every picture you post and every friend you have. Facebook comments, wall posts, status updates, friends, pictures and videos are admissible in Court for issues such as fault, custody, parenting time, child support, and property division.
In my own experience as a Michigan divorce lawyer, I have not only used Facebook evidence in divorce and custody proceedings, my opposing attorney has used the same against my own clients. For example, Facebook can be used to prove extra-marital relationships. It can be used to show alcohol use. Every disparaging comment said about your soon-to-be-ex-spouse is printed, saved, and presented to court to show that public derogatory comments are being made about the other spouse, and yes, that is considered by the court in a custody dispute.
It is absolutely essential to guard what you do online on Facebook if you are going through a divorce. The safest solution is to deactivate your Facebook page. This will take you page offline until you sign in next. You will not lose your friends, nor your posts or pictures—it will just take your page out of general public view. Once your divorce is final, then you can activate once again.
Some say that you should just adjust your privacy settings. However, remember that your friends will see everything you post—and during a divorce, sometimes your friends are not necessarily on your side. On the other hand, keeping your Facebook page allows you to see what your spouse may be doing, if they are on Facebook. After all, it is the war of the roses, right?
If you are interested in learning more about divorce, or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Monday, December 6, 2010
Mental Disorders Affecting Americans
by Kristina Derro
A recent study by the Substance Abuse and Mental Health Services Administration (SAMHSA) revealed that more than 45 million Americans, or 20 percent of U.S. adults, had some form of a mental disorder last year. Of those individuals, 11 million suffered from a serious mental disorder to include bipolar or schizophrenia.
This rate included an increase in the finding of depression among adults. Researchers attributed this to the near-record rise in unemployment rates and financial struggles that most Americans had.
SAMHSA found that too many individuals were not getting the help that they needed and the opportunities to prevent a mental disorder, or intervene early when one was already diagnosed, were being missed. Unfortunately, researchers found that there was still a stigma associated with acknowledging and receiving help/counseling for a mental disorder. Compounding the problem was the fact that with the rise in unemployment what naturally follows is the loss of health insurance, leaving many individuals unable to receive treatment. This lack of treatment for individuals with mental disorders could lead to disability, substance abuse, suicides, lost productivity at work, and family discord.
A recent study by the Substance Abuse and Mental Health Services Administration (SAMHSA) revealed that more than 45 million Americans, or 20 percent of U.S. adults, had some form of a mental disorder last year. Of those individuals, 11 million suffered from a serious mental disorder to include bipolar or schizophrenia.
This rate included an increase in the finding of depression among adults. Researchers attributed this to the near-record rise in unemployment rates and financial struggles that most Americans had.
SAMHSA found that too many individuals were not getting the help that they needed and the opportunities to prevent a mental disorder, or intervene early when one was already diagnosed, were being missed. Unfortunately, researchers found that there was still a stigma associated with acknowledging and receiving help/counseling for a mental disorder. Compounding the problem was the fact that with the rise in unemployment what naturally follows is the loss of health insurance, leaving many individuals unable to receive treatment. This lack of treatment for individuals with mental disorders could lead to disability, substance abuse, suicides, lost productivity at work, and family discord.
Friday, December 3, 2010
Unemployability and Hearing Loss
by Kristina Derro
A recent decision by the Court, on one of our client’s claims, stressed the importance that VA must get a medical opinion before it summarily declined to refer an issue for extraschedular consideration for unemployability. Our client worked as an accountant, handling his clients’ taxes. He was forced to stop working because his hearing loss was so debilitating that he was prevented from talking with and understanding his clients. Fearing that he would accidentally submit something erroneous to the IRS because he did not hear his clients correctly, he stopped working. VA refused to refer our client’s claim for consideration for unemployability because it determined that the Veteran could still perform the physical and mental acts required by being an accountant, he just could not hear and understand his clients.
After we submitted our legal argument, the Court determined that the VA was wrong by not referring the case to a physician to make a determination on the effect the Veteran’s hearing loss had on his ability to remain employed. The Court chastised VA for using its own unsubstantiated opinion, and not relying on independent medical evidence from a physician on the topic. After all, one can reason that if the Veteran could not hear his clients, he would be unable to hear and understand any other employer as well.
A recent decision by the Court, on one of our client’s claims, stressed the importance that VA must get a medical opinion before it summarily declined to refer an issue for extraschedular consideration for unemployability. Our client worked as an accountant, handling his clients’ taxes. He was forced to stop working because his hearing loss was so debilitating that he was prevented from talking with and understanding his clients. Fearing that he would accidentally submit something erroneous to the IRS because he did not hear his clients correctly, he stopped working. VA refused to refer our client’s claim for consideration for unemployability because it determined that the Veteran could still perform the physical and mental acts required by being an accountant, he just could not hear and understand his clients.
After we submitted our legal argument, the Court determined that the VA was wrong by not referring the case to a physician to make a determination on the effect the Veteran’s hearing loss had on his ability to remain employed. The Court chastised VA for using its own unsubstantiated opinion, and not relying on independent medical evidence from a physician on the topic. After all, one can reason that if the Veteran could not hear his clients, he would be unable to hear and understand any other employer as well.
Thursday, December 2, 2010
What Happens if Mediation Fails?
by Wendy Alton
It looks like the judge will have to decide the fate of the Dodgers after all. While Frank & Jamie McCourt are waiting for the judge’s ruling in their divorce case, they agreed to meet again with a mediator to see if they could settle their differences.
After lengthy mediation sessions, the mediator submitted a proposed divorce settlement to both Frank & Jamie McCourt, and they had until noon on Tuesday, November 30, 2010, to either accept the settlement or reject it. Frank McCourt accepted the proposal, but Jamie rejected it.
While it is true that many divorce cases can settle during mediation, it is also true that some do not. In Michigan, people going through a divorce will often be required to go to mediation during their case. However, the mediator cannot force a settlement. The mediator can only try to assist both people in coming to a mutual agreement on their issues. If no agreement is reached, mediation is concluded and the case continues.
Sometimes this means that the case will continue to trial. Often, though, the case will still settle privately, as a good mediator will assist each person in seeing both sides of the issue, and also assist them in understanding how their judge will see the issues.
As far as the Dodgers go, this appears to be the last chance for any type of private settlement, as both Frank and Jamie McCourt have dug in their heels. Even though Frank accepted the mediator’s proposal, the proposal is not final unless both of them accept it. Jamie McCourt appears to want the judge to make the final decision, and that should be expected within the next couple of months.
You can read the LA Times article here: Jamie McCourt rejects divorce settlement proposal.
If you are interested in learning more about divorce, or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
It looks like the judge will have to decide the fate of the Dodgers after all. While Frank & Jamie McCourt are waiting for the judge’s ruling in their divorce case, they agreed to meet again with a mediator to see if they could settle their differences.
After lengthy mediation sessions, the mediator submitted a proposed divorce settlement to both Frank & Jamie McCourt, and they had until noon on Tuesday, November 30, 2010, to either accept the settlement or reject it. Frank McCourt accepted the proposal, but Jamie rejected it.
While it is true that many divorce cases can settle during mediation, it is also true that some do not. In Michigan, people going through a divorce will often be required to go to mediation during their case. However, the mediator cannot force a settlement. The mediator can only try to assist both people in coming to a mutual agreement on their issues. If no agreement is reached, mediation is concluded and the case continues.
Sometimes this means that the case will continue to trial. Often, though, the case will still settle privately, as a good mediator will assist each person in seeing both sides of the issue, and also assist them in understanding how their judge will see the issues.
As far as the Dodgers go, this appears to be the last chance for any type of private settlement, as both Frank and Jamie McCourt have dug in their heels. Even though Frank accepted the mediator’s proposal, the proposal is not final unless both of them accept it. Jamie McCourt appears to want the judge to make the final decision, and that should be expected within the next couple of months.
You can read the LA Times article here: Jamie McCourt rejects divorce settlement proposal.
If you are interested in learning more about divorce, or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Wednesday, December 1, 2010
VA Can’t Read
by Jim Fausone
VA just announced that it will test quicker ways to access private medical records. It wants a private contractor to quickly retrieve the records from the health-care provider, scan them into a digital format and send the material to VA through a secure transmission. But we have found that most Regional Office employees do not have a computer capable of reading CDs or DVDs. As a result, if you send them records on such media, the RO will simply drop it into the file and never look at what was submitted. This problem also exists at the Board and is acknowledged by all attorneys practicing in the field. The Secretary should stop "testing quicker ways" and provide the RO staff the technology they need to do their basic job.
Read more at: http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=2012
VA just announced that it will test quicker ways to access private medical records. It wants a private contractor to quickly retrieve the records from the health-care provider, scan them into a digital format and send the material to VA through a secure transmission. But we have found that most Regional Office employees do not have a computer capable of reading CDs or DVDs. As a result, if you send them records on such media, the RO will simply drop it into the file and never look at what was submitted. This problem also exists at the Board and is acknowledged by all attorneys practicing in the field. The Secretary should stop "testing quicker ways" and provide the RO staff the technology they need to do their basic job.
Read more at: http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=2012
Tuesday, November 30, 2010
Vets Must Help Vets
by Jim Fausone
There is no way the VA is going to be able to help every veteran in every situation. I think it is important that Veteran Service Organizations (VSO), veteran business owners and veteran centric groups step up and help out. This requires a local effort of neighbors helping neighbors. Stop worrying about VA getting it right and jump in and help.
VA recently denied a housing grant to assist a disabled veteran build a garage. We belong to a group that handles these types of requests. Our volunteers can go to the house and confirm the request and then work with people to get the job done and supply funding. We have also found many times people were trying to scam the system. If you live in Boston or are with a local Boston VSO maybe this is a relevant project to take on.
Read about this vet and his need for a garage: http://www.bostonherald.com/news/regional/view.bg?articleid=1296658
There is no way the VA is going to be able to help every veteran in every situation. I think it is important that Veteran Service Organizations (VSO), veteran business owners and veteran centric groups step up and help out. This requires a local effort of neighbors helping neighbors. Stop worrying about VA getting it right and jump in and help.
VA recently denied a housing grant to assist a disabled veteran build a garage. We belong to a group that handles these types of requests. Our volunteers can go to the house and confirm the request and then work with people to get the job done and supply funding. We have also found many times people were trying to scam the system. If you live in Boston or are with a local Boston VSO maybe this is a relevant project to take on.
Read about this vet and his need for a garage: http://www.bostonherald.com/news/regional/view.bg?articleid=1296658
Monday, November 29, 2010
Phoenix 's National Tinnitus Clinic
by Jim Fausone
Tinnitus, commonly known as ringing in the ears, is a major health issue for soldiers returning from combat in Afghanistan and Iraq. It is also a major and common disability for those from Vietnam combat. The condition was the most-claimed service-connected disability for veterans receiving compensation in fiscal year 2009-10, according to the Veterans Affairs Health Care System.
The audiology clinic at the Phoenix veterans hospital has added staff and extended hours. The hospital will launch a national tinnitus program called Progressive Tinnitus Management to help veterans with the disorder. Audiologists and mental-health professionals will work together to help veterans manage their reaction to tinnitus. The VA has been developing the program for five years using research literature, textbooks and clinical experience. We can only hope that the results are sufficient to roll out the program nationally.
Read more at: http://www.suntimes.com/news/nation/2906270,CST-WS-ears19.article
Tinnitus, commonly known as ringing in the ears, is a major health issue for soldiers returning from combat in Afghanistan and Iraq. It is also a major and common disability for those from Vietnam combat. The condition was the most-claimed service-connected disability for veterans receiving compensation in fiscal year 2009-10, according to the Veterans Affairs Health Care System.
The audiology clinic at the Phoenix veterans hospital has added staff and extended hours. The hospital will launch a national tinnitus program called Progressive Tinnitus Management to help veterans with the disorder. Audiologists and mental-health professionals will work together to help veterans manage their reaction to tinnitus. The VA has been developing the program for five years using research literature, textbooks and clinical experience. We can only hope that the results are sufficient to roll out the program nationally.
Read more at: http://www.suntimes.com/news/nation/2906270,CST-WS-ears19.article
Wednesday, November 24, 2010
Mel Gibson’s Custody Trial
by Wendy Alton
Judge Gordon in Los Angeles is once again the trial judge for a celebrity couple. He has previously decided issues of custody for Britney Spears and Kevin Federline, and is currently the trial judge in the divorce of Frank & Jamie McCourt and in that case will determine who will own the Dodgers.
Now, Judge Gordon will determine custody, parenting time and child support for the daughter of Mel Gibson and Oksana Grigorieva. Specifically, Judge Gordon will have to decide who has custody, how much child support should be paid, how frequently each will see their daughter, and under what conditions—meaning whether or not it should be supervised.
In Michigan, the trial judges also make custody, parenting time and child support decisions. However, the ultimate decision doesn’t go to the judge unless the parents cannot agree on those decisions. In divorce or custody cases, the parents have many options for resolving these issues, including mediation before the case, mediation during the case, and mediation with Friend of the Court.
If the issues cannot be resolved prior to trial, then the Judge must make those decisions, always focusing on what is in the best interests of the child. This means that the Judge must hear testimony and review evidence involving 12 factors that can be found here: Best Interests of the Child Defined.
Ultimately it is better if the parents can agree on issues of custody and parenting time since the parents will have to co-parent for years to come, and must make decisions together about their children. If, however, an agreement is impossible, the judge will make that decision—but it will be based upon what is best for the child, not what the parents want.
