Attorney Fees

Are my attorney fees recoverable in my divorce?  The Michigan Court of Appeals recently issued an unpublished decision answering this question in the case of Cox v Cox; Court of Appeals number 338642 and 339950.

Attorney fees are not ordinally recoverable unless a statute, court rule, or common law exception provides to the contrary.  See Dessart v Burak, 470 Mich 37, 42; 678 NW2d 616 (2004).  In divorce matters, attorney fees are authorized by court rule and by statute.  The party requesting the attorney fees has the burden of showing facts sufficient to justify the award.  Michigan Court Rule 3.206 (C) provides as follows:

  1. A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post judgment proceeding.
  2. A party who requested attorney fees and expenses must allege facts sufficient to show that:
    1. The party is unable to bear the expense of the action, and that the other party is able to pay, or
    2. The attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

Typically, this rule has been interpreted to require an award of attorney fees to the extent necessary to enable a party to prosecute or defend a suit. A party sufficiently demonstrates an inability to pay attorney fees when that party’s yearly income is less than the amount owed in attorney fees. Additionally, with respect to a party’s ability to prosecute or defend a divorce action, a party may not be required to invade her assets to satisfy attorney fees when she is relying on the same assets for her support.  Maake v Maake, 200 Mich Appp 184, 189; 503 NW2d 664 (1993).

Episode 12 – Parental Alienation

Generation X

We’ve all heard about Baby Boomers and Millennials, but what about “Generation X?”

Generation X was born between the mid-1960s-1980s. They grew up with John Hughes movies in the background: Pretty in Pink, Sixteen Candles, Ferris Bueller’s Day Off, and The Breakfast Club, and asked themselves if they were a brain, athlete, basket case, princess, or criminal.

So, why do we need to start talking about Generation X now? That’s because out of the three larger generations today (Boomers, Gen X, and Millennials), Gen X is the one least prepared for retirement. Gen X is becoming more and more responsible for their own children and aging parents, both emotionally and financially. With this growing responsibility, Gen X is not planning for their own long-term goals and eventual retirement.

Finding a good financial advisor is a great first start. Someone who will work with you toward your goals, whether that’s retiring at age 60 or being able to plan for long-term nursing care. Second, start thinking of how you are going to plan for the unexpected. Whether that is through an estate plan or by other means, Gen X needs to start planning for the “what if’s” of the world. Remember, you don’t need to be a millionaire to have an estate plan, you just need to get started.

Judge Bias

The Judge presiding over my divorce case does not seem to like me and is always ruling against me, can I get a different judge?

In Michigan, the right to due process includes the right to have an unbiased and impartial decision maker; see Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012). The Court, however, presumes that the trial court was unbiased “and the party asserting otherwise has the heavy burden of overcoming the presumption”; see also Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996).

A judge may be subject to disqualification if, in relevant part, the judge is biased or prejudiced for or against a party or an attorney; see MCR 2.003 (C)(1)(a).  In such cases, the party claiming bias must show an actual bias that is both personal and extrajudicial. An unfavorable disposition that springs from the events occurring during the litigation can amount to bias if they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Not all favorable or unfavorable dispositions or opinions amount to bias or prejudice; the terms connote a favorable or unfavorable disposition or opinion that is wrongful or inappropriate. A judge who forms an opinion or disposition through knowledge properly and necessarily acquired in the course of the proceedings is not thereby recusable for bias or prejudice.  A judge’s adverse rulings and comments do not by themselves establish bias or prejudice.

End of Year Giving

During the holiday season, most of us tend to get caught up in finding the perfect gifts for our friends and family. While showering our loved ones with presents is great, this is a perfect time of year to start thinking of how you can help local and national organizations near you.

What is your budget?

Is this your first year giving to a charity, or are you a seasoned veteran? No matter what you can make sure a charity you believe in receives a donation this year. First, you need to determine what you can afford to give. Make sure you’re leaving a donation that works for your budget, you want to make sure you’re still able to pay for all of your day-to-day expenses.

You also want to make sure what you’re leaving in the donation works for the charity. If it’s a smaller donation, maybe look to a smaller, more local organization, it might go further at a smaller organization. No matter how much you plan on donating this year, remember that any dollar amount makes a difference to an organization.

What are you passionate about?

Maybe you want to help support the arts, health and medicine, or STEM programs for schools in your state, you can find a charity that shares your passion. However, you should do your research. Find an organization whose mission statement and goals that fit with your own.

Do you have an estate plan?

Remember, that with a proper estate plan you can set up specific donations to organizations – whether that is a specific dollar amount or a percentage of your net worth. You can make sure you are leaving funds to organizations you are passionate about, in addition to your yearly donations.

Mary K. Hilger

Cheating Spouse

I think that my wife is having an affair can I track her vehicle and/or cell phone?

Answer: It depends:

Private citizens are allowed to use GPS tracking devices or software only on cars they own or co-own.

If you do not own the vehicle or co-owned the vehicle only Michigan police officer’s, bondsman, and private investigators are exempt from the state law banning individuals from placing GPS devices on cars, they do not own or co-own.

For cell phones, the same general theory applies, the cell phone plan must be in the individual’s name or have both spouses’ names on the account. You may also be able to track another phone through Find My iPhone if you have the iPhone identification and access to the account.

A divorce outside of Michigan made national headlines when the husband used in illegal GPS tracking device on his wife’s car. Using the device, he tracked her movements 99 times during a six-month period. As a result, he was eventually sentenced to eight months in jail on charges of felony stalking.

Please contact Thacker Sleight PC in the event that you are seeking to utilize GPS tracking devices. The unauthorized use of tracking devices can result in criminal charges.