Saturday, November 23, 2013

Divorce involving a Military Member -- Dividing the Military Pension

            Any lawyer who has taken on a divorce client in Michigan knows the statutory language and other  statutory requirements from the start of the action through the Judgment of Divorce.  But, many lawyers are not well-versed in the specific requirements and language necessary to effect an attachment to a military spouse's "accounts" or pension(s).  Here are just a few gotchas that can trip up any attempt to divide a military pension through a court order:

            - A military pension is not a pension in regards to ERISA and is not affected by a QDRO.  When submitting the court order and other documentation of the judgment to the military, you do NOT use a QDRO.  Furthermore, if the member has more than one pension or Savings Plan, you must specifically identify (with the proper account names) which accounts are to be effected.

            - Dividing a military pension must be done with specific language so that the military finance department can determine how exactly to pay out on the court order.   The court order dividing retirement pay may be rejected (and frequently are rejected) for failure to provide this specific guidance.

            - No "offsets" are allowed to the pension division.  If the amount of the former spouse’s award is expressed as a dollar amount or percentage of  disposable  retired  pay  less  the  amount  of  some  other  obligation  (e.g.,  Survivor Benefit Plan premium or the former spouse’s child support obligation), the entire award is unenforceable.

            There are also myriad issues regarding the unvested retirement plan (military retirement is not vested until the member has 20 years of service (20 "good years" for the reserve components). 

            -What if the service member never gets to 20 years of service, and therefore has no retirement?  What if the member takes a "buy out" to separate from the military (as has been done in past "drawdowns") and in turn also forfeits his retirement pension? 

            -What if the servicemember dies before the ex-spouse?  Under the military pension, the pension is terminated for that member AND any ex-spouse receiving part of the pension, unless a specific action is taken from a court order that specifically addresses that possibility prior to the member's death.
            These are just a few of the landmines one must navigate to properly execute a split of marital assets when there is a military pension involved

Wednesday, November 20, 2013

Do our laws sometimes go too far, too far-reaching?

Sec. 38-41. - Prohibited offenses.
No person shall:
(15)  Possess a laser pointing device unless that person is at least 18 years of age. A person under the age of 18 shall not be in violation of this section if the possession of a laser pointing device is necessary for his employment, trade or occupation.

Friday, November 15, 2013


"When love collides with Money"

            With many people getting married later in life, a couple sometimes come to the marriage with some substantial assets earned before that marriage.   A way to maintain those assets as "personal", versus "marital" is to have an attorney draft up a prenuptial agreement.  Another good reason to consider a prenup is to set financial and property understandings up front, before you say "I do." However, both parties to the marriage must agree to have such an agreement, and the lawyer's office is not the place for one party to spring it on the other party!

            Prenuptial agreements (aka antenuptial agreements) are legal in Michigan.  An antenuptial agreement is a contract entered into before marriage by which the parties can vary or relinquish marital rights.  The agreement must be in writing, must have been entered voluntarily after full disclosure by both parties (i.e. their assets), and must be fair when executed. One common argument raised when a marriage is dissolving is that facts and circumstances have changed since the agreement was executed that would make its enforcement unfair and unreasonable.  But, passage of time and the length of marriage does not by itself make the agreement unreasonable or necessarily unfair.

            Twenty years ago, prenuptial agreements were things that only the rich and famous had drawn up.   Now, partners coming to a marriage tend to be more sophisticated in terms of their finances, and realize the protections that a prenup can provide.  This is especially true if either the husband or wife comes to the marriage with an inheritance or real estate -- for instance, a family vacation home.

            If you are contemplating marriage, and want to protect your assets earned or inherited by you before you start your marriage, a prenuptial agreement may be a good way to protect your assets.

Thursday, November 14, 2013

Stealing contents of an Automobile, Misdemeanor or Felony?

A Quirk of Michigan Criminal Law:   Did you know that under Michigan law, stealing or unlawfully removing property from any motor vehicle can either be a misdemeanor, or a FELONY, depending on either the value of what was taken OR what was taken.  Michigan Compiled Law (MCL) 750.356a(2), makes it a misdemeanor to enter or break into a motor vehicle and “steal or unlawfully remove property” with a value that is less than $200.00.  However, under MCL 750.356a(1), it is a felony to commit a larceny “by stealing or unlawfully removing or taking any wheel, tire, air bag, catalytic converter, radio, stereo, clock, telephone, computer, or other electronic device in or on any motor vehicle . . .  So if you steal a $20 umbrella from a car -- it is a misdemeanor, but if you steal a $20 alarm clock it could be a felony!  It would ultimately come down to what charges the Prosecutor levies against you

Wednesday, November 13, 2013

Beware of Joint and Several Liability in Residential Leases

I've sat through numerous landlord/tenant disputes in the District Courts. One of the least understood and the most contentious issue in rent disputes is with the Defendants and the concept of Joint and Several Liability. I've also dealt with these clauses in my son's college apartment leases.

Joint and Several Liability is a legal principal where any one member of a group can be liable for the actions or inactions (obligations) of any other member of that group. This liability can be established by law, or more commonly, by contract.

It is frequent in a landlord-tenant relationship that the landlord's lease will have a Joint and Several Liability clause in that lease, if the lease is for more than one tenant. By signing that lease you have contractually obligated yourself to that lease. In doing so, the Joint and Several Liability clause will typically make you liable not only for your share of the rent payment, but also the rent due from the other tenants if they fail to pay.

In the typical scenario, one or more tenants have moved out without making contractual arrangements with the landlord. In doing so, they left you (and any others remaining) liable for the absent tenant's rent. It doesn't sound fair--all tenants signed the lease agreeing to pay their share of the rent, why should YOU now have to pay their rent after they skipped out?

This question can best be answered by looking at the Landlord's perspective. If the Landlord had to chase down every tenant in a multi-tenant lease to get his rent, he may very well not rent to multiple parties in the future. Furthermore, it is the Landlord who assumes the risk of renting to the typically unknown parties. In Michigan, the law allows him to mitigate his risk by allowing the landlord to include a Joint and Several Liability clause in your lease agreement.

I've watched a Defendant in court who was the only one being sued (or Plaintiff tried to find the other tenants to sue them, but couldn't). Most defendants do not understand how they are being sued for thousands of dollars in back rent due from other tenants on the lease. The same applies if the lease holds all tenants equally (Joint and Severally) liable for any property damage. The answer is that they contractually agreed to do so by signing the rental agreement that contained a joint and several liability clause.

The little bit of good news in regards to Defendants' rights is that the Defendant being sued has the right of contribution by the other tenants. This means that the Defendant can legally demand that the other tenants pay him for their share of the rent that the Defendant paid in their behalf. However, in reality, the Defendant left holding the bag after the other tenants have moved out may have a difficult time finding and collecting from the other former tenants.