You can read more about the Mel Gibson custody issue as reported by the New York Times: In Family Court, a Reckoning for Gibson’s Career
If you are interested in learning more about custody, parenting time, child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Judge Gordon in Los Angeles is once again the trial judge for a celebrity couple. He has previously decided issues of custody for Britney Spears and Kevin Federline, and is currently the trial judge in the divorce of Frank & Jamie McCourt and in that case will determine who will own the Dodgers.
Now, Judge Gordon will determine custody, parenting time and child support for the daughter of Mel Gibson and Oksana Grigorieva. Specifically, Judge Gordon will have to decide who has custody, how much child support should be paid, how frequently each will see their daughter, and under what conditions—meaning whether or not it should be supervised.
In Michigan, the trial judges also make custody, parenting time and child support decisions. However, the ultimate decision doesn’t go to the judge unless the parents cannot agree on those decisions. In divorce or custody cases, the parents have many options for resolving these issues, including mediation before the case, mediation during the case, and mediation with Friend of the Court.
If the issues cannot be resolved prior to trial, then the Judge must make those decisions, always focusing on what is in the best interests of the child. This means that the Judge must hear testimony and review evidence involving 12 factors that can be found here: Best Interests of the Child Defined.
Ultimately it is better if the parents can agree on issues of custody and parenting time since the parents will have to co-parent for years to come, and must make decisions together about their children. If, however, an agreement is impossible, the judge will make that decision—but it will be based upon what is best for the child, not what the parents want.
You can read more about the Mel Gibson custody issue as reported by the New York Times: In Family Court, a Reckoning for Gibson’s Career
If you are interested in learning more about custody, parenting time, child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Tuesday, November 23, 2010
Detroit Celebrates Adoption Day
by Melissa Cox
Tuesday, November 23, 2010 will be a day of celebration in the courtroom of Hon. Mary Beth Kelly, Judge of the Third Circuit Court and Justice-Elect of the Michigan Supreme Court. She will preside at an Adoption Day commemoration which is open to the public.
Although adoption finalization hearings are generally private, the participating families and courts will open these hearings to the public, allowing others to witness the final stage of the adoption process. Also in attendance will be Michigan State University Associate Professor John Seita, Michigan Supreme Court Justice Robert Young, Jr., and Department of Human Services Director Ismael Ahmed.
If you would like to know more about adopting in Michigan, please contact Melissa Cox at mcox@fb-firm.com.
You can read more about this event at:
http://www.examiner.com/legal-news-in-detroit/adoption-day-celebrated-detroit
Tuesday, November 23, 2010 will be a day of celebration in the courtroom of Hon. Mary Beth Kelly, Judge of the Third Circuit Court and Justice-Elect of the Michigan Supreme Court. She will preside at an Adoption Day commemoration which is open to the public.
Although adoption finalization hearings are generally private, the participating families and courts will open these hearings to the public, allowing others to witness the final stage of the adoption process. Also in attendance will be Michigan State University Associate Professor John Seita, Michigan Supreme Court Justice Robert Young, Jr., and Department of Human Services Director Ismael Ahmed.
If you would like to know more about adopting in Michigan, please contact Melissa Cox at mcox@fb-firm.com.
You can read more about this event at:
http://www.examiner.com/legal-news-in-detroit/adoption-day-celebrated-detroit
Monday, November 22, 2010
Veteran Service Organizations & Facebook
by Jim Fausone
VSOs play an important role in the reintegration of troops into society and the delivery of veteran benefits information. The reduction in members is of concern to the survival of VSOs. These groups have to make themselves more relevant to today's veterans. The groups are adopting the use of social media.
The American Legion has about 20,000 Facebook members. IAVA has 169,000 supporters on Facebook. VFW has 64,000 Facebook followers. Connecting by use of social media is just one step in remaining relevant. Others are discussed in the attached article.
http://www.armytimes.com/news/2010/11/army-vets-turn-to-social-media-111910w/
VSOs play an important role in the reintegration of troops into society and the delivery of veteran benefits information. The reduction in members is of concern to the survival of VSOs. These groups have to make themselves more relevant to today's veterans. The groups are adopting the use of social media.
The American Legion has about 20,000 Facebook members. IAVA has 169,000 supporters on Facebook. VFW has 64,000 Facebook followers. Connecting by use of social media is just one step in remaining relevant. Others are discussed in the attached article.
http://www.armytimes.com/news/2010/11/army-vets-turn-to-social-media-111910w/
Thursday, November 18, 2010
The Wedding’s Off—Now Who Keeps the Engagement Ring?
by Wendy Alton
You are engaged to be married, and have either bought or received a beautiful (expensive) engagement ring. Unfortunately, something happens to destroy the pre-wedded bliss and the wedding is called off for good. If the marriage never happens, who gets the engagement ring?
The courts in Michigan have answered unequivocally: the person who gave the ring in anticipation of the marriage.
The definitive case on this issue is Meyer v Mitnick, 244 Mich App 697 (2001). In that case, Dr. Barry Meyer purchased a custom-designed engagement ring for his fiancé Robyn Mitnick at the cost of $19,500. Prior to the marriage, Dr. Meyer asked Ms. Mitnick to sign a prenuptial agreement, and Ms. Mitnick refused. The marriage was called off.
Ms. Mitnick refused to return the engagement ring, so Dr. Meyer sued her for its return. Dr. Meyer argued that the engagement ring was a conditional gift, given in anticipation of marriage, and since the marriage wasn’t going to happen, the gift should be returned. Ms. Mitnick argued that Dr. Meyer broke the engagement, and thus was at fault for the marriage not occurring, and that based upon fault, she should be allowed to keep the ring.
The trial court, Oakland County Circuit Court, ruled that the ring should be returned to Dr. Meyer because it is a conditional gift, and that issues of fault do not determine who keeps the ring. Ms. Mitnick appealed that decision to the Michigan Court of Appeals.
The Michigan Court of Appeals affirmed the trial court’s decision. They concluded the following:
“In sum, we hold that an engagement ring given in contemplation of marriage is an impliedly conditional gift that is a completed gift only upon marriage. If the engagement is called off, for whatever reasons, the gift is not capable of becoming a completed gift and must be returned to the donor.”
Long story short, if the marriage doesn’t happen, the ring is given back to the person that gave it in anticipation of the marriage.
Keep in mind, however, that two people can always come to a written agreement otherwise. If there is a written agreement that the person receiving the engagement ring can keep it regardless of what happens, that agreement would usually govern.
Also keep in mind that once the couple is married, the condition is fulfilled, and the engagement ring, once a conditional gift, is now an outright gift and belongs solely to the person receiving it.
If you are interested in learning more about prenuptial agreements, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
You are engaged to be married, and have either bought or received a beautiful (expensive) engagement ring. Unfortunately, something happens to destroy the pre-wedded bliss and the wedding is called off for good. If the marriage never happens, who gets the engagement ring?
The courts in Michigan have answered unequivocally: the person who gave the ring in anticipation of the marriage.
The definitive case on this issue is Meyer v Mitnick, 244 Mich App 697 (2001). In that case, Dr. Barry Meyer purchased a custom-designed engagement ring for his fiancé Robyn Mitnick at the cost of $19,500. Prior to the marriage, Dr. Meyer asked Ms. Mitnick to sign a prenuptial agreement, and Ms. Mitnick refused. The marriage was called off.
Ms. Mitnick refused to return the engagement ring, so Dr. Meyer sued her for its return. Dr. Meyer argued that the engagement ring was a conditional gift, given in anticipation of marriage, and since the marriage wasn’t going to happen, the gift should be returned. Ms. Mitnick argued that Dr. Meyer broke the engagement, and thus was at fault for the marriage not occurring, and that based upon fault, she should be allowed to keep the ring.
The trial court, Oakland County Circuit Court, ruled that the ring should be returned to Dr. Meyer because it is a conditional gift, and that issues of fault do not determine who keeps the ring. Ms. Mitnick appealed that decision to the Michigan Court of Appeals.
The Michigan Court of Appeals affirmed the trial court’s decision. They concluded the following:
“In sum, we hold that an engagement ring given in contemplation of marriage is an impliedly conditional gift that is a completed gift only upon marriage. If the engagement is called off, for whatever reasons, the gift is not capable of becoming a completed gift and must be returned to the donor.”
Long story short, if the marriage doesn’t happen, the ring is given back to the person that gave it in anticipation of the marriage.
Keep in mind, however, that two people can always come to a written agreement otherwise. If there is a written agreement that the person receiving the engagement ring can keep it regardless of what happens, that agreement would usually govern.
Also keep in mind that once the couple is married, the condition is fulfilled, and the engagement ring, once a conditional gift, is now an outright gift and belongs solely to the person receiving it.
If you are interested in learning more about prenuptial agreements, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Wednesday, November 17, 2010
New Agent Orange Regulations and Nehmer’s Implications on Pending Claims
by Kristina Derro
Many individuals have previously filed claims for disabilities that have recently been added as presumptive diseases for Agent Orange exposure. As a result of Nehmer, these individuals can have their previous claims reinstated and adjudicated. The VA is doing just that—hundreds of thousands of previously denied cases have been reopened and are in the process of being adjudicated.
Word from VA is that the U.S. Court of Appeals for Veterans Claims has instructed it to process these claims first, prior to adjudicating other claims. Therefore, we have been receiving word from local Regional Offices that the normal “slow” process at VA has been slowed even further because the VA has been focusing on these Nehmer claims and not working on the other claims.
Word of advice: prepare for a long wait at VA!
Many individuals have previously filed claims for disabilities that have recently been added as presumptive diseases for Agent Orange exposure. As a result of Nehmer, these individuals can have their previous claims reinstated and adjudicated. The VA is doing just that—hundreds of thousands of previously denied cases have been reopened and are in the process of being adjudicated.
Word from VA is that the U.S. Court of Appeals for Veterans Claims has instructed it to process these claims first, prior to adjudicating other claims. Therefore, we have been receiving word from local Regional Offices that the normal “slow” process at VA has been slowed even further because the VA has been focusing on these Nehmer claims and not working on the other claims.
Word of advice: prepare for a long wait at VA!
Tuesday, November 16, 2010
Divorcing and Dreading the Holidays?
by Wendy Alton
As if Divorce or Separation wasn’t hard enough—along comes Thanksgiving, Christmas and New Years. It is undisputed that those going through the tumultuous process of divorce feel increased depression and despair as the holidays approach. Most people try to manage these feelings themselves and get through the holidays without a support system. However, there is a tremendous amount of help and support for people going through a divorce, especially during the holidays.
There is a valuable website called DivorceCare, and you can click on the website here: www.DivorceCare.org. On this website, you can read articles, watch videos, sign up for daily encouragement emails, and most importantly, find a local support group for yourself, and also find a support group for your children. These groups meet weekly and are free to anyone who wants to attend. The website also has a bookstore with an incredible selection of books.
There is also a special section for people divorcing as we move toward the holidays: DivorceCare: Surviving the Holidays. This is a special Surviving the Holidays event (free) that features video instruction and group discussion on how to get through the holidays. If you attend the event, you have the opportunity to talk with other people who are going through the same issues, and also receive a free Holiday Survival Guide.
If you are going through a divorce, a separation, or are facing the holidays for the first time after a divorce, you do not have to go through these holidays alone. You also don’t have to manage feelings of depression or despair by yourself. Look through the materials on the DivorceCare website and find a group to join. There are people eager to help.
The website again is DivorceCare, and can be found at www.DivorceCare.org
The section of DivorceCare for surviving the holidays can be found at DivorceCare: Surviving the Holidays.
If you are interested in learning more about divorce or separation, or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
As if Divorce or Separation wasn’t hard enough—along comes Thanksgiving, Christmas and New Years. It is undisputed that those going through the tumultuous process of divorce feel increased depression and despair as the holidays approach. Most people try to manage these feelings themselves and get through the holidays without a support system. However, there is a tremendous amount of help and support for people going through a divorce, especially during the holidays.
There is a valuable website called DivorceCare, and you can click on the website here: www.DivorceCare.org. On this website, you can read articles, watch videos, sign up for daily encouragement emails, and most importantly, find a local support group for yourself, and also find a support group for your children. These groups meet weekly and are free to anyone who wants to attend. The website also has a bookstore with an incredible selection of books.
There is also a special section for people divorcing as we move toward the holidays: DivorceCare: Surviving the Holidays. This is a special Surviving the Holidays event (free) that features video instruction and group discussion on how to get through the holidays. If you attend the event, you have the opportunity to talk with other people who are going through the same issues, and also receive a free Holiday Survival Guide.
If you are going through a divorce, a separation, or are facing the holidays for the first time after a divorce, you do not have to go through these holidays alone. You also don’t have to manage feelings of depression or despair by yourself. Look through the materials on the DivorceCare website and find a group to join. There are people eager to help.
The website again is DivorceCare, and can be found at www.DivorceCare.org
The section of DivorceCare for surviving the holidays can be found at DivorceCare: Surviving the Holidays.
If you are interested in learning more about divorce or separation, or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Monday, November 15, 2010
PTSD & Physical Ailments
by Jim Fausone
The VA often funds research that is helpful in understanding complex medical conditions. VA and Stanford University completed a large study that shows that among younger veterans enrolled in VA health care, those with a mental health condition—especially posttraumatic stress disorder (PTSD)—tend to have more physical ailments. The results, published online Sept. 18 in the Journal of General Internal Medicine, explain the link between emotional stress and physical illness.
