Wednesday, July 28, 2010

Specialty Veterans’ Treatment at Local Courts

Cooperative efforts between the VA and several local state courts have allowed for the implementation of a specialty court. These specialty courts around the state of Michigan (with many others in different states as well) give service members from World War II up through the recent Iraq and Afghanistan conflicts rehabilitation from drug addition, alcohol abuse, theft, vagrancy, and other nonviolent crimes that stem from post traumatic stress disorder (PTSD), traumatic brain injury (TBI), or other war-related symptoms.

It is up to the local court, through its judges, staff, and probation department, to adjust their dockets to allow for the program. However, the treatment itself is paid for entirely by the VA. It is a unique way of handling non-violent crimes instead of the usual jail-time or probation. It allows the veteran to be treated for the underlying conditions leading to the commission of these crimes in the first instance.

Tuesday, July 27, 2010

VA Allows Use of Marijuana

VA has issued a department directive allowing veterans to use marijuana in those states that have legalized the drug for medicinal purposes. The policy will not permit VA doctors to prescribe marijuana, but it will address the concern of many patients who use the drug that they could lose access to their prescription pain medication if caught in a drug screen. Under department rules, veterans can be denied pain medications if they are found to be using illegal drugs. We have watched the legalization of marijuana process in Michigan and can tell you that many unforeseen circumstances will arise with the VA's new rule. You can expect problems between different VA medical centers and VAROs. To read more about the new policy, click here.

Monday, July 26, 2010

Delayed Seizures From Head Injury

A recent study found that Vietnam vets with penetrating head injuries could first exhibit seizures decades after the injury. The Journal Neurology published a report that found that among a group of 199 Vietnam veterans, about 13% developed post-traumatic epilepsy more than 14 years after they had suffered a penetrating head wound, such as a gunshot injury or shrapnel that entered brain tissue. In at least one instance the onset was 35 years later. The LA Times wrote about this study "It is unclear how the study relates to combatants returning from Iraq and Afghanistan today, the authors said. The Vietnam veterans in the study suffered from penetrating brain injuries, which are rarer in soldiers fighting in the current conflicts because helmets have improved. Today, closed-head injuries (where the brain is not penetrated) are more common, in part because of the helmet improvements and partly because of a change in the weaponry used in modern warfare." The VA would be well advised to take these results into account. This once again proves that VA, veterans and their advocates should not simply dismiss a medical nexus because of the passage of time.


Veterans can have seizures decades after a head injury, study finds

Tuesday, July 20, 2010

Divorce Could Dissolve the Dodgers

Even the Dodgers aren’t safe from Divorce.

The divorce of Frank & Jamie McCourt has become even more heated as the couple has mutually asserted that each of them doesn’t have enough money, and bills are piling up sky high. The Judge handling their divorce has indicated that if they continue to bicker about money, he may order that the asset they are arguing about, the Dodgers, will be sold.

Can the Judge actually do that? Can the Judge order that the Dodgers be sold to the highest bidder? Absolutely!

With the downward trend of the economy, more and more couples are fighting about debt rather than assets, and most property or assets are under water and have negative equity. Sometimes even when there is property with positive equity, the debts are so overwhelming that the property has to be sold to pay off the debt.
Family Courts and Judges have the power to order what is fair and equitable, and can make decisions on how property is to be valued, divided and distributed. They can make these decisions even to the lament of Dodgers fans.

It is unlikely that the Dodgers will actually be sold because of the divorce—but not because the Court or the Judge lacks the power to order it. It was likely a serious warning from the Judge to the McCourts to stop their bickering and focus on what is truly important so that the issues can be resolved.

You can read the LA Times article here: Judge in McCourts’ divorce case talks of Dodgers Sale

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, July 16, 2010

Veteran Job Website

We just learned of a new site that may be of interest. The federal government has opened a new website concerning the employment of veterans with the Departments and agencies of the US government.

The direct link is: Link

Good Luck!

Veteran Care Givers

Congress has now passed legislation for wounded Iraq and Afghanistan veterans that would establish an unprecedented permanent program to support the caregivers of wounded warriors, improve health care for veterans in rural areas, help VA adapt to the needs of women veterans, and expand supportive services for homeless veterans. The President must sign the legislation. It is a step in the right direction.

Watchdog

Toxic Water at Camp Lejeune

We have dozens of Marine veterans ask each year about their exposure to toxic drinking water at Camp Lejeune. While the existence of the contaminated water is now well documented, the medical nexus to specific disabilities has not been accepted. Recently, VA recognized that ingestion of contaminated water could cause ratable disabilities. There are 2,044 pending legal claims by people who lived and worked at the Marine base from 1957 – 1987. The Corps is having people potentially exposed register in a database. To date, 160,000 have registered. This proves once again that you should never give up on your claim because sometimes the VA is really slow to get it right.