The researchers examined the records of more than 90,000 Iraq and Afghanistan Veterans who used VA outpatient care in fiscal year 2006–2007. The majority had received a diagnosis of at least one mental health condition. About 35 percent of men and 27 percent of women had PTSD. The link between PTSD and medical (non-mental) illness was stronger among women than among men. Women with PTSD had a median of 7 medical conditions, versus 4.5 for women with no mental health diagnosis. The most common physical ailments for women were lower-back problems, headaches and lower-extremity joint disorders. Men with PTSD had a median of 5 medical conditions, versus 4 for men with no mental health diagnosis. The most common complaints for men were similar to those of women—for example, back and knee problems—but also included hearing loss.
As you advance your disability claim and secondary or related claims, this research may be helpful. Read more at http://www.research.va.gov/currents/oct10/oct10-3.cfm
The VA often funds research that is helpful in understanding complex medical conditions. VA and Stanford University completed a large study that shows that among younger veterans enrolled in VA health care, those with a mental health condition—especially posttraumatic stress disorder (PTSD)—tend to have more physical ailments. The results, published online Sept. 18 in the Journal of General Internal Medicine, explain the link between emotional stress and physical illness.
The researchers examined the records of more than 90,000 Iraq and Afghanistan Veterans who used VA outpatient care in fiscal year 2006–2007. The majority had received a diagnosis of at least one mental health condition. About 35 percent of men and 27 percent of women had PTSD. The link between PTSD and medical (non-mental) illness was stronger among women than among men. Women with PTSD had a median of 7 medical conditions, versus 4.5 for women with no mental health diagnosis. The most common physical ailments for women were lower-back problems, headaches and lower-extremity joint disorders. Men with PTSD had a median of 5 medical conditions, versus 4 for men with no mental health diagnosis. The most common complaints for men were similar to those of women—for example, back and knee problems—but also included hearing loss.
As you advance your disability claim and secondary or related claims, this research may be helpful. Read more at http://www.research.va.gov/currents/oct10/oct10-3.cfm
Thursday, November 11, 2010
Adopting Online
By Melissa A. Cox
Social Media is the new adoption apparatus for many adoptive parents seeking birth mothers. The traditional use of adoption agencies or adoption facilitators can be costly, ranging from $10,000.00 to $25,000.00, and the wait for a baby can be months or years. The use of online resources to effectuate an independent adoption is cheaper, quicker, and reaches a larger audience.
Adoption experts have long advised that, when looking for an adoptive baby, “the more people who know you are looking, the better”. To help spread the word, prospective parents are utilizing social networking sites like Twitter, MySpace, YouTube and Facebook in the hope that their friends may know of a potential birth mom.
It is also a fact that many birth mothers are teens or young adults. They will often Google advice before they will even think of speaking with an adoption agency. So, of course, the chances of these mothers finding an adoptive parents’ YouTube video or Facebook page are high.
Of course, once an adoptive parent or parents finds their baby, they will need a competent adoption attorney to legalize the adoption. If you have any questions regarding Michigan adoption law, please contact Melissa Cox @ mcox@fb-firm.com.
You can read the CNN article here: http://articles.cnn.com/2009-03-10/tech/adoption.internet.advertise_1_adoptive-parents-adoption-agencies-adoption-experts?_s=PM:TECH
Social Media is the new adoption apparatus for many adoptive parents seeking birth mothers. The traditional use of adoption agencies or adoption facilitators can be costly, ranging from $10,000.00 to $25,000.00, and the wait for a baby can be months or years. The use of online resources to effectuate an independent adoption is cheaper, quicker, and reaches a larger audience.
Adoption experts have long advised that, when looking for an adoptive baby, “the more people who know you are looking, the better”. To help spread the word, prospective parents are utilizing social networking sites like Twitter, MySpace, YouTube and Facebook in the hope that their friends may know of a potential birth mom.
It is also a fact that many birth mothers are teens or young adults. They will often Google advice before they will even think of speaking with an adoption agency. So, of course, the chances of these mothers finding an adoptive parents’ YouTube video or Facebook page are high.
Of course, once an adoptive parent or parents finds their baby, they will need a competent adoption attorney to legalize the adoption. If you have any questions regarding Michigan adoption law, please contact Melissa Cox @ mcox@fb-firm.com.
You can read the CNN article here: http://articles.cnn.com/2009-03-10/tech/adoption.internet.advertise_1_adoptive-parents-adoption-agencies-adoption-experts?_s=PM:TECH
Wednesday, November 10, 2010
Prenuptial Agreements on the Rise
by Wendy Alton
A recent Detroit Free Press article reported that a majority of lawyers are seeing an increase in requests for prenuptial agreements and that more women are requesting prenuptial agreements prior to getting married. Part of the reason for the increase is the fact that people are getting married at an older age, and that there are more frequent second marriages or marriages blending families together.
For couples that are anticipating marriage, it is very important to consider having a prenuptial agreement in place prior to getting married. This is particularly important if each person has their own property, investments, retirement and savings. A prenuptial agreement is an agreement between couples getting married on how they are going to distribute assets they bring to the marriage and assets they acquire during the marriage if the couple divorces or if one of them passes away.
Prenuptial agreements are very common when two individuals are bringing significant assets of their own into the marriage, or even significant debt. They are also common when people are marrying later in life and they have grown children they want to provide for if they were to pass away. They are far more common than they used to be.
You can read the Detroit Free Press article here: More Women and 2nd Timers want Prenup
If you are interested in learning more about prenuptial agreements or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
A recent Detroit Free Press article reported that a majority of lawyers are seeing an increase in requests for prenuptial agreements and that more women are requesting prenuptial agreements prior to getting married. Part of the reason for the increase is the fact that people are getting married at an older age, and that there are more frequent second marriages or marriages blending families together.
For couples that are anticipating marriage, it is very important to consider having a prenuptial agreement in place prior to getting married. This is particularly important if each person has their own property, investments, retirement and savings. A prenuptial agreement is an agreement between couples getting married on how they are going to distribute assets they bring to the marriage and assets they acquire during the marriage if the couple divorces or if one of them passes away.
Prenuptial agreements are very common when two individuals are bringing significant assets of their own into the marriage, or even significant debt. They are also common when people are marrying later in life and they have grown children they want to provide for if they were to pass away. They are far more common than they used to be.
You can read the Detroit Free Press article here: More Women and 2nd Timers want Prenup
If you are interested in learning more about prenuptial agreements or have a question about divorce, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Tuesday, November 9, 2010
How Child Support is Calculated
by Wendy Alton
A common misunderstanding with our family law clients is how exactly child support is calculated in Michigan. Often parents believe that child support is based solely on just what they earn, and nothing more. This is not correct, as child support is based upon a number of considerations.
First, child support is often calculated by Friend of the Court and by attorneys with the help of a computer program. The following is a list of the information that is provided to that program in order for child support to be calculated:
• Number of minor children
• Tax filing status of both parents
• Tax exemptions for both parents
• Determination if either parent provides support for other children in their household
• The number of overnight stays that each parent has with each child (calculated separately)
• The amount of childcare that each parent pays, and for how many children
• The amount of health care premiums that each parent pays for the children
• The gross earnings of each parent
Obviously from the list above, one can see that child support is calculated on more than just what a parent earns.
There are also other factors that must be considered in more unique cases. Sometimes one parent is voluntarily unemployed or underemployed, and it must be determined if income should be imputed to that parent for purposes of child support. Sometimes a parent is self-employed, and the calculation of income is more difficult.
It is important to discuss the issue of child support with an experienced family law lawyer so that you can truly understand the issues in your case, how child support is calculated, and whether or not you should seek an increase or decreased based upon all of those circumstances.
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
A common misunderstanding with our family law clients is how exactly child support is calculated in Michigan. Often parents believe that child support is based solely on just what they earn, and nothing more. This is not correct, as child support is based upon a number of considerations.
First, child support is often calculated by Friend of the Court and by attorneys with the help of a computer program. The following is a list of the information that is provided to that program in order for child support to be calculated:
• Number of minor children
• Tax filing status of both parents
• Tax exemptions for both parents
• Determination if either parent provides support for other children in their household
• The number of overnight stays that each parent has with each child (calculated separately)
• The amount of childcare that each parent pays, and for how many children
• The amount of health care premiums that each parent pays for the children
• The gross earnings of each parent
Obviously from the list above, one can see that child support is calculated on more than just what a parent earns.
There are also other factors that must be considered in more unique cases. Sometimes one parent is voluntarily unemployed or underemployed, and it must be determined if income should be imputed to that parent for purposes of child support. Sometimes a parent is self-employed, and the calculation of income is more difficult.
It is important to discuss the issue of child support with an experienced family law lawyer so that you can truly understand the issues in your case, how child support is calculated, and whether or not you should seek an increase or decreased based upon all of those circumstances.
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Monday, November 8, 2010
General Fausone at UM Nursing
by Jim Fausone
I am often asked about being married to a General. Believe me it has its benefits but it is not always easy. Brigadier General Carol Ann Fausone has spent 32 years wearing the Air Force blue uniform with assignments all over the world. Currently, she is the Assistant Adjutant General for Veterans Affairs in the State of Michigan.
Veterans Day 2010, she will travel the State and give a dozen speeches. One good assignment is being the Officer of the Day at the Illinois v Michigan football game's ceremony honoring veterans. The General gets field access with the ROTC and sky box access with the Regents. Not a bad job for the spouse who tags along. She recently gave a presentation at the University of Michigan where she obtained her nursing degree.
If you want to read about that speech click on: http://www.nursing.umich.edu/about-our-school/news-portal/201011/1353
I am often asked about being married to a General. Believe me it has its benefits but it is not always easy. Brigadier General Carol Ann Fausone has spent 32 years wearing the Air Force blue uniform with assignments all over the world. Currently, she is the Assistant Adjutant General for Veterans Affairs in the State of Michigan.
Veterans Day 2010, she will travel the State and give a dozen speeches. One good assignment is being the Officer of the Day at the Illinois v Michigan football game's ceremony honoring veterans. The General gets field access with the ROTC and sky box access with the Regents. Not a bad job for the spouse who tags along. She recently gave a presentation at the University of Michigan where she obtained her nursing degree.
If you want to read about that speech click on: http://www.nursing.umich.edu/about-our-school/news-portal/201011/1353
Friday, November 5, 2010
Suicide & Mental Illness
by Jim Fausone
The rash of suicides this year that involve members of the military has been getting plenty of attention. Veterans face the same suicide problem brought on by the stress of war. Military veterans with psychiatric illnesses are at increased risk for suicide, says a new study by the University of Michigan in conjunction with US Department of Veteran Affairs.
The researchers examined the psychiatric records of more than three million veterans who received any type of care at a VA facility in 1999. Over the next seven years, 7,684 of the veterans committed suicide. Slightly half of them had at least one psychiatric diagnosis. All of the psychiatric conditions included in the study -- depression, schizophrenia, bipolar disorder, substance abuse disorders, post-traumatic stress syndrome (PTSD) and other anxiety disorders -- were associated with increased risk of suicide.
To read more about the study:
http://www.businessweek.com/lifestyle/content/healthday/645083.html
The rash of suicides this year that involve members of the military has been getting plenty of attention. Veterans face the same suicide problem brought on by the stress of war. Military veterans with psychiatric illnesses are at increased risk for suicide, says a new study by the University of Michigan in conjunction with US Department of Veteran Affairs.
The researchers examined the psychiatric records of more than three million veterans who received any type of care at a VA facility in 1999. Over the next seven years, 7,684 of the veterans committed suicide. Slightly half of them had at least one psychiatric diagnosis. All of the psychiatric conditions included in the study -- depression, schizophrenia, bipolar disorder, substance abuse disorders, post-traumatic stress syndrome (PTSD) and other anxiety disorders -- were associated with increased risk of suicide.
To read more about the study:
http://www.businessweek.com/lifestyle/content/healthday/645083.html
Tuesday, November 2, 2010
VA Starts AO Payments
by Jim Fausone
VA announced that on November 1st it has finally started making payments under the new AO rules. Providing initial payments – or increases to existing payments – to the 200,000 Veterans who now qualify for disability compensation is expected to take several months. The three new presumptive diseases which have been in the press all year are: B-cell (or hairy-cell) leukemia, Parkinson’s disease and ischemic heart disease.
To read more about the VA's efforts in this area read:
http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1991
VA announced that on November 1st it has finally started making payments under the new AO rules. Providing initial payments – or increases to existing payments – to the 200,000 Veterans who now qualify for disability compensation is expected to take several months. The three new presumptive diseases which have been in the press all year are: B-cell (or hairy-cell) leukemia, Parkinson’s disease and ischemic heart disease.
To read more about the VA's efforts in this area read:
http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1991
Wednesday, October 27, 2010
New Forms New Approach
By Jim Fausone
VA has begun releasing forms on specific disabilities for use by its physicians. This initiative marks the beginning of a major reform of the physicians’ guides and automated routines that will streamline the claims process for injured or ill Veterans. 79 different disabilities are to get the new forms. This initiative will also help automate the medical records system at VA.
For Veterans who receive their care from private physicians, VA has placed the disability benefits questionnaires on its Internet site: http://www.vba.va.gov/disabilityexams/ with instructions for physicians to submit examination results on Veterans’ behalf.
To read more about this change click on: http://www.veteranstoday.com/2010/10/26/new-medical-forms-will-streamline-veterans-claims-process/
VA has begun releasing forms on specific disabilities for use by its physicians. This initiative marks the beginning of a major reform of the physicians’ guides and automated routines that will streamline the claims process for injured or ill Veterans. 79 different disabilities are to get the new forms. This initiative will also help automate the medical records system at VA.
For Veterans who receive their care from private physicians, VA has placed the disability benefits questionnaires on its Internet site: http://www.vba.va.gov/disabilityexams/ with instructions for physicians to submit examination results on Veterans’ behalf.
To read more about this change click on: http://www.veteranstoday.com/2010/10/26/new-medical-forms-will-streamline-veterans-claims-process/
Wednesday, October 20, 2010
VFW PAC in Dispute
by Jim Fausone
The Veterans of Foreign Wars (VFW) set up an independent political action committee (PAC) years ago. The VFW has about 1.5 million members, and the endorsement from its PAC is usually widely advertised by the candidates. Now the VFW PAC is being challenged for endorsing incumbents in Congress.
VFW's commander in chief, Richard L. Eubank, and two other officers called for the rescission of the endorsements and said that the endorsement process "unintentionally provided favoritism to the incumbents." It is hard to get real change at VA when groups like this PAC simply rubber stamp the incumbents. If you want to read more about it:
http://ap.stripes.com/dynamic/stories/U/US_VFW_PAC_ENDORSEMENT?SITE=DCSAS&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2010-10-13-12-32-47
The Veterans of Foreign Wars (VFW) set up an independent political action committee (PAC) years ago. The VFW has about 1.5 million members, and the endorsement from its PAC is usually widely advertised by the candidates. Now the VFW PAC is being challenged for endorsing incumbents in Congress.
VFW's commander in chief, Richard L. Eubank, and two other officers called for the rescission of the endorsements and said that the endorsement process "unintentionally provided favoritism to the incumbents." It is hard to get real change at VA when groups like this PAC simply rubber stamp the incumbents. If you want to read more about it:
http://ap.stripes.com/dynamic/stories/U/US_VFW_PAC_ENDORSEMENT?SITE=DCSAS&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2010-10-13-12-32-47
Tuesday, October 19, 2010
New Landlord/Tenant Law Provides Help for Domestic Violence Victims
by Wendy Alton
Michigan Governor Granholm has just approved a new law that becomes effective immediately. This law, codified as MCL 554.601b, provides assistance to tenants who are victims of domestic violence, sexual assault or stalking.
Victims of domestic violence, sexual assault, or stalking are often in a situation where they must move immediately, whether to a shelter or another residence, because there is an immediate danger of injury, harm or potential assault. However, if that victim is a tenant in a rental residence, the victim/tenant is still responsible for rent even if they vacate. Prior to this new law, there was nothing in Michigan’s law that provided assistance or help to the victim—and the victim/tenant could be sued for rent that was not paid.
The new law, which applies to leases entered into, renewed, or renegotiated after October 20, 2010, allows a tenant, who is in reasonable apprehension of present danger to themselves or their children, submit a written notice of intent to be released from their rent payment obligation. The law dictates that the tenant must deliver to the landlord, by certified mail, a notice that they intend to be released from their rent payment and must include, with that notice, written documentation that there is a PPO, a probation or parole order, or a written police report (if it resulted in charges being filed within 14 days). There are other types of written documentation that can be provided as well, and this is explained in the new law. Upon providing the proper notice with supporting documentation, the tenant is released from the rent payment obligation on the 1st day of the second month that rent is due after notice is given. However, the release is not effective unless the tenant actually vacates.
As family law attorneys, we are seeing escalated instances of domestic violence. This law is designed to assist victims who are truly in danger so that they can better protect themselves and their families.
You can read the law itself here: MCL 554.601b
You can read a Detroit Free Press article on the new law here: New Domestic Violence Law Helps Tenants, Landlords
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Michigan Governor Granholm has just approved a new law that becomes effective immediately. This law, codified as MCL 554.601b, provides assistance to tenants who are victims of domestic violence, sexual assault or stalking.
Victims of domestic violence, sexual assault, or stalking are often in a situation where they must move immediately, whether to a shelter or another residence, because there is an immediate danger of injury, harm or potential assault. However, if that victim is a tenant in a rental residence, the victim/tenant is still responsible for rent even if they vacate. Prior to this new law, there was nothing in Michigan’s law that provided assistance or help to the victim—and the victim/tenant could be sued for rent that was not paid.
The new law, which applies to leases entered into, renewed, or renegotiated after October 20, 2010, allows a tenant, who is in reasonable apprehension of present danger to themselves or their children, submit a written notice of intent to be released from their rent payment obligation. The law dictates that the tenant must deliver to the landlord, by certified mail, a notice that they intend to be released from their rent payment and must include, with that notice, written documentation that there is a PPO, a probation or parole order, or a written police report (if it resulted in charges being filed within 14 days). There are other types of written documentation that can be provided as well, and this is explained in the new law. Upon providing the proper notice with supporting documentation, the tenant is released from the rent payment obligation on the 1st day of the second month that rent is due after notice is given. However, the release is not effective unless the tenant actually vacates.
As family law attorneys, we are seeing escalated instances of domestic violence. This law is designed to assist victims who are truly in danger so that they can better protect themselves and their families.
You can read the law itself here: MCL 554.601b
You can read a Detroit Free Press article on the new law here: New Domestic Violence Law Helps Tenants, Landlords
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Thursday, October 14, 2010
In Custody Hearings, the Judge Cannot Just Rely on Friend of the Court’s Recommendation
by Wendy Alton
In Michigan, if a parent has proven to the court that there has been a change in circumstance or proper cause to consider a change in custody, the court will generally ask Friend of the Court to make a custody recommendation. Friend of the Court will investigate and make a recommendation to the Court after a full analysis of the best interests of the child by weighing the following factors:
(1) The love, affection & other emotional ties existing between the parties involved & the child.
(2) The capacity & disposition of the parties involved to give the child love, affection & guidance and to continue the education & raising of the child in his or her religion or creed, if any.
(3) The capacity & disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(4) The length of time the child has lived in a stable, satisfactory environment & the desirability of maintaining continuity.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of the parties involved.
(7) The mental & physical health of the parties involved.
(8) The home, school & community record of the child.
(9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(10) The willingness & ability of each of the parties to facilitate & encourage a close & continuing parent-child relationship between the child & the other parent or the child and the parents.
(11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(12) Any other factor considered by the court to be relevant to a particular child custody dispute.
After analysis of these factors, the Friend of the Court will then issue a written report and recommendation that is submitted to the parents and to the Judge. The Judge will review and consider the recommendation.
However, the Judge cannot just adopt the recommendation without hearing testimony and considering evidence. This requirement was reiterated in the case of Deling v Lam, unpublished case per curiam of the Michigan Court of Appeals, issued October 7, 2010 (Docket No. 295272). In that case, the trial judge merely adopted the recommendation, which radically changed the physical custody arrangement from joint physical custody to giving the father sole physical custody. The trial judge did not hear testimony or consider evidence—the judge just adopted the recommendation. The mother appealed, and the Court of Appeals reversed the trial court’s decision, stating that the trial judge improperly delegated its authority by failing to independently evaluate each of the best interest factors. The Court of Appeals reversed the trial court’s decision and sent the case back to the trial court for a new custody hearing.
In issues of custody and parenting time, it is extremely important to understand not only what your rights are as a parent, but also to fully understand every step in the process.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
In Michigan, if a parent has proven to the court that there has been a change in circumstance or proper cause to consider a change in custody, the court will generally ask Friend of the Court to make a custody recommendation. Friend of the Court will investigate and make a recommendation to the Court after a full analysis of the best interests of the child by weighing the following factors:
(1) The love, affection & other emotional ties existing between the parties involved & the child.
(2) The capacity & disposition of the parties involved to give the child love, affection & guidance and to continue the education & raising of the child in his or her religion or creed, if any.
(3) The capacity & disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(4) The length of time the child has lived in a stable, satisfactory environment & the desirability of maintaining continuity.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of the parties involved.
(7) The mental & physical health of the parties involved.
(8) The home, school & community record of the child.
(9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(10) The willingness & ability of each of the parties to facilitate & encourage a close & continuing parent-child relationship between the child & the other parent or the child and the parents.
(11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(12) Any other factor considered by the court to be relevant to a particular child custody dispute.
After analysis of these factors, the Friend of the Court will then issue a written report and recommendation that is submitted to the parents and to the Judge. The Judge will review and consider the recommendation.
However, the Judge cannot just adopt the recommendation without hearing testimony and considering evidence. This requirement was reiterated in the case of Deling v Lam, unpublished case per curiam of the Michigan Court of Appeals, issued October 7, 2010 (Docket No. 295272). In that case, the trial judge merely adopted the recommendation, which radically changed the physical custody arrangement from joint physical custody to giving the father sole physical custody. The trial judge did not hear testimony or consider evidence—the judge just adopted the recommendation. The mother appealed, and the Court of Appeals reversed the trial court’s decision, stating that the trial judge improperly delegated its authority by failing to independently evaluate each of the best interest factors. The Court of Appeals reversed the trial court’s decision and sent the case back to the trial court for a new custody hearing.
In issues of custody and parenting time, it is extremely important to understand not only what your rights are as a parent, but also to fully understand every step in the process.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Wednesday, October 13, 2010
Bad Paper Discharge
by Jim Fausone
The story is not that unusual, a service member suffering from psychological problems starts to self medicate, gets kicked out of the service and loses access to VA benefits. Veterans advocates see cynical forces at play in the use of administrative discharges for reasons including misconduct, personality disorder and adjustment disorder — defined as an excessive reaction to a stressful event, with symptoms similar to PTSD.
The Department of Defense stands to save between $5 billion and $20 billion in lifetime health care and benefits to the estimated 10,000 to 20,000 veterans with so called dubious discharges. Department of Defense officials have denied they use improper discharges as a cost-saving measure and say discharge policies continue to evolve as they learn more about PTSD and traumatic brain injury. If you like a conspiracy, this has all the makings needed.
Read more at: http://www.statesman.com/news/texas-politics/bad-paper-dischares-can-stymie-veterans-health-care-950891.html?srcTrk=RTR_781143
The story is not that unusual, a service member suffering from psychological problems starts to self medicate, gets kicked out of the service and loses access to VA benefits. Veterans advocates see cynical forces at play in the use of administrative discharges for reasons including misconduct, personality disorder and adjustment disorder — defined as an excessive reaction to a stressful event, with symptoms similar to PTSD.
The Department of Defense stands to save between $5 billion and $20 billion in lifetime health care and benefits to the estimated 10,000 to 20,000 veterans with so called dubious discharges. Department of Defense officials have denied they use improper discharges as a cost-saving measure and say discharge policies continue to evolve as they learn more about PTSD and traumatic brain injury. If you like a conspiracy, this has all the makings needed.
Read more at: http://www.statesman.com/news/texas-politics/bad-paper-dischares-can-stymie-veterans-health-care-950891.html?srcTrk=RTR_781143
Judge John MacDonald Joins Firm
Fausone Bohn, LLP is pleased to announce that Hon. John MacDonald has become “Of Counsel” with the firm.
Judge MacDonald retired from the Bench in January 2009. He served 24 years as a Judge in the 35th District Court where he served as its Chief Judge. John lives in Northville, Michigan where he holds the status as a former supervisor of Northville Township and a former elder of Ward Church.
Judge MacDonald was in the private practice of law for 23 years before being elected to the Bench. He is a graduate of the University of Michigan and Wayne State University School of Law. He will use his considerable skill and experience on private arbitration, mediation and facilitation assignments.
Judge MacDonald retired from the Bench in January 2009. He served 24 years as a Judge in the 35th District Court where he served as its Chief Judge. John lives in Northville, Michigan where he holds the status as a former supervisor of Northville Township and a former elder of Ward Church.
Judge MacDonald was in the private practice of law for 23 years before being elected to the Bench. He is a graduate of the University of Michigan and Wayne State University School of Law. He will use his considerable skill and experience on private arbitration, mediation and facilitation assignments.
Monday, October 11, 2010
Attorney Andrea Hayden Elected as President of the Great Lakes Environmental Law Center Board of Directors
The firm would like to congratulate Andrea Hayden, on her recent election as president of the Great Lakes Environmental Law Center (GLELC) Board of Directors. The GLELC is a non-profit organization founded to protect the Great Lakes, one of the world’s largest freshwater resources. The organization works closely with Wayne State University Law School, and national organizations such as Natural Resources Defense Council. Most recently GLELC submitted an amicus brief in the Michigan Supreme Court case Anglers of the Ausable, Inc. v. the Michigan Department of Environmental Quality, a case involving riparian rights issues along with many additional complex environmental law issues.
The executive director of the GLELC, Nick Schroeck, was interviewed in today’s Detroit News regarding the organization in general and the Anglers of the Ausable case in particular.
You can find the article at: http://detnews.com/article/20101011/METRO/10110321/1478/rss
More information on the GLELC can be found at: http://www.glelc.org/
The executive director of the GLELC, Nick Schroeck, was interviewed in today’s Detroit News regarding the organization in general and the Anglers of the Ausable case in particular.
You can find the article at: http://detnews.com/article/20101011/METRO/10110321/1478/rss
More information on the GLELC can be found at: http://www.glelc.org/
Spousal Support (Alimony) is Based Upon More than Just a Difference in Income
by Wendy Alton
A common misperception of people going through a divorce in Michigan is that spousal support (formerly called alimony) is based solely or mostly upon a difference in income between the spouses. While it is true that the court considers income when deciding if spousal support should be awarded—income is just 1 of 14 factors that the courts review.