Article

Therapeutic Fishing

"Therapeutic Fishing" sounds like an excuse to get out of work and go fishing but it is more. There is a growing body of medical research and antidotal evidence that fishing is good therapy for veterans. The VA recognizes the recreational value of fishing and the therapy that results. It allows a veteran to de-stress and get away from the problems of the day. It promotes a national program called "ProjectHealingWaters.org". The Michigan Veteran Homes regularly have fishing rodeos for their members according to Brigadier General Carol Ann Fausone. The General is participating in "Tight Lines for Troops" this month in Manistee at a program sponsored by the Brain Injury Association of Michigan. BIAMI will also host Tips Up for Troops on June 12th. Legal Help for Veterans, PLLC have been a sponsor of this event since it began. If you want to read about BIAMI fishing programs for veterans, click below. Next time you go fishing tell them "the doctor ordered it!"


Article

Sleep Apnea On Rise

The number of veterans receiving disability benefits for a sleeping disorder has increased 61% in the past two years and now costs taxpayers more than $500 million per year, according to Veterans Affairs data. Legal Help for Veterans, PLLC has seen an increase in appeals for this disability. At present, there is not a good reason why 20% of veterans suffer from sleep apnea and only 5 % of the population. Could it be the respiratory exposures from service? To read a USA Today article on this topic click on the link below.

Watchdog

Rising Health Care Costs

Do you read articles about veteran and military matters and wonder why is this news? You know, like the VA system is broken. No kidding. Or the cost of military health care (and veteran health care) is on the rise. Is that really news? We deal with veterans and the VA everyday, so I guess it is not news to us but maybe it is to the general public. That is how I felt after reading this USA Today article.

USA Today Article

Right Idea - Wrong Approach

We recently handled a suicide case for a family of a Marine who came home from Iraq broken. The senseless suicide of a veteran demonstrates that the mental health care that is needed is just not readily available. The VA knows this and the military knows this. However, you can not just order that it stop. You have to provide the health care resources and support. Read this article where a General essentially ordered the troops to stop committing suicide. Let’s hope the base provides the other support necessary.

Watchdog

PTSD & Phonies

After a decade of helping veterans, I have to say that we don't see phonies who are trying to game the VA system. Although the critics of the VA often say there is rampant fraud, we see the legitimate vets who can't prove service connection because of poor record keeping by the DOD. Sure in a government system as big as VA there are going to be fraudulent claims. But to suggest that PTSD is an easy claim to fraudulently make seems over the top. There is a recent AP article that will cause a new round of hardships for legitimate claimants as people clamor that more must be done to stop the fraud.


Article

PTSD & Genes

PTSD is one of the toughest disabilities to prove to VA, we deal with veterans every day with this terrible condition. The researchers at the University of Michigan recently issued their findings, which supports a model for PTSD in which exposure to a traumatic event changes gene expression, which in turn, alters immune-system activity, leading to the disorder. So the traumatic event (stressor) causes a change in a veteran's genes and then alters a normal immune system. Maybe this type of research, from my university, will someday be used by VA to recognize this is a real disability that affects a veteran’s body at the most basic cell level. Read about the research below.

Article

Post 9/11 GI Bill

We are beginning to see veterans raise questions about the transferability of post-9/11 GI Bill benefits. This idea of transferability is one of the most requested benefit upgrades to DoD. Be careful, veterans cannot transfer post-9/11 GI Bill education benefits. The way the rules are interpreted only service members can transfer their GI Bill benefits. You need to do that before you leave the service. Check out this website for more facts about post-9/11 GI Bill transferability.

Post 9/11 GI Bill 20% Transferability

New PTSD Rules

It has been reported in the New York Times, VAWatchDog.com and NBC, that VA intends to issue new rules loosening the requirements for PTSD. VA is apparently evaluating essentially eliminating the requirement that veterans document specific events like bomb blasts, firefights or mortar attacks that might have caused PTSD. We know this as proving "a service stressor". This is particularly difficult for certain types of stressors that are not documented or reported. For example, sexual assault on women is not reported 75% of the time. Veteran groups assert that the current rules discriminate against tens of thousands of service members — many of them women — who did not serve in combat roles but, nevertheless, suffered traumatic experiences. The new rules, which we have not seen, reportedly say if a veteran can simply show that they served in a war zone and in a job consistent with the events that they say caused their conditions, that is sufficient. Sounds too good to be true. We know VA employees will need retraining not to just deny. How will VA define a "war zone"? How does that help military sexual trauma (MST) and assault victims? But we will keep you posted if the new rules get issued. If you have been denied in the past because of lack of stressor, it is time to reapply for benefits. You can read the New York Times article at the link below.