In deciding whether or not spousal support should be awarded, the court must review the following factors before a decision is made, Berger v Berger 277 Mich App 700, 726-7 (2008):
1. The past relations and conduct of both spouses
2. The length of the marriage
3. The ability of both spouses to work
4. The source and amount of property awarded to each spouse
5. The spouses’ respective ages
6. The ability of both spouses to pay spousal support
7. The present situation of each spouse
8. The needs of each spouse
9. The health of each spouse
10. The prior standard of living of the couple and whether either is responsible for the support of others
11. Contributions of the spouses respectively to joint marital property
12. A spouse’s fault in causing the divorce
13. The effect of cohabitation on the spouse’s financial status
14. General principles of equity.
There are no hard and fast rules for determining if spousal support should be awarded, how much should be awarded and for how long. Each case is reviewed independently and separately to determine the answer to these questions.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
A common misperception of people going through a divorce in Michigan is that spousal support (formerly called alimony) is based solely or mostly upon a difference in income between the spouses. While it is true that the court considers income when deciding if spousal support should be awarded—income is just 1 of 14 factors that the courts review.
In deciding whether or not spousal support should be awarded, the court must review the following factors before a decision is made, Berger v Berger 277 Mich App 700, 726-7 (2008):
1. The past relations and conduct of both spouses
2. The length of the marriage
3. The ability of both spouses to work
4. The source and amount of property awarded to each spouse
5. The spouses’ respective ages
6. The ability of both spouses to pay spousal support
7. The present situation of each spouse
8. The needs of each spouse
9. The health of each spouse
10. The prior standard of living of the couple and whether either is responsible for the support of others
11. Contributions of the spouses respectively to joint marital property
12. A spouse’s fault in causing the divorce
13. The effect of cohabitation on the spouse’s financial status
14. General principles of equity.
There are no hard and fast rules for determining if spousal support should be awarded, how much should be awarded and for how long. Each case is reviewed independently and separately to determine the answer to these questions.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Friday, October 8, 2010
Less Transition for Children not Proper Cause to Change Parenting Time
by Wendy Alton
When going through a divorce in Michigan, it is extremely important to carefully agree upon a parenting time schedule with your children that will work for a long period to come. Some parents decide to share joint physical custody—meaning that both parents aim to spend as much time as they can with their children, usually resulting in half of the child’s time with one parent and half with the other.
What usually results in such an agreement is that the children rotate houses every week (one week with one parent and the next with the other parent), or the children spend some days in the week with one parent, and the other days in the week with the other parent. Obviously, the latter arrangement results in many transitions for the children, as they are rotating houses up to 3-4 times per week.
In the case of Stelman v Stelman, unpublished case per curiam of the Michigan Court of Appeals, issued August 3, 2010 (Docket No. 294105), the parents had such an agreement. The children were with their father 4 nights in the 1st and 3rd weeks of the month, and 2 nights in the 2nd and 4th weeks of the month. During the summer months, the parents took full alternating weeks. The father in Stelman sought a parenting time change, asking the court to change the parenting time to alternating weeks throughout the entire year. Under his current parenting time plan, he spent 12 overnights with his children, and his proposed would increase it slightly to 14 overnights with his children. Thus, the amount of overnights with the children would remain consistent. What the father proposed is that alternating weeks throughout the entire year would be a better plan because it would reduce the amount of transitions for the children by about half.
Oakland County Circuit Court ruled that his reason for seeking the change (reducing transitions), did not meet the threshold required for seeking a modification of parenting time. The Court of Appeals agreed. In Michigan, in order to seek a modification of parenting time, you must provide the court with evidence that there has been a change in circumstances or there is proper cause for seeking the change. Both courts were very clear that just a new proposal that reduced transitions did not meet the required evidence of change in circumstances or proper cause. The father never showed “what had changed” to make the existing parenting time schedule in need of modification. Just seeking a new arrangement to reduce transition for the children is not enough for the court to change the parenting time schedule.
If you are going through a divorce with children, it cannot be emphasized enough that you have good legal counsel to help you decide issues of custody and parenting time. Your decision becomes final and unchangeable unless there has been a change in circumstances or proper cause—this is a difficult evidentiary burden to meet. The decisions made in your divorce have long-lasting effects on you and your children—and you should be assisted by an attorney who can educate and advise you so you understand the full ramifications of your decision.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
When going through a divorce in Michigan, it is extremely important to carefully agree upon a parenting time schedule with your children that will work for a long period to come. Some parents decide to share joint physical custody—meaning that both parents aim to spend as much time as they can with their children, usually resulting in half of the child’s time with one parent and half with the other.
What usually results in such an agreement is that the children rotate houses every week (one week with one parent and the next with the other parent), or the children spend some days in the week with one parent, and the other days in the week with the other parent. Obviously, the latter arrangement results in many transitions for the children, as they are rotating houses up to 3-4 times per week.
In the case of Stelman v Stelman, unpublished case per curiam of the Michigan Court of Appeals, issued August 3, 2010 (Docket No. 294105), the parents had such an agreement. The children were with their father 4 nights in the 1st and 3rd weeks of the month, and 2 nights in the 2nd and 4th weeks of the month. During the summer months, the parents took full alternating weeks. The father in Stelman sought a parenting time change, asking the court to change the parenting time to alternating weeks throughout the entire year. Under his current parenting time plan, he spent 12 overnights with his children, and his proposed would increase it slightly to 14 overnights with his children. Thus, the amount of overnights with the children would remain consistent. What the father proposed is that alternating weeks throughout the entire year would be a better plan because it would reduce the amount of transitions for the children by about half.
Oakland County Circuit Court ruled that his reason for seeking the change (reducing transitions), did not meet the threshold required for seeking a modification of parenting time. The Court of Appeals agreed. In Michigan, in order to seek a modification of parenting time, you must provide the court with evidence that there has been a change in circumstances or there is proper cause for seeking the change. Both courts were very clear that just a new proposal that reduced transitions did not meet the required evidence of change in circumstances or proper cause. The father never showed “what had changed” to make the existing parenting time schedule in need of modification. Just seeking a new arrangement to reduce transition for the children is not enough for the court to change the parenting time schedule.
If you are going through a divorce with children, it cannot be emphasized enough that you have good legal counsel to help you decide issues of custody and parenting time. Your decision becomes final and unchangeable unless there has been a change in circumstances or proper cause—this is a difficult evidentiary burden to meet. The decisions made in your divorce have long-lasting effects on you and your children—and you should be assisted by an attorney who can educate and advise you so you understand the full ramifications of your decision.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Wednesday, October 6, 2010
Michigan Supreme Court Hears Child Support Case
by Wendy Alton
The Michigan Supreme Court will hear oral arguments this afternoon, Wednesday, October 6, 2010, on the case of In re Beck, opinion per curiam of the Court of Appeals, issued March 4, 2010 (Docket No. 293138) FOR PUBLICATION. The sole issue for the Michigan Supreme Court is whether a parent whose rights to his children have been involuntarily terminated pursuant to the Juvenile Code can be ordered to continue to pay child support.
In the Beck case, a father’s parental rights were terminated pursuant to the Juvenile Code in the Oakland County Circuit Court, meaning that they were terminated involuntarily due to abuse or neglect. However, despite the fact that his rights were terminated, the trial court ruled that his child support obligation would continue. The father appealed the trial court’s decision.
The Court of Appeals affirmed the trial court’s decision, and held that there was a difference between a parent’s rights and a parent’s responsibilities. The Michigan Legislature permits a court to terminate a parent’s rights, but is silent regarding a parent’s responsibilities if rights are terminated. The Court of Appeals ruled that children have a right to receive financial support from their parents, and this right cannot be bargained away by the parents. Further, a parent’s responsibility or financial liability to the child has always been treated distinctly from a parent’s rights. For example, a parent isn’t denied parenting time just because they are behind or delinquent on child support.
The Court of Appeals noted that they previously ruled in Evink v Evink, 214 Mich App 172 (1995), that a parent who voluntarily releases parental rights to the other parent is still required to pay child support. The Court of Appeals also noted that the only situation where a parent’s child support obligation is extinguished is if the parental rights are voluntarily given up pursuant to an adoption, as the court held in Bradley v Fulgham, 200 Mich App 156 (1993).
Lastly, in Beck, the Court of Appeals reasoned that it was against public policy to extinguish a parent’s duty to pay child support when their rights have been involuntarily terminated. This could result in parents refusing to report abuse or neglect because it would result in the removal of financial support. It also punishes a child financially for the misdeeds of the parent.
It will be interesting to see how the Michigan Supreme Court will rule, considering that the Legislature is silent on this issue, and the Court of Appeals has ruled, in the law’s silence, that a child support obligation continues after an involuntary termination of parental rights.
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
The Michigan Supreme Court will hear oral arguments this afternoon, Wednesday, October 6, 2010, on the case of In re Beck, opinion per curiam of the Court of Appeals, issued March 4, 2010 (Docket No. 293138) FOR PUBLICATION. The sole issue for the Michigan Supreme Court is whether a parent whose rights to his children have been involuntarily terminated pursuant to the Juvenile Code can be ordered to continue to pay child support.
In the Beck case, a father’s parental rights were terminated pursuant to the Juvenile Code in the Oakland County Circuit Court, meaning that they were terminated involuntarily due to abuse or neglect. However, despite the fact that his rights were terminated, the trial court ruled that his child support obligation would continue. The father appealed the trial court’s decision.
The Court of Appeals affirmed the trial court’s decision, and held that there was a difference between a parent’s rights and a parent’s responsibilities. The Michigan Legislature permits a court to terminate a parent’s rights, but is silent regarding a parent’s responsibilities if rights are terminated. The Court of Appeals ruled that children have a right to receive financial support from their parents, and this right cannot be bargained away by the parents. Further, a parent’s responsibility or financial liability to the child has always been treated distinctly from a parent’s rights. For example, a parent isn’t denied parenting time just because they are behind or delinquent on child support.
The Court of Appeals noted that they previously ruled in Evink v Evink, 214 Mich App 172 (1995), that a parent who voluntarily releases parental rights to the other parent is still required to pay child support. The Court of Appeals also noted that the only situation where a parent’s child support obligation is extinguished is if the parental rights are voluntarily given up pursuant to an adoption, as the court held in Bradley v Fulgham, 200 Mich App 156 (1993).
Lastly, in Beck, the Court of Appeals reasoned that it was against public policy to extinguish a parent’s duty to pay child support when their rights have been involuntarily terminated. This could result in parents refusing to report abuse or neglect because it would result in the removal of financial support. It also punishes a child financially for the misdeeds of the parent.
It will be interesting to see how the Michigan Supreme Court will rule, considering that the Legislature is silent on this issue, and the Court of Appeals has ruled, in the law’s silence, that a child support obligation continues after an involuntary termination of parental rights.
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Speed Up VA
by Jim Fausone
We get asked all the time - "can you make VA move faster on my claim?" My answer is "No one can make VA move fast". The US Supreme Court just agreed with me. On Monday the Supreme Court announced it will not hear a case challenging a lack of speed by the government.
The Vietnam Veterans of America and the Veterans of Modern Warfare allege that the VA takes far too long to process claims made by its members and for all veterans. The groups wanted a ruling that would force VA to respond within 90 days time for all initial claims and 180 days to resolve appeals. The lower federal courts ruled against the veteran groups on a variety of issues and the US Supreme court refused to take up the case. Apparently no one can make the VA beast move in a timely fashion. We will see if Congress takes up this challenge now that the US Supreme Court has declined.
To read more: http://liveshots.blogs.foxnews.com/2010/10/04/vets-groups-lose-at-supreme-court/#ixzz11U5ozZcw
We get asked all the time - "can you make VA move faster on my claim?" My answer is "No one can make VA move fast". The US Supreme Court just agreed with me. On Monday the Supreme Court announced it will not hear a case challenging a lack of speed by the government.
The Vietnam Veterans of America and the Veterans of Modern Warfare allege that the VA takes far too long to process claims made by its members and for all veterans. The groups wanted a ruling that would force VA to respond within 90 days time for all initial claims and 180 days to resolve appeals. The lower federal courts ruled against the veteran groups on a variety of issues and the US Supreme court refused to take up the case. Apparently no one can make the VA beast move in a timely fashion. We will see if Congress takes up this challenge now that the US Supreme Court has declined.
To read more: http://liveshots.blogs.foxnews.com/2010/10/04/vets-groups-lose-at-supreme-court/#ixzz11U5ozZcw
Tuesday, October 5, 2010
Relocating with a Child After a Divorce
by Wendy Alton
In Michigan, a divorced parent must seek approval from the Court if they wish to move their child out of state. If both parents agree to the relocation, the Court generally grants it. If one parent objects to the relocation, the Court may grant the request if the parent seeking the relocation can prove by a preponderance of the evidence that the relocation is warranted after reviewing the following factors:
1) Will the change improve the quality of life for the child and parent
2) The degree to which each parent has complied with their parenting time schedule
3) The degree to which the court can modify parenting time to preserve & foster the relationship 4) The extent to which the opposing parent is motivated by financial reasons
5) Domestic violence, regardless of whether it involves the child
The Court of Appeals recently evaluated a relocation case in Davenport v Mosholder, unpublished opinion per curiam of the Court of Appeals, issued September 9, 2010 (Docket No. 295852).
In Davenport v Mosholder, a relocation request was filed by the mother who wished to move from Michigan to Georgia. The testimony revealed that the child generally resided with his parents on alternating weeks. The trial court eventually concluded that the child had an established custodial environment with both parents, but that the proposed relocation would not alter that established custodial environment. Further, the trial court indicated that while the father would have less overnights after the move, the reduction was not significant and the child would still have daily access to his father, thus maintaining the established custodial environment.