VA Is Easing Rules to Cover Stress Disorder

New AO Presumptions On Hold

Last October, the VA announced 3 new AO presumptions - ischemic heart disease, Parkinson's disease and B-Cell Leukemia. Sen. James Webb, D-Va., says he will use a Senate Veterans Affairs Committee hearing — rescheduled now for Sept. 23 — to have Secretary Shinseki explain his decision to compensate Vietnam veterans, and many surviving spouses, for three more ailments including heart disease.

VA projects that the decision will cost $13.4 billion in 2010 alone, as it will qualify a few hundred thousand more veterans for service-connected disability compensation.

Those veterans, it now appears, will have to wait at least a few more months before claims can be paid. And there is at least some doubt now they will be paid. That will depend on whether Webb and enough of his colleagues are dissatisfied with the science behind Shinseki’s decision. Webb has said that presumptions have expanded to include "common disease of aging." This action has frozen the interim regulation on these 3 new AO presumptions that were published in March 2010. A final rule is needed and that now can’t happen until the fall at the earliest.

More Navy and Coast Guard Vietnam Vets May Qualify for Aid

Veteran advocates are urging Navy and Coast Guard personnel who served in Vietnam to review an updated list of vessels that were exposed to the herbicide Agent Orange.

The Department of Veterans Affairs recently released the new list of vessels that operated in the rivers and deltas of Vietnam. Additions include all Coast Guard vessels with the hull designation WPB (patrol boat) and WHEC (high-endurance cutter).

Veterans whose military records confirm they served aboard one of these ships can have their VA benefits claims expedited, according to the Fleet Reserve Association, which represents enlisted members of the sea services. Agent Orange has been connected to certain kinds of cancer and other ailments.

To view the full list, visit Article

Family Medical Leave Act

In late 2009, the Labor Department issued final regulations to the Family Medical Leave Act (FMLA) to interpret the new military amendments. The expanded leave for military service members and their families constitutes the most significant change to FMLA in years. The expanded leave now allows for twenty-six weeks of leave for an injured service member and twelve weeks of exigency leave for military families. Helping family members be with an injured service member seems like the least we can do. It is certainly not too big an inconvenience on an employer for all that has been sacrificed by the service member’s family.

Facebook

For all our friends out there, we have a new Facebook page. Visit us at Facebook

Shortly we will have a link posted on our website to make the connection even easier!

Chief Roberts Startled

The US Supreme Court recently heard about how things operate in the VA world. Chief Justice Roberts was shocked when a government lawyer admitted the VA was wrong about 70% of the time. The discussion came up in a social security case where the Chief Justice learned the government was not substantially justified in the positions it asserted in 40% of social security cases and over 70% in veteran cases. Those of us who practice before the US Court of Appeals for Veterans Claims know that the VA is wrong closer to 90% of the time. Maybe now the Supreme Court will pay attention to the problems we all face in that veteran system. Read a recent article how Justice Roberts responded to the startling news.

Watchdog

Caregivers and Veterans Omnibus Health Services Act

On May 5, 2010, President Obama signed the Caregivers and Veterans Omnibus Health Services Act of 2010 into law. The new law helps to solidify America’s commitment and dedication to its troops, its veterans, and their families. It also expands the services available in certain areas of health care that have proven to need greater attention in recent years, including mental health care, women’s issues, caregiver concerns, and traumatic brain injuries.

The new law:
• Provides veterans’ caregivers with training, counseling, supportive services, and a living stipend. It also provides health care to family caregivers of injured veterans under the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA)
• Requires VA to train its mental health providers in the treatment of military sexual trauma
• Mandates that VA implement pilot programs to provide child care to women veterans and provide readjustment service specifically aimed towards women veterans.
• Requires VA to assess and report to Congress its evaluation of the barriers in providing health care to the 1.8 million women veterans currently receiving VA healthcare.
• Expands VA’s authority to provide incentives so that VA can recruit and retain quality health care providers
• Provides travel reimbursements for veterans receiving treatment at VA facilities
• Authorizes, in some instances, the care and treatment of veterans suffering from traumatic brain injuries at non-VA facilities.
• Establishes and increases eligibility for Iraq and Afghanistan service members, including National Guard and Reserve members, to receive readjustment counseling
• Requires VA to conduct a study on veteran suicides
• Emphasizes VA’s commitment to provide medical care for certain Vietnam-era veterans exposed to herbicide and Gulf War-era veterans who have insufficient medical evidence to establish a service-connected disability
• Eliminates copayments for veterans who are catastrophically disabled

AO Presumptions

When final rules come out, VA will add three new presumptive illnesses due to Agent Orange exposure - Parkinson's disease, ischemic heart disease and B-cell leukemias. Over the next two years, VA expects 200,000 new claims for these illnesses. If you have any of these illnesses, submit a claim to VA now. VA wants to "fast track" those claims with a private-public partnership and maybe new software. Many are worried these new claims will get to the front of the line and the 1,000,000 claim back log will only get worse.