The Court of Appeals, however, disagreed with this determination, indicating that the move to Georgia would clearly alter the established custodial environment. In an interesting analysis, the Court of Appeals relied on evidence that the father had almost daily contact with his child, coached his sports, served as a scout den leader, and generally was active in the child’s life on a daily basis, despite having the child only half of the year on an overnight basis. The Court of Appeals found that daily contact via webcam when the child relocated to Georgia was not an effective substitute for the clearly established custodial environment between father and son as it existed in Michigan.
The Court of Appeals recognized that an established custodial environment can exist with a parent even if that parent does not have the majority of the overnight parenting time. The Court acknowledged that active daily involvement can be the basis for an established custodial environment.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
In Michigan, a divorced parent must seek approval from the Court if they wish to move their child out of state. If both parents agree to the relocation, the Court generally grants it. If one parent objects to the relocation, the Court may grant the request if the parent seeking the relocation can prove by a preponderance of the evidence that the relocation is warranted after reviewing the following factors:
1) Will the change improve the quality of life for the child and parent
2) The degree to which each parent has complied with their parenting time schedule
3) The degree to which the court can modify parenting time to preserve & foster the relationship 4) The extent to which the opposing parent is motivated by financial reasons
5) Domestic violence, regardless of whether it involves the child
The Court of Appeals recently evaluated a relocation case in Davenport v Mosholder, unpublished opinion per curiam of the Court of Appeals, issued September 9, 2010 (Docket No. 295852).
In Davenport v Mosholder, a relocation request was filed by the mother who wished to move from Michigan to Georgia. The testimony revealed that the child generally resided with his parents on alternating weeks. The trial court eventually concluded that the child had an established custodial environment with both parents, but that the proposed relocation would not alter that established custodial environment. Further, the trial court indicated that while the father would have less overnights after the move, the reduction was not significant and the child would still have daily access to his father, thus maintaining the established custodial environment.
The Court of Appeals, however, disagreed with this determination, indicating that the move to Georgia would clearly alter the established custodial environment. In an interesting analysis, the Court of Appeals relied on evidence that the father had almost daily contact with his child, coached his sports, served as a scout den leader, and generally was active in the child’s life on a daily basis, despite having the child only half of the year on an overnight basis. The Court of Appeals found that daily contact via webcam when the child relocated to Georgia was not an effective substitute for the clearly established custodial environment between father and son as it existed in Michigan.
The Court of Appeals recognized that an established custodial environment can exist with a parent even if that parent does not have the majority of the overnight parenting time. The Court acknowledged that active daily involvement can be the basis for an established custodial environment.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Thursday, September 30, 2010
Jail for Dad of 23 kids: over $500,000 owed in child support
by Wendy Alton
A recent Detroit Free Press article and ABC News article discussed the case of a Western Michigan dad of 23 kids who was sentenced to jail for owing over $500,000 in child support.
First, this case is obviously unique, as he has fathered over 20 children. It is also unique because of the excessive amount of overdue child support. However, prison sentences are not as uncommon as you may think.
In Michigan, child support obligations are enforced by not only the courts, but also the local prosecutors and even the attorney general’s office. For non-payment of child support, the Friend of the Court can garnish your tax refunds, suspend your drivers license, file a lien against your property, report the debt to credit agencies, garnish a private pension or retirement, and issue a bench warrant for your arrest. Additionally, in cases where the amount of support owing is excessive, the Friend of the Court can refer the case to the local prosecutor for felony charges. Felony non-support cases can result in jail sentences, as evidenced by the results of the case involving the deadbeat dad with 23 kids.
What people don’t always realize is that child support is modifiable in Michigan. The Friend of the Court will conduct an automatic review of child support every 36 months. However, if there is a substantial change in income, a parent can file a request for modification and have it reviewed, even if it hasn’t been 36 months.
The lesson is clear—if there is a substantial change in income, it is important to request modification of child support. If the person paying child support becomes delinquent, the penalties can be excessive and extreme, and, in some cases, avoidable.
You can read the Detroit Free Press article here: Man linked to 23 kids gets prison in child support case
You can read the ABC News article here: Ultra Deadbeat Dad gets 23 Months in Jail
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
A recent Detroit Free Press article and ABC News article discussed the case of a Western Michigan dad of 23 kids who was sentenced to jail for owing over $500,000 in child support.
First, this case is obviously unique, as he has fathered over 20 children. It is also unique because of the excessive amount of overdue child support. However, prison sentences are not as uncommon as you may think.
In Michigan, child support obligations are enforced by not only the courts, but also the local prosecutors and even the attorney general’s office. For non-payment of child support, the Friend of the Court can garnish your tax refunds, suspend your drivers license, file a lien against your property, report the debt to credit agencies, garnish a private pension or retirement, and issue a bench warrant for your arrest. Additionally, in cases where the amount of support owing is excessive, the Friend of the Court can refer the case to the local prosecutor for felony charges. Felony non-support cases can result in jail sentences, as evidenced by the results of the case involving the deadbeat dad with 23 kids.
What people don’t always realize is that child support is modifiable in Michigan. The Friend of the Court will conduct an automatic review of child support every 36 months. However, if there is a substantial change in income, a parent can file a request for modification and have it reviewed, even if it hasn’t been 36 months.
The lesson is clear—if there is a substantial change in income, it is important to request modification of child support. If the person paying child support becomes delinquent, the penalties can be excessive and extreme, and, in some cases, avoidable.
You can read the Detroit Free Press article here: Man linked to 23 kids gets prison in child support case
You can read the ABC News article here: Ultra Deadbeat Dad gets 23 Months in Jail
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Wednesday, September 29, 2010
VA to Review 17,000 “Brown Water” Cases
by Kristina Derro
The VA has recently agreed to review the cases of nearly 17,000 “Brown Water” Vietnam Era veterans who have claimed disabilities related to Agent Orange exposure. VA previously denied a number of these claims without properly determining whether they served in Vietnam’s inland waterways (“Brown Water”) or in other locations where they would have been exposed to Agent Orange and other herbicides.
Many of these claims were held by VA while litigation was ongoing concerning “Blue Water” veterans and their exposure to herbicides, and were later denied. A review of these claims found that many of the so-called “Blue Water” veterans actually served in “Brown Water” or inland waters of Vietnam, and should have received the same presumptions of service-connection as those veterans who had “boots on the ground” in Vietnam. Unfortunately, their claims were denied by VA without looking up proper documentation to prove whether they actually served in “Brown Water”.
This recent agreement by VA allows certain veterans who were previously considered “Blue Water” veterans to have their claims reevaluated for evidence of “Brown Water” service, or evidence of service in other locations where VA acknowledges that herbicides may have been used. Visit http://veterans.senate.gov/press-releases.cfm?action=release.display&release_id=4acabc2b-f423-4543-ab3c-e38cece413fc to view the press release and for more information. Links are provided on the press release of a list of ships that have been identified by VA as having traveled in inland waters of Vietnam.
The VA has recently agreed to review the cases of nearly 17,000 “Brown Water” Vietnam Era veterans who have claimed disabilities related to Agent Orange exposure. VA previously denied a number of these claims without properly determining whether they served in Vietnam’s inland waterways (“Brown Water”) or in other locations where they would have been exposed to Agent Orange and other herbicides.
Many of these claims were held by VA while litigation was ongoing concerning “Blue Water” veterans and their exposure to herbicides, and were later denied. A review of these claims found that many of the so-called “Blue Water” veterans actually served in “Brown Water” or inland waters of Vietnam, and should have received the same presumptions of service-connection as those veterans who had “boots on the ground” in Vietnam. Unfortunately, their claims were denied by VA without looking up proper documentation to prove whether they actually served in “Brown Water”.
This recent agreement by VA allows certain veterans who were previously considered “Blue Water” veterans to have their claims reevaluated for evidence of “Brown Water” service, or evidence of service in other locations where VA acknowledges that herbicides may have been used. Visit http://veterans.senate.gov/press-releases.cfm?action=release.display&release_id=4acabc2b-f423-4543-ab3c-e38cece413fc to view the press release and for more information. Links are provided on the press release of a list of ships that have been identified by VA as having traveled in inland waters of Vietnam.
Post 9/11 Stop-Loss Bonus
by Jim Fausone
Time is running out to apply for retroactive bonus pay for 145,000 military personnel who were forced to remain on duty beyond their original discharge date, following the September 11th attacks. Congress has approved back pay of $500 for each month of involuntary service; the average lump-sum due is between $3,500 and $3,800. Applications must be submitted by October 21, 2010. The DoD is still trying to track down about 90,000 veterans. I suspect a large number of the missing veterans are National Guard and Reserve troops. You can submit your application online at www.defense.gov/stoploss. If you have a relative or friend that maybe eligible for this payment, please pass the information along.
Time is running out to apply for retroactive bonus pay for 145,000 military personnel who were forced to remain on duty beyond their original discharge date, following the September 11th attacks. Congress has approved back pay of $500 for each month of involuntary service; the average lump-sum due is between $3,500 and $3,800. Applications must be submitted by October 21, 2010. The DoD is still trying to track down about 90,000 veterans. I suspect a large number of the missing veterans are National Guard and Reserve troops. You can submit your application online at www.defense.gov/stoploss. If you have a relative or friend that maybe eligible for this payment, please pass the information along.
Tuesday, September 28, 2010
Attorneys Cost Plaintiff an $11 Million Judgment
by Kristina Derro
A typo recently cost a plaintiff an $11 million judgment. An NFL cheerleader thought she was suing TheDirty.com, after comments on the website suggested that she had an affair with a player and contracted two sexually transmitted diseases. However, a clerical error by her attorneys in the complaint named the offending website as TheDirt.com, a completely different gossip website.
A U.S. District Court judge ordered TheDirt.com (the wrong website) to pay $1 million in compensatory damages and $10 million in punitive damages for failing to respond to the lawsuit. However, as it appears that the complaint named the wrong defendant, the judgment may be overturned.
Instances like this shed light on the importance of good attorneys—not only ones that know the law and are experienced litigators, but ones who pay great attention to detail.
A typo recently cost a plaintiff an $11 million judgment. An NFL cheerleader thought she was suing TheDirty.com, after comments on the website suggested that she had an affair with a player and contracted two sexually transmitted diseases. However, a clerical error by her attorneys in the complaint named the offending website as TheDirt.com, a completely different gossip website.
A U.S. District Court judge ordered TheDirt.com (the wrong website) to pay $1 million in compensatory damages and $10 million in punitive damages for failing to respond to the lawsuit. However, as it appears that the complaint named the wrong defendant, the judgment may be overturned.
Instances like this shed light on the importance of good attorneys—not only ones that know the law and are experienced litigators, but ones who pay great attention to detail.
Monday, September 27, 2010
Divorce Mediation or Trial or Both?
by Wendy Alton
The divorce trial of Dodgers’ owner Frank McCourt & his wife Jamie has taken a brief pause so that the couple and their attorneys can go through Mediation today in order to try to resolve and settle their divorce.
What exactly is Mediation?
Mediation in divorce cases is a private session between the couple, their lawyers, and a neutral Mediator, usually a lawyer who has been trained in Mediation, where they freely and openly discuss settlement of all or some of the issues in the divorce. In Michigan, everything that happens in Mediation is confidential, and offers and counter-offers exchanged in Mediation cannot be used in the Divorce trial or further proceedings. The Mediator’s role is to encourage the couple to work out their differences and come to a mutual resolution of all issues. If an agreement is reached, it is reduced to a final writing, a Divorce Judgment, and entered by the Court, thus ending the divorce.
Many divorce cases resolve in Mediation, and it is by far a less expensive alternative than a divorce trial. However, even in the middle of trial, like the McCourt’s trial, Mediation is also a tool to try to resolve issues that remain outstanding and disputed.
You can read the LA Times article here: Frank McCourt attorney's admission sets the stage for a possible settlement
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
The divorce trial of Dodgers’ owner Frank McCourt & his wife Jamie has taken a brief pause so that the couple and their attorneys can go through Mediation today in order to try to resolve and settle their divorce.
What exactly is Mediation?
Mediation in divorce cases is a private session between the couple, their lawyers, and a neutral Mediator, usually a lawyer who has been trained in Mediation, where they freely and openly discuss settlement of all or some of the issues in the divorce. In Michigan, everything that happens in Mediation is confidential, and offers and counter-offers exchanged in Mediation cannot be used in the Divorce trial or further proceedings. The Mediator’s role is to encourage the couple to work out their differences and come to a mutual resolution of all issues. If an agreement is reached, it is reduced to a final writing, a Divorce Judgment, and entered by the Court, thus ending the divorce.
Many divorce cases resolve in Mediation, and it is by far a less expensive alternative than a divorce trial. However, even in the middle of trial, like the McCourt’s trial, Mediation is also a tool to try to resolve issues that remain outstanding and disputed.