Read more at Agent Orange

Americans Are Patriotic

The USA Today reports that a third of Americans are extremely patriotic. I am not surprised, are you? This is a great country and we know it. There are problems but we have the freedoms and opportunities that most people in the world only dream of. I hear from over 300 veterans a month by email. They maybe frustrated about the government. But they are still patriotic. They still view their service as important. Enjoy the 4th of July holiday and remember to show others you are an extremely proud American. Read the USA Today poll by clicking on this link.

USA Poll

Jobs For Veterans

Everyone has been affected by the current state of the economy. Jobs have been lost and foreclosures loom. But, there is good news on the horizon. The U.S. government has announced there will be thousands of temporary jobs available as a result of the upcoming 2010 census. Positions include census takers, census crew leaders, census crew leader assistants, recruiting assistants, and census clerks.

Applicants must pass an employment test before being offered a position. Great news for our country’s veteran population! Veterans receive a 5 point preference on the examination and veterans with a service-connected disability/injury receive a 10 point preference!

For more information and to apply for a position call 1-866-861-2010 or visit www.2010censusjobs.gov.

Thursday, July 15, 2010

Real Estate Program

The City of Westland held a program for developers, brokers and investors about government incentives that may be available to those pursuing projects in the City. The City wants to help restart development and is encouraging a cooperative approach. Paul Bohn and Andrea Montbriand were speakers discussing available government incentives.

Westland Serves Up Eggs Opportunity At Breakfast

Should You Draft Your Own Will?

A recent article in US News & World Report states that there is an increase of people handling their own estate planning by drafting their own Wills. There are a number of online resources to do this, and some people assume that by doing this online themselves, they will save themselves hundreds or thousands of dollars?
Is this actually a good, sound practice? Should people, with little or no knowledge of the law, draft their own Wills?

There are numerous problems that can arise when one takes on the task of drafting their own Will. First, each state’s law is different, and there are different legal terms and requirements for an authentic Will in each state. These requirements are not easily learned online. Second, if a mistake is made, or if a person drafts a Will without understanding the full effect of its language, there will be thousands of dollars spent fixing it afterwards. Third, and worse, you may draft your own Will and it may legally distribute your property exactly opposite of how you intended.

We have seen numerous tragic cases where people have either drafted Wills themselves, or used online tools to draft them, and in the end, the Wills have been declared invalid, or worse yet, they have transferred assets contrary to the person’s true intention.

Don’t take the risk of drafting your own Estate plan. At Fausone Bohn, we have attorneys who will provide a free consultation, and discuss a range of choices, options, and plans. Our estate planning is often conducted on a flat-fee basis, and the rates are affordable.

Let an attorney, who is skilled in the law, help you fully think through and understand what choices you have, and let them help you pick the best options for you. It is worth the peace of mind that you will receive when you know that your estate plan is drafted exactly how you want it.

You can read the US News & World Report article here: The Dangers of DIY Estate Planning

If you are interested in learning more about Wills, Powers of Attorney, Trusts, Probate or Patient Advocate Designations, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Lessons From Gary Coleman's Estate

Who has the authority to make funeral and burial arrangements for the recently deceased Gary Coleman? His parents or his ex-wife who had medical power of attorney?

Neither.

A 1999 Will was recently found, and in this Will, Gary Coleman nominated his former manager, Dion Mail, as the Executor of his probate estate, which means that he, as executor, also has the authority to make funeral and burial arrangements.

People often think that if they have a power of attorney in place, or a medical power of attorney, then that person is the one who is responsible for making burial and funeral arrangements. Some people even believe that the spouse or parents have the right to do so in any circumstances. However, it is the Executor, or the Personal Representative of the Estate that has the authority to make the funeral and burial arrangements. The Executor or Personal Representative is nominated in a person’s Will.

It is extremely important to make sure that your Will is up to date, and nominates the right person for the position of Executor or Personal Representative. It is advisable to frequently review your Will to make sure that you keep your nominations and wishes up to date.

We will never know if Gary Coleman still intended to make his former manager the person responsible for making the funeral and burial arrangements. What we don know is that he nominated him to do just that in a Will drafted in 1999. With no other revisions to that Will or new Wills, that is the decision that stands, and that is the decision the Court’s will enforce.

If you are interested in learning more about probate, or want to discuss drafting a Will or Trust, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Gary Coleman Funeral Fight

New York Considers "No-Fault Divorce"

A recent article in the New York Times reflects that New York is considering legislation to end the fault-based divorce system, and move to a system of “No-Fault Divorce.” What exactly does that mean?

New York is one of the states that requires “fault” to be proven in order for a divorce to be granted. This means essentially that the person filing for divorce must state specifically the reason they are seeking a divorce, and the allowable reasons are confined to adultery, cruelty, imprisonment or abandonment. The spouse filing for divorce must prove one of those reasons to the Court, or the divorce will not be granted.