You can read the LA Times article here: Frank McCourt attorney's admission sets the stage for a possible settlement
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Thursday, September 23, 2010
TBI = Purple Heart
by Jim Fausone
There has been some confusion on whether a veteran with a Traumatic Brain Injury is entitled to a Purple Heart. In a sign of confusion over the issue, the Pentagon's chief spokesman said last week that soldiers with concussions were not eligible for the Purple Heart. DOD then took the position that "While not every service member exposed to IED blasts will suffer the lasting consequences associated with TBI, every service member who is exposed to an enemy generated explosion and receives medical attention should receive the Purple Heart". It is reported that some Army commanders and medical officials were not award the Purple Heart for concussions. Read more about the problem below:
http://www.propublica.org/article/congresswoman-calls-for-review-of-purple-heart-decisions
There has been some confusion on whether a veteran with a Traumatic Brain Injury is entitled to a Purple Heart. In a sign of confusion over the issue, the Pentagon's chief spokesman said last week that soldiers with concussions were not eligible for the Purple Heart. DOD then took the position that "While not every service member exposed to IED blasts will suffer the lasting consequences associated with TBI, every service member who is exposed to an enemy generated explosion and receives medical attention should receive the Purple Heart". It is reported that some Army commanders and medical officials were not award the Purple Heart for concussions. Read more about the problem below:
http://www.propublica.org/article/congresswoman-calls-for-review-of-purple-heart-decisions
Tuesday, September 21, 2010
Service Member Life Insurance
by Jim Fausone
SGLI is a VA program that provides low cost group life insurance to members of the Military and Uniformed Services, including commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration, cadets and midshipmen of the service academies. Members are automatically insured under Servicemembers Group Life Insurance (SGLI) for the maximum amount of $400,000 unless an election is filed reducing the insurance by $50,000 increments or canceling it entirely.
In addition the SGLI coverage now includes Traumatic Injury Protection. This coverage provides service members protection against loss due to traumatic injuries and is designed to provide financial assistance to members so their loved ones can be with them during their recovery from their injuries. The coverage ranges from $25,000 to $100,000 depending on the nature of the injury.
Make sure if you are entitled to the insurance you demand the lump sum payment. It is best for you to manage the money rather than let VA or its insurer Prudential handle your money.
http://www.military.com/benefits/survivor-benefits/servicemembers-group-life-insurance
SGLI is a VA program that provides low cost group life insurance to members of the Military and Uniformed Services, including commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration, cadets and midshipmen of the service academies. Members are automatically insured under Servicemembers Group Life Insurance (SGLI) for the maximum amount of $400,000 unless an election is filed reducing the insurance by $50,000 increments or canceling it entirely.
In addition the SGLI coverage now includes Traumatic Injury Protection. This coverage provides service members protection against loss due to traumatic injuries and is designed to provide financial assistance to members so their loved ones can be with them during their recovery from their injuries. The coverage ranges from $25,000 to $100,000 depending on the nature of the injury.
Make sure if you are entitled to the insurance you demand the lump sum payment. It is best for you to manage the money rather than let VA or its insurer Prudential handle your money.
http://www.military.com/benefits/survivor-benefits/servicemembers-group-life-insurance
Friday, September 17, 2010
The Costly Lesson of Full Disclosure to Friend of the Court
by Wendy Alton
In Michigan, child support is modifiable upon change of circumstances, and in order to modify the amount of child support, you must file a motion/request with Friend of the Court. A referee in Friend of the Court then reviews each parent’s income, health care costs, child care costs, and parenting time and makes a recommendation based upon those facts. Once a recommendation is made, each parent has an opportunity to object to the recommendation, and if there is an objection filed, the matter goes to the Judge for a formal hearing.
So what happens if during the entire process one of the parents is less than forthcoming with their income information? What happens if one parent deliberately misstates their income?
The Court of Appeals recently discussed this exact situation in Keinz v Keinz, unpublished opinion per curiam of the Court of Appeals, issued September 16, 2010 (Docket No. 292781).
In Keinz v Keinz, a modification request was filed by the mother 3 years after the divorce was final. At the referee hearing, the father not only stated that his gross annual income was $41k, he produced a letter from his employer indicating the same thing. The referee made a recommendation, and the mother objected to that recommendation. Eventually a full evidentiary hearing was held by the Judge, at which time it was discovered that the father actually earned $81k annually, double the income he asserted at the referee hearing.
The father’s justification was that he was working overtime, but that due to his health, he didn’t expect to work any more overtime. However, it was discovered that at the time that he asserted that he would only earn $41k annually, he had already earned $40k and only half the year was over.
The mother asked the Court to make the father pay for her attorney fees stating that his position/defense was frivolous, which means that the father asserted a position that he knew was not true. While the trial court initially denied the mother’s request for attorney fees, the Court of Appeals determined that the father deliberately deceived the referee by offering evidence that he knew was not true. The Court of Appeals determined that the father’s position in the child support hearings was truly frivolous and because the mother ultimately prevailed with a higher child support amount (albeit after numerous court hearings), the father was responsible for paying the mother’s attorney fees.
The cost for deliberately deceiving Friend of the Court: paying for two attorneys.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
In Michigan, child support is modifiable upon change of circumstances, and in order to modify the amount of child support, you must file a motion/request with Friend of the Court. A referee in Friend of the Court then reviews each parent’s income, health care costs, child care costs, and parenting time and makes a recommendation based upon those facts. Once a recommendation is made, each parent has an opportunity to object to the recommendation, and if there is an objection filed, the matter goes to the Judge for a formal hearing.
So what happens if during the entire process one of the parents is less than forthcoming with their income information? What happens if one parent deliberately misstates their income?
The Court of Appeals recently discussed this exact situation in Keinz v Keinz, unpublished opinion per curiam of the Court of Appeals, issued September 16, 2010 (Docket No. 292781).
In Keinz v Keinz, a modification request was filed by the mother 3 years after the divorce was final. At the referee hearing, the father not only stated that his gross annual income was $41k, he produced a letter from his employer indicating the same thing. The referee made a recommendation, and the mother objected to that recommendation. Eventually a full evidentiary hearing was held by the Judge, at which time it was discovered that the father actually earned $81k annually, double the income he asserted at the referee hearing.
The father’s justification was that he was working overtime, but that due to his health, he didn’t expect to work any more overtime. However, it was discovered that at the time that he asserted that he would only earn $41k annually, he had already earned $40k and only half the year was over.
The mother asked the Court to make the father pay for her attorney fees stating that his position/defense was frivolous, which means that the father asserted a position that he knew was not true. While the trial court initially denied the mother’s request for attorney fees, the Court of Appeals determined that the father deliberately deceived the referee by offering evidence that he knew was not true. The Court of Appeals determined that the father’s position in the child support hearings was truly frivolous and because the mother ultimately prevailed with a higher child support amount (albeit after numerous court hearings), the father was responsible for paying the mother’s attorney fees.
The cost for deliberately deceiving Friend of the Court: paying for two attorneys.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Michigan May be First to Implement Roadside Drug Testing
by Melissa Cox
On September 8, 2010 a bill was introduced to the Legislature that would authorize police to administer a roadside saliva test to check drivers for illegal drug use. The test would be similar, in theory, to the preliminary breath tests used to test for alcohol when an officer stops a driver suspected of being intoxicated.
In Michigan, the presence of any level of an illegal drug is grounds for a charge of operating with the presence of drugs. However, when an officer has probable cause that a driver is on drugs, confirmation often requires a search warrant and hospital-administered blood testing.
http://www.freep.com/article/20100909/NEWS06/9090347/Michigan-may-be-1st-to-adopt-roadside-drug-testing
In Michigan, the presence of any level of an illegal drug is grounds for a charge of operating with the presence of drugs. However, when an officer has probable cause that a driver is on drugs, confirmation often requires a search warrant and hospital-administered blood testing.
http://www.freep.com/article/20100909/NEWS06/9090347/Michigan-may-be-1st-to-adopt-roadside-drug-testing
Thursday, September 16, 2010
Insurance Death Benefits Greed
by Jim Fausone
Upon the death of a service member, his or her family is entitled to death benefits from service life insurance. The financial press recently broke the story that Prudential Financial did not pay the lump sum to the families as expected. Instead, Prudential Financial Inc. would withhold lump-sum payments of life insurance benefits for survivors of fallen service members. The families, which were entitled to lump sums, were simply given checks to draw down on the amounts owed.
Prudential held $662 million of survivors’ money in its corporate general account as of June 30, according to information provided by the VA. Prudential’s general account earned 4.2 percent in 2009, mostly from bond investments, according to regulatory filings. The company has paid survivors holding Alliance Accounts 0.5 percent in 2010. This is financial greed at its worse. The company earned 3.7% on other people’s money.
If you know someone in this situation, have them contact us. The victims of this greed need to consider a class action to make Prudential pay the ill-gotten gains to the families of our fallen American heroes.
http://www.bloomberg.com/news/2010-09-14/how-prudential-cut-a-deal-with-the-va.html
Upon the death of a service member, his or her family is entitled to death benefits from service life insurance. The financial press recently broke the story that Prudential Financial did not pay the lump sum to the families as expected. Instead, Prudential Financial Inc. would withhold lump-sum payments of life insurance benefits for survivors of fallen service members. The families, which were entitled to lump sums, were simply given checks to draw down on the amounts owed.
Prudential held $662 million of survivors’ money in its corporate general account as of June 30, according to information provided by the VA. Prudential’s general account earned 4.2 percent in 2009, mostly from bond investments, according to regulatory filings. The company has paid survivors holding Alliance Accounts 0.5 percent in 2010. This is financial greed at its worse. The company earned 3.7% on other people’s money.
If you know someone in this situation, have them contact us. The victims of this greed need to consider a class action to make Prudential pay the ill-gotten gains to the families of our fallen American heroes.
http://www.bloomberg.com/news/2010-09-14/how-prudential-cut-a-deal-with-the-va.html
Tuesday, September 14, 2010
New PTSD Rule - New Problem
by Jim Fausone
As many VA watchers know, VA adopted a new law "Relaxation of Evidentiary Standard for Establishing In Service Stressors in Claims for PTSD" dated July 13, 2010.
We at Legal Help for Veterans, PLLC have received the first rating decision taking this law into account. The VA conceded the Vietnam Vet's stressor exposure based on the new rule. This Army veteran had a Vietnam Service Medal and Campaign Medal. VA granted a 10% rating and set an effective date of July 13, 2010. VA did not evaluate the stressors under the old law. If it had, the effective date would have been 9 months earlier. Is this going to be the way VA handles these PTSD cases? VA concedes the stressor under the new law and does not evaluate or give an effective date back to the filing of the claim. It seems to me this is improper when the law was changed to make VA's life easier not to swindle vets on the effective date and retro payments.
Yes, we are going to appeal. I believe the Court will remand and make VA look back to the date of filing the claim using the old law.
We at Legal Help for Veterans, PLLC have received the first rating decision taking this law into account. The VA conceded the Vietnam Vet's stressor exposure based on the new rule. This Army veteran had a Vietnam Service Medal and Campaign Medal. VA granted a 10% rating and set an effective date of July 13, 2010. VA did not evaluate the stressors under the old law. If it had, the effective date would have been 9 months earlier. Is this going to be the way VA handles these PTSD cases? VA concedes the stressor under the new law and does not evaluate or give an effective date back to the filing of the claim. It seems to me this is improper when the law was changed to make VA's life easier not to swindle vets on the effective date and retro payments.
Yes, we are going to appeal. I believe the Court will remand and make VA look back to the date of filing the claim using the old law.
Monday, September 13, 2010
Permanent Disability
by Jim Fausone
If you have a disability rating from VA, the first step is done. But you will want to get rated at 100% permanently disabled if appropriate. It is just one way that a disabled vet can take care of his family now and in the future. Without that designation, the vet’s family is not eligible for many benefits including medical insurance or college costs. Also, the VA may not pay a survivor's benefit to the surviving spouse unless they can prove the vet’s death is directly related to his military service. Most vets don't want their spouse to have to fight the VA. A recent article is worth reading on this subject.
http://www.stltoday.com/news/local/metro/article_6ee6516a-d8c5-55ab-a850-e7700f4cf26b.html
http://www.stltoday.com/news/local/metro/article_6ee6516a-d8c5-55ab-a850-e7700f4cf26b.html
Friday, September 10, 2010
Personality Disorder Misdiagnosis
by Jim Fausone
We see soldiers discharged for or diagnosed with "personality disorder" all too often in our veteran disability practice. As a result, the veteran is not going to receive VA benefits. Personality disorder is a "preexisting condition" so there will be no grant of VA disability compensation. After an article in The Nation magazine, the Defense Department changed its policy and began requiring a top-level review of each case to ensure post-traumatic stress or a brain injury wasn't the underlying cause rather than a pre-existing condition. The Army had been discharging 1000 vets per year with personality disorder. However, the annual number of personality disorder cases dropped by 75% after the new policy was implemented. Only 260 soldiers were discharged on those grounds in 2009.
At the same time, the number of post-traumatic stress disorder cases has soared. By 2008, more than 14,000 soldiers had been diagnosed with PTSD - twice as many as two years before. The Army is now looking at if it misdiagnosed and discharged thousands of veterans in the last few years. The article attached discusses this problem and highlights the need to challenge a VA denial of claims for personality disorder.
http://www.usatoday.com/news/health/2010-08-15-incorrect-ptsd-dismissals_N.htm
We see soldiers discharged for or diagnosed with "personality disorder" all too often in our veteran disability practice. As a result, the veteran is not going to receive VA benefits. Personality disorder is a "preexisting condition" so there will be no grant of VA disability compensation. After an article in The Nation magazine, the Defense Department changed its policy and began requiring a top-level review of each case to ensure post-traumatic stress or a brain injury wasn't the underlying cause rather than a pre-existing condition. The Army had been discharging 1000 vets per year with personality disorder. However, the annual number of personality disorder cases dropped by 75% after the new policy was implemented. Only 260 soldiers were discharged on those grounds in 2009.