Michigan has been a “No-Fault Divorce” state since 1971, when the legislature abolished the fault system for obtaining a divorce. In Michigan, the person filing for a divorce does not have to state a reason for the divorce, nor do they have to prove adultery, cruelty, imprisonment or abandonment to the Court in order to get divorced.

Essentially, in Michigan, this means that if a person wants to get divorced, the divorce will happen unless both people decide to reconcile.

Does this mean that “fault” is never discussed? Not at all. The underlying reasons leading up to the divorce, particularly “fault,” become relevant in issues of property division, spousal support (alimony), custody and parenting time. However, “fault”, in Michigan, becomes more a cursory issue, and not one that has to be proven in order to get divorced in the first place.

You can read the New York Times article here: Change to Divorce Law Could Recall a TV Quiz Show: ‘To Tell the Truth’

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.

More Married Women Are Bringing Home the Bacon

The New York Times and USA Today just reported that men are now marrying wealthier women. According to the Pew Research Center, the last 40 years have resulted in more women graduating with college degrees and an increase in women’s earnings by 44 %. What does this mean for couples either anticipating marriage or married couples contemplating divorces?

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.

For married couples anticipating divorce, the earning capacity of both people is considered in issues of child support and spousal support. With the changes in women’s income and education over the last 40 years, spousal support (formerly called alimony) is awarded very differently. Factors considered in spousal support awards include educational level, ability to work and earning capacity. Factors for child support include the earnings of both parents. Long-term and permanent spousal support is almost the exception today, and most awards are given only when the income discrepancy between the spouses is somewhat significant. Child support awards likewise are affected if both parents are working.

You can read the NY Times article here: More Men Marrying Wealthier Women

You can read the USA Today article here: Study: Marriage Benefits Men Economically

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.

Michigan Launches New Pilot Program: Lawyer-Free Divorces

The Michigan Supreme Court has authorized the launch of a new pilot program in Clinton and Gratiot County for an Informal Divorce proceeding for couples divorcing who cannot afford attorneys.

Judge Michelle Rick of Clinton County Circuit Court obtained approval for the pilot program, and will launch this new program for 3 years in both Clinton and Gratiot County. The program was developed in response to a growing number of individuals who were filing for divorce without attorneys, had very simple or uncomplicated issues to resolve in their divorce, and also significantly lacked funds to hire an attorney because they had no or low income. The majority of these couples did not own any property together, they did not have any pensions or retirement accounts, nor was there any domestic violence in their relationship. The majority of these couples had children, debt, and they completely lacked the financial means to hire an attorney because they were unemployed or at the poverty level.

The Informal Divorce pilot program will be an option for couples in Clinton and Gratiot County as long as they meet the criteria, which means that they have no income or very low income, they do not have any property together, they have minor children and there is no domestic violence. The couple getting divorced can elect to proceed under this new option, which includes meeting personally with the Judge in order to work out the issues in the divorce. The parties can opt out of this program at any time, or can be removed from the program if the program does not benefit their case.

The pilot program for Lawyer-Free Divorces was implemented to address the extreme financial distress of some couples filing for divorce, so that those couples are not lost in the system because they cannot afford legal counsel. The pilot program clearly recognizes the importance of having good legal counsel while going through a divorce, especially with minor children.

The Informal Divorce pilot program is anticipated to begin in Gratiot and Clinton County around September 1, 2010.

You can read the Detroit Free Press article here: 2 Michigan Counties will Test Informal Divorces

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 Michael Douglas Lesson About Marital Property

Michael Douglas and his ex-wife Diandra Douglas divorced in 2000, but that was not the end of their saga. Diandra Douglas recently sued Michael Douglas in a New York court, alleging that her divorce agreement entitles her to profits & residuals from his new movie: “Wall Street: Money Never Sleeps.”

Diandra Douglas contends that the divorce agreement entitles her to one-half of any profits, royalties & residuals from any movies he did during their marriage. She contends that the new movie is a spin-off from the original “Wall Street” movie, made famous by Michael Douglas’s character, Gordon Gekko: “Greed is Good.”

Michael Douglas, on the other hand, contends that she is not entitled to anything from this new venture and that it is not marital property subject to the 50/50 split.

This particular dispute is a good example of why a person needs a skilled attorney while going through a divorce. In Michigan, all property and income earned during the marriage is considered to be marital property, subject to a 50/50 split. If certain income or property is marital, whether it is received during the marriage or after the divorce, it is to be shared equally.

A skilled divorce attorney will be careful in how marital property is defined, and should counsel their client on what type of possibilities may exist that would entitle that person to a share of profits or distributions even after the marriage, provided those profits and distributions resulted from marital property.

Every situation is unique and different, and in some cases, there will be a clear and defined ending point for those types of profit distributions. However, in other cases, such as the Douglas’ case, the line is not so clear or defined.

You can read the Boston Herald article here:
Michael Douglas Ex Wants Wall Street Payday

If you are interested in learning more about separate maintenance, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

The Legal Separation of John & Elizabeth Edwards

A recent article on CBS News discussed the legal separation of John & Elizabeth Edwards. While they do not plan on divorcing in the near future, they are separated.

One common question that is often asked is whether or not Michigan has what is called a “legal separation,” allowing a married couple to legally separate, but still remain married.

The simple answer is yes, but the procedure is not so simple. Michigan has a legal action entitled “Separate Maintenance.” An action for “Separate Maintenance” is filed with the court just as a Divorce action is filed. The process for a Separate Maintenance action is identical to that of a Divorce. In a Separate Maintenance action, just as in a Divorce action, the couple must decide on how they are going to distribute their assets, share their debt, determine child support & spousal support, and also address how assets are purchased and debt is acquired in the future.

At the end of a Separate Maintenance action, a Judgment of Separate Maintenance is entered with the Court, and the couple is officially legally separated, meaning that all property and debt has been divided, but the party is still legally married.

Why would a couple proceed with a Separate Maintenance action instead of a Divorce? The most common reasons are religious and medical. Some people opt for a Separate Maintenance action because divorce is frowned upon or prohibited in their religion. Some people truly need the medical insurance of their spouse and cannot obtain insurance on their own. For these people, they essentially become “divorced” but still remain married.

What happens if you go through the entire Separate Maintenance action and then decide later that you want to become divorced? You have to file a Divorce action with the court and start from the beginning again.

Separate Maintenance actions are not very common in Michigan, but it is the only legal avenue in Michigan that allows a couple to split all assets, share all debt, live independently, but still remain married. It is the only way for a couple to become legally separated.

You can read the CBS News article here:
Elizabeth Edwards: No Divorce from John Planned

If you are interested in learning more about separate maintenance, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Divorcing? Stay Away from Facebook

Several reasons to stay away Facebook during a divorce were made clear in a recent AP news article titled “Divorce Lawyers: Facebook tops in online evidence.”

Divorce lawyers are quickly becoming fluent in Facebook, MySpace and Twitter in order to find out more information about the other spouse during a divorce.

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.

If you are going through a divorce, the safest solution is to deactivate your Facebook page. This will take your 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.

You can read the AP/Yahoo article here: Facebook Tops in Online Evidence

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.

Urban Farming

During the 1980s & 1990s, environmental professionals worked on urban industrial contamination. In the 2000s, with real estate development roaring, we worked on greenfield developments. Those sites had minor contamination from historical agricultural practices. It now looks like we have come full circle as Detroit explores urban farming. The new issues will be old issues about the contamination in urban soil and its uptake in certain crops. The Detroit Free Press recently wrote an article on this topic.

Grow Protections Against Lead In Soil

Solid Waste Disposal Decreasing in Michigan

The MDEQ recently announced that for fiscal year 2009 Michigan residents and businesses decreased their total solid waste volume by 13%. Waste imported from other states and Canada also reportedly decreased by roughly 24%. Good news to the extent that this significant reduction is attributable to an increased focus on sustainability. Every silver lining has a host rain cloud though, and the MDEQ was quick to point out that the $0.21 per ton fee on solid waste disposed in Michigan landfills is what funds its solid waste program and the continued decline in solid waste disposal means there are fewer dollars to fund that program. The MDEQ stated that this has “serious implications for Michigan’s ability to continue the current level of permitting, inspections and oversight of solid waste management in the state.” The press release went on to say that Michigan’s disposal fee is the lowest in the Great Lakes region. Translation: you can expect that the MDEQ will be asking for a fee increase.

This past year our client, the City of Westland, joined the effort to reduce solid waste disposal volumes. During the summer of 2009 the City implemented a curbside recycling program for all residential units, and as a result has seen its landfill waste drop by about 25% in the last quarter of 2009. The City is starting to see both cost savings and new revenues, and Mayor William Wild is thrilled with the outcome of the program to date. Our firm had the privilege of negotiating the contracts with each of the recycling program vendors.

If you have environmental questions, feel free to contact Andrea Montbriand at andrea@fb-firm.com.

Asbestos

Asbestos is a naturally occurring mineral. In the 1900s, asbestos was something of a miracle product. Johns Mansville used it in a variety of applications including ceiling tiles, floor tiles, pipe wrap and spray on fireproofing. Many businesses had asbestos in their buildings because it was a state-of-the-art product that fireproofed roofs and floors. It was also widely used for heat installation and a variety of other purposes. Ultimately, the United States EPA issued a ban and a phase-out rule for asbestos. During most of the 1980s, we worked with clients removing asbestos from buildings or addressing asbestos concerns during demolition. Asbestos litigation remains the most expensive mass tort litigation in U.S. history with more than 6,000 defendants and over 600,000 claimants.