At the same time, the number of post-traumatic stress disorder cases has soared. By 2008, more than 14,000 soldiers had been diagnosed with PTSD - twice as many as two years before. The Army is now looking at if it misdiagnosed and discharged thousands of veterans in the last few years. The article attached discusses this problem and highlights the need to challenge a VA denial of claims for personality disorder.
http://www.usatoday.com/news/health/2010-08-15-incorrect-ptsd-dismissals_N.htm
Friday, September 3, 2010
Fausone Bohn Helps Local Business Obtain Former Wheel Plant
by Andrea Hayden
An article in the Livingston Daily recently highlighted the purchase by a local business of a former wheel manufacturing plant in Howell, Michigan. The plant had been mothballed by Kelsey-Hayes Lemmerz, and vacant for over five years. The purchase of the property by Regal Recycling will give the area a needed stimulus with the addition of jobs and an operating presence at the facility. Howell Township Clerk, Carolyn Eaton, stated that “[h]aving a building of that size operating adds some value to the town. We don’t like to see any of our buildings empty.” This is certainly a common sentiment among Michigan residents considering that “for sale or lease” signs have become a common adornment to building facades across the state.
With such a surplus of property on the market, and property values having plummeted, if you’re looking to buy it would seem that now is a great time to find a deal. This may be true, however, oftentimes the purchase of property such as the former Kelsey-Hayes Wheel plant is complicated by the presence of bankruptcy, tax, environmental, or other legal issues that must be dealt with as part of the purchase. Fausone Bohn acted as legal counsel to Regal Recycling throughout the purchase of the former wheel plant, providing guidance on complex legal issues encountered throughout the transaction, including issues involving the adjacent Shiawassee River – a Superfund Site listed on the U.S. EPA’s National Priorities List.
If you are considering the purchase of commercial or industrial property, whether it be a Superfund site or the local welding shop down the road, and are interested in learning more about real estate transactions in Michigan, please call Paul Bohn or Andrea Hayden at 248-380-0000, or e-mail them at pbohn@fb-firm.com and ahayden@fb-firm.com
Read more about the former Kelsey-Hayes Wheel Plant purchase at: http://www.livingstondaily.com/apps/pbcs.dll/article?AID=/201009020500/NEWS01/100902001
An article in the Livingston Daily recently highlighted the purchase by a local business of a former wheel manufacturing plant in Howell, Michigan. The plant had been mothballed by Kelsey-Hayes Lemmerz, and vacant for over five years. The purchase of the property by Regal Recycling will give the area a needed stimulus with the addition of jobs and an operating presence at the facility. Howell Township Clerk, Carolyn Eaton, stated that “[h]aving a building of that size operating adds some value to the town. We don’t like to see any of our buildings empty.” This is certainly a common sentiment among Michigan residents considering that “for sale or lease” signs have become a common adornment to building facades across the state.
With such a surplus of property on the market, and property values having plummeted, if you’re looking to buy it would seem that now is a great time to find a deal. This may be true, however, oftentimes the purchase of property such as the former Kelsey-Hayes Wheel plant is complicated by the presence of bankruptcy, tax, environmental, or other legal issues that must be dealt with as part of the purchase. Fausone Bohn acted as legal counsel to Regal Recycling throughout the purchase of the former wheel plant, providing guidance on complex legal issues encountered throughout the transaction, including issues involving the adjacent Shiawassee River – a Superfund Site listed on the U.S. EPA’s National Priorities List.
If you are considering the purchase of commercial or industrial property, whether it be a Superfund site or the local welding shop down the road, and are interested in learning more about real estate transactions in Michigan, please call Paul Bohn or Andrea Hayden at 248-380-0000, or e-mail them at pbohn@fb-firm.com and ahayden@fb-firm.com
Read more about the former Kelsey-Hayes Wheel Plant purchase at: http://www.livingstondaily.com/apps/pbcs.dll/article?AID=/201009020500/NEWS01/100902001
Tuesday, August 31, 2010
Video Answers to Questions
By Jim Fausone
We get asked a lot of questions and try to answer as many as possible by email. We have also provided answers to FAQ (Frequently Asked Questions) on our website. You can also get answers on YOUTUBE. We are now posting short videos that answer common questions and explain some of the inside information on veterans benefits. Please see if we can answer your questions by checking out our YouTube channel. http://www.youtube.com/user/LegalHelpForVeterans
We get asked a lot of questions and try to answer as many as possible by email. We have also provided answers to FAQ (Frequently Asked Questions) on our website. You can also get answers on YOUTUBE. We are now posting short videos that answer common questions and explain some of the inside information on veterans benefits. Please see if we can answer your questions by checking out our YouTube channel. http://www.youtube.com/user/LegalHelpForVeterans
Thursday, August 26, 2010
Re-Married…. With Children
by Wendy Alton
You’ve been divorced for a while now, and all of a sudden your ex remarries to someone you feel is a bad influence on the children. Or, you’ve just remarried yourself and can provide a more stable household. That should be enough to get you back into court to have the judge re-evaluate custody and parenting time, right?
Nope.
In Michigan, before the Court can consider changes in parenting time or custody, the person requesting the change must demonstrate “proper cause” or a “change in circumstances.” While instinctively one may think that a remarriage of a former spouse is a change in circumstances, the Michigan Court of Appeals decided differently in Allen v Belonga, unpublished opinion per curiam of the Court of Appeals, issued July 20, 2010 (Docket No. 295753).
Without reviewing the facts of that case in particular, what is important to note is that the Michigan Court of Appeals indicated that a parent’s remarriage is generally a “normal life change” and does not rise to the level of “change in circumstances” required under Michigan law. The Michigan Court of Appeals indicated that the evidence must show that a “material change” has occurred and that this “material change” has or will have an effect on the child.
Changes in custody and parenting time are difficult to request and the courts enforce the evidentiary standards for each particular change requested. It is extremely important, throughout your divorce, to understand that your agreement as to custody and parenting time will be binding and cannot be changed by the court at just your request. It is important to have good legal counsel through this process so you understand the long-term effects of your decisions and agreements.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
You’ve been divorced for a while now, and all of a sudden your ex remarries to someone you feel is a bad influence on the children. Or, you’ve just remarried yourself and can provide a more stable household. That should be enough to get you back into court to have the judge re-evaluate custody and parenting time, right?
Nope.
In Michigan, before the Court can consider changes in parenting time or custody, the person requesting the change must demonstrate “proper cause” or a “change in circumstances.” While instinctively one may think that a remarriage of a former spouse is a change in circumstances, the Michigan Court of Appeals decided differently in Allen v Belonga, unpublished opinion per curiam of the Court of Appeals, issued July 20, 2010 (Docket No. 295753).
Without reviewing the facts of that case in particular, what is important to note is that the Michigan Court of Appeals indicated that a parent’s remarriage is generally a “normal life change” and does not rise to the level of “change in circumstances” required under Michigan law. The Michigan Court of Appeals indicated that the evidence must show that a “material change” has occurred and that this “material change” has or will have an effect on the child.
Changes in custody and parenting time are difficult to request and the courts enforce the evidentiary standards for each particular change requested. It is extremely important, throughout your divorce, to understand that your agreement as to custody and parenting time will be binding and cannot be changed by the court at just your request. It is important to have good legal counsel through this process so you understand the long-term effects of your decisions and agreements.
If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.
Wednesday, August 25, 2010
Medical Malpractice Leads to Insignificant Award
by Kristina Derro
An article in The Denver Post highlighted the recent award an Army veteran received for having a surgical clamp left in his chest after surgery at the Denver VA Medical Center—only $130,000. It is astounding as to how little an injury like that is actually worth in the eyes of the VA.
In order to get $130,000 the veteran had to proceed to trial. Prior to trial, VA only offered $100,000 for settlement. After going through a rigorous and costly three-day trial, the federal judge awarded the veteran $130,000.
The news article explained that the veteran was disappointed with the award by the judge. Rightly so, considering the fact that the surgical clamp is still inside his chest, because doctors told him that it was too risky to be removed since it was embedded in the muscle.
Read the article in its entirety: http://www.denverpost.com/courts/ci_15834692
An article in The Denver Post highlighted the recent award an Army veteran received for having a surgical clamp left in his chest after surgery at the Denver VA Medical Center—only $130,000. It is astounding as to how little an injury like that is actually worth in the eyes of the VA.
In order to get $130,000 the veteran had to proceed to trial. Prior to trial, VA only offered $100,000 for settlement. After going through a rigorous and costly three-day trial, the federal judge awarded the veteran $130,000.
The news article explained that the veteran was disappointed with the award by the judge. Rightly so, considering the fact that the surgical clamp is still inside his chest, because doctors told him that it was too risky to be removed since it was embedded in the muscle.
Read the article in its entirety: http://www.denverpost.com/courts/ci_15834692
Tuesday, August 24, 2010
VARO Detroit Report
Jim Fausone
Our local VARO is representative of others around the country. Detroit is better than many from our experience. VA nationally reports its accuracy rate on disability claims of 83% so it makes errors 17% of the time. A recent VA IG report is troubling as Detroit had a 21% error rate. The VA IG found in Detroit:
Management did not timely train Rating Veterans Service Representatives (RVSR) regarding new procedures for evaluating traumatic brain injury (TBI) claims despite VBA issuing new guidance in January 2009. Also, staff needs to improve the processing of temporary 100 percent disability evaluations.
VARO staff did not accurately process claims for 25 (21 percent) of 120 claims reviewed. We identified nine additional claims processing inaccuracies attributable to claims redistributed to other VAROs to complete for workload management reasons.
Management also needs to strengthen controls over the following areas:
• Establishing mail procedures to ensure staff timely record Notices of Disagreement (NODs) for appealed claims in the Veterans Appeals Control and Locator System (VACOLS);
• Correcting errors identified by VBA’s Systematic Technical Accuracy Review (STAR) Program; and
• Processing incompetency determinations.
Read more at http://www4.va.gov/oig/publications/report-summary.asp?id=3668
We know in Detroit if you make automobiles with 21% defects it is not acceptable. You will go out of business and the competition will eat your lunch. The Detroit VARO and those around the country need to get to an acceptable error rate so they do it right 99 % of the time, not 83% .
Our local VARO is representative of others around the country. Detroit is better than many from our experience. VA nationally reports its accuracy rate on disability claims of 83% so it makes errors 17% of the time. A recent VA IG report is troubling as Detroit had a 21% error rate. The VA IG found in Detroit:
Management did not timely train Rating Veterans Service Representatives (RVSR) regarding new procedures for evaluating traumatic brain injury (TBI) claims despite VBA issuing new guidance in January 2009. Also, staff needs to improve the processing of temporary 100 percent disability evaluations.
VARO staff did not accurately process claims for 25 (21 percent) of 120 claims reviewed. We identified nine additional claims processing inaccuracies attributable to claims redistributed to other VAROs to complete for workload management reasons.
Management also needs to strengthen controls over the following areas:
• Establishing mail procedures to ensure staff timely record Notices of Disagreement (NODs) for appealed claims in the Veterans Appeals Control and Locator System (VACOLS);
• Correcting errors identified by VBA’s Systematic Technical Accuracy Review (STAR) Program; and
• Processing incompetency determinations.
Read more at http://www4.va.gov/oig/publications/report-summary.asp?id=3668
We know in Detroit if you make automobiles with 21% defects it is not acceptable. You will go out of business and the competition will eat your lunch. The Detroit VARO and those around the country need to get to an acceptable error rate so they do it right 99 % of the time, not 83% .
Thursday, August 19, 2010
Grandparenting Rights
Michigan law recognizes that a relationship between a grandparent and a grandchild provides the child with intangible benefits not available in other relationships. Thus, in certain circumstances, grandparents do have rights.
On January 3, 2005, the Grandparenting Time Bill was signed into law, creating new “rights” for grandparents following the Michigan Supreme Court Decision in Derose v Derose, 469 Mich 320; 666 NW2d 636 (2003), which held Michigan’s former grandparent visitation law to be unconstitutional. In Derose, the Michigan Supreme Court asked the Legislature to redraft the Michigan law in order to make it constitutional, allowing grandparents and grandchildren access to one another in limited circumstances. In response, MCL 722.27b was enacted. The law more staunchly protects parental rights as required by the Constitution and Michigan Supreme Court.
Under the law, grandparents may request to see their grandchildren if they have been denied access by the parent in any of the following circumstances:
Under the law, grandparents may request to see their grandchildren if they have been denied access by the parent in any of the following circumstances:
(a) An action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court;
(b) The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;
(c) The child’s parent who is a child of the grandparents is deceased;
(d) The child’s parents have never been married, they are not residing in the same household, and paternity has been established;
(e) Legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; or
(f) In the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.
(b) The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;
(c) The child’s parent who is a child of the grandparents is deceased;
(d) The child’s parents have never been married, they are not residing in the same household, and paternity has been established;
(e) Legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; or
(f) In the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.
The statute, however, creates a presumption that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(b)(4)(b). To rebut the presumption, a grandparent must prove that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court will dismiss the action.
Even if the court finds that a grandparent has met the standard for rebutting the presumption, the court must consider whether it is in the best interests of the child to enter an order for grandparenting time. MCL 722.27b(6).
If you are interested in learning more about grandparent rights, divorce, or family law, please call Melissa Cox at 248-380-0000 ext. 240 or email her at mcox@fb-firm.com.
Even if the court finds that a grandparent has met the standard for rebutting the presumption, the court must consider whether it is in the best interests of the child to enter an order for grandparenting time. MCL 722.27b(6).
If you are interested in learning more about grandparent rights, divorce, or family law, please call Melissa Cox at 248-380-0000 ext. 240 or email her at mcox@fb-firm.com.
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