For these reasons, I was surprised to read an article in the Globe and Mail this weekend about Canada’s exporting of asbestos to poorer nations around the world. While Canada won’t use asbestos or allow the use of asbestos in its own country, it represents 11% of Quebec’s exports to India. Apparently, half of India’s asbestos comes from Quebec. You may want to follow this link to see how exporting asbestos is Canada’s dirty little game:

Playing a Dirty Game Exporting Asbestos

Slow Down in a Recession

As prosecutors and defense lawyers, we are involved in speeding infractions on a daily basis. We often hear from drivers that "I thought that there was a speed cushion and he would not ticket me." The general rule was 5-10 mph over the speed limit (the cushion) would not result in a ticket. But there is now research that during recessions that cushion erodes. The police issue more tickets and even at lower speeds. You may want to read this recent USA Today article. Slow down and if you get ticketed give us a call.


Speeding Cushion May Dwindle Due To Recession

Sam Riddle

Sam Riddle of Detroit political consulting fame has been much in the news of late for federal charges that resulted in a mistrial. He also has a state domestic violence matter filled against him by the Wayne County Prosecutor's office. He recently engaged Mark Mandell to handle this matter. You can read the newspaper announcement of that step below.

Detroit News Article

Riddle Finally Reveals Name

Riddle Hires New Lawyer for Domestic Case

Right to Trial

While over 90% of cases (criminal and civil) settle without a trial, there are times you just have to be willing to protect yourself and go to trial.

At that point you need a trial attorney ready to "lace 'em up" and get in the ring. The awesome power of the government can be crushing to a defendant. But you have to be willing to trust in the jury system which is the last defense to the prosecutor from "piling on." One of our recent cases involving Sam Riddle is in the news and made this point clear.

See Judge Sends Sam Riddle Back To Jail

Michigan Medical Marijuana: A Growing Industry

Many voters approved the new medical marijuana law because they wanted to offer help to individuals who suffer from terminal and debilitating diseases. They believed that marijuana would be tightly regulated; prescribed by family doctors, and dispensed through pharmacies. Unfortunately, reality is far different.

Since Michigan voters approved the use of medical marijuana, medical clinics, law offices, hydroponic stores, and schools have begun to advertise their services and created a “growing” industry. The state of Michigan has approved tens of thousands of registration cards to “patients” and “caregivers” and local communities are beginning to decide whether to approve marijuana businesses in homes, offices, and strip malls or ban them because of crime associated with them. To learn more about the Michigan Medical Marijuana Act and its impact on communities, click on the link below to read my article.

Michigan Medical Marijuana: Truth and Fiction

Wednesday, July 14, 2010

No Texting While Driving in Michigan-effective 7/1/10

Michigan has just enacted its first law against texting while driving. Effective Thursday, July 1, 2010, it is now illegal for a driver of a vehicle to read, type or send a text message from a mobile device situated in the driver’s hand or lap.
This is the first state-wide legislation enacted, and it supersedes any local laws that were previously enacted.

Effective July 1, 2010, it will be a civil infraction to text and drive, and a first offense carries a $100.00 fine. A second and all other subsequent offenses carry a $200.00 fine.

Click here to read the Detroit Free Press story on the new law: Mobile Texting Ban Nearly Here

Early Facilitation in Commercial Lawsuits

Facilitation is a type of alternative dispute resolution that utilizes an impartial third person selected by the parties to assist each side in reaching a resolution to their dispute. Unlike an arbitrator or a judge, a facilitator does not make a decision regarding the outcome of the dispute nor does he or she rule on evidence or testimony. Essentially, the purpose of facilitation is for both parties to arrive at a mutually agreeable dollar value or alternative solution to resolve the case. It works when both parties, and their counsel, want to achieve a settlement.

Small Business Tastes Good

It is almost a slogan that small businesses are the backbone of the economy. Most businesses start with a good idea and then the entrepreneurs put time, energy, and money into the company. We help business owners build their business all the time. Some businesses are tastier than others. One of particular pride is Randy's Granola. By the way, my daughter is the owner of the company so I am bias, but you may like to read this recent article.


Randy S. Granola Has A Healthy Reception In Detroit

Finally Respect

Small businesses do not get enough respect. Those companies between 10 - 100 employees and over $1,000,000 in revenue are sometimes called "second stage" companies. It is these types of businesses that are the economic engine of the State. But all the tax incentives and loan assistance goes to big companies or fancy high tech startups. Finally, someone is advocating more attention be given to these second state companies. The concept is "Economic Gardening". Helping cultivate the small business rather than going out "Hunting" for a trophy company to move into your city or state. The article below hits the bulls eye.

A New Tactic For Creating Jobs

Final Payment Checks - Watch Out

Have you had a customer dispute an invoice and then tender a check with the words "final payment" or "payment in full" written conspicuously on the check or writes a letter stating same?

In 2006, Michigan adopted most of the Uniform Commercial Code ("UCC"), Article III of which deals with negotiable instruments - most commonly checks. Section 3311 in particular addresses the above situation. That provision states that a debtor who proves that: (1) he, in good faith, tendered payment as full satisfaction of a claim; (2) the claim was subject to a bona fide dispute; and (3) the creditor obtained payment (i.e., cashed the check), the creditor's claim is discharged if the check or a written document sent with the check contained a "conspicuous statement" that the check was intended as payment in full. Even if the notation was not present, if a creditor knows that the check was presented as payment in full, the claim will still be discharged. The payment tendered as payment in full, and the subsequent acceptance by the creditor (by cashing the check, etc.) constitutes an accord and satisfaction, an affirmative defense to a subsequent collections suit.

Michigan case law supports the idea of such a final payment check. Many factors can negate the required good faith element and each case is specific, however, it is important to acknowledge instruments that are received with the notation "payment in full" or "final payment" and handle them appropriately.

Andrea Montbriand at amontbriand@fb-firm.com.

Body Art in the Work Place

An employment policy dealing with tattoos, piercings and other so-called "body art" in the work place is becoming more common.

It was recently reported that 42% of managers have said their opinion of someone would be lowered by that person's visible body art. The 81% of responders in a poll believe that piercings in places other than the ears, were unprofessional. Indeed, 76% of respondents in that poll believed visible tattoos were unprofessional.

We recently developed a dress code that included a body art policy. As we did research, one unique policy stood out. The U.S. Marine Corps had already adopted body art policies.
See
Tattoo (Body Art) Policy

Business of Pot

One business that is booming and will be getting a lot of news coverage is growing medical marijuana. Michigan's statute allowing the growing is causing strain on police departments and municipalities. There are legitimate concerns about growers causing safety issues to neighbors, supporting the underground economy, and the lack of medical oversite of growers and caregivers. The Detroit Free Press recently devoted a front page article to some of these problems.

Marijuana Law Sows Confusion

Tuesday, July 13, 2010

Asset Based Lending

Every small and medium business is experiencing a financial credit crisis at the moment. One of the first steps out of a credit lock down will be asset based lending. This type of lending was once considered a last resort finance option, but it has become popular because companies do not have access to more traditional capital resources. As the term explains, the lender is focused on the collateral not the credit worthiness of the borrower. This type of lending is typically used for equipment inventory, accounts receivable and other liquid assets. We all know the draw backs of high interest rates and the ability of lenders to seize the assets.

You may need to look at this type of lending but remember the lessons that you have learned over the last few years. Many of your competitors have gone out because of excess borrowing. You also want to remember that personal guarantees have a real bite to them. They should not involve your spouse, and be prudent to whom you give those guarantees. Check out a recent article in the Wall Street Journal, which discusses the pros and cons of asset based lending and its drawing popularity.

Asset Based Lending

Keith Madden Announcement

Keith graduated from the University of Michigan Dearborn in 1981. He was an air traffic controller prior to law school. Keith graduated first in his class from Wayne State University Law School in 1987.

Keith spent 13 years with Angelo Plakas & Associates before becoming the City of Westland's Director of Personnel and Operations for 12 years. His practice will focus on municipal law, employment law, and research and writing to assist the firm's litigation practice.

Keith can be reached at kmadden@fb-firm.com or (248) 380-0000, ext. 245.

Saturday, July 10, 2010

Al & Tipper Gore and the Silver Divorce

A recent article in Newsweek reflected that the recent divorce announcement by Al & Tipper Gore is actually reflective of the marriage and divorce trends, and that there is a rise in what is called the “Silver Divorce,” which is a divorce between couples who have spent at least 25 married years together.

There are some significant issues that become immediately important in “Silver Divorces” when the couple has been married for a significant amount of time. This includes issues of retirement, pensions, spousal support, and even social security.
Michigan law dictates that all marital assets are to be split equally when a couple divorces. This means that if one of the spouses has an IRA, 401(k), or pension, that must be valued (determine what the marital portion is) and that marital portion must be shared equally.

Also, in long-term marriages, the courts will often grant a request of spousal support (alimony). The length of time and the amount will vary from situation to situation—but it is an important consideration and in many cases, absolutely necessary for one of the spouses.

Lastly, it is important that the issue of social security is addressed. If you have been married 10 years, then even after a divorce, one spouse may be able to collect social security based upon the other spouse’s work record. This is something that should be definitely be discussed with an attorney.

Whether or not there is a trend toward more “Silver Divorces,” what is crystal clear is that if you have been married that long, you need to be well equipped with a skilled divorce lawyer so that you are fully aware of what your rights are, what options exist for you, and how to prepare for your financial security moving forward.

You can read the Newsweek article here: The Rise of the ‘Silver Divorce’

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.