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Dower Rights in Real Property

By definition, a dower is the portion of a deceased husband’s real property allowed to his widow for her lifetime. Traditionally, dower rights were a way by which a husband or his family could support a wife and children in the event that she should become a widow.

Today, most states in the United States have abolished dower rights, but a handful of states still recognize a widow’s dower rights including Michigan. Under state law, dower only attaches to real property, not personal property. So, for example, if a husband owns real property, dower rights for his wife will attach at the moment of marriage. However, the same is not true for property owned by a wife as her husband does not have any legal dower interest to that property. This is why if a husband wishes to sell or transfer this property, his wife might also have to sign the transfer document.

In certain instances, as wife’s dower interests can be barred by a voluntary conveyance or by executing a prenuptial agreement.

It is important to seek the advice of legal counsel when dealing with property issues, including dower rights. The attorney will need to determine exactly who owns the property and by what legal mechanism the property is owned. In making this determination, you might be asked to present real property documents, including any deeds, and other formal written agreements for the attorney to review. Please contact Sumner & Associates to get started today!

Parental Responsibility

“Every child has the right to a parent-child relationship with both parents”

If the mother is married, either when she becomes pregnant or the child is born, her husband is considered to be the father (unless a court has determined otherwise).

But what if the mother is not married?

If the mother is not married, either when she became pregnant or when the child is born, paternity can be established either by a voluntary acknowledgement or a by a court order.

Voluntary Acknowledgment

At the hospital, a father can voluntarily acknowledge paternity when the child is born. His name can also be added to the birth certificate right at the hospital.

For reasons such as incarceration or military service, the father might not always be present at the hospital when the child is born.  Just because the father was absent, does not exclude him from this process. If the father wishes to voluntarily acknowledge paternity, legal documents need to be completed, signed by both the child’s mother and father, and submitted to the State of Michigan along with the required processing fees.

Court Ordered Paternity

If a father refuses to voluntarily acknowledge paternity of a child, you may need to take legal action.  In order to resolve the issue, genetic testing and a paternity suit may be necessary. Genetic testing is done when the alleged father questions or denies paternity of a child. A paternity suit entitles an alleged father to a hearing before a judge to prove whether or not he is the father.

Once paternity is established, either voluntarily or by a court order, other legal issues such as child support payments, child custody, and parenting time may need to be determined.

It is in your child’s best interest to resolve any legal issues as soon as possible.

Getting Divorced In Michigan

The decision to end a marriage never comes at a convenient time. The amount of anxiety and turmoil that accompanies separating a marriage or family can seemingly take over your life. I understand that you have questions about the divorce process, legal separation, or child custody matters. I have helped families just like yours and I can help you and your family through this difficult time.

According to Michigan law, grounds for divorce are considered to be the “Breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” (See Michigan Compiled Laws, Section 552.6) Whatever your reason for divorcing your spouse may be, my goal is to help you and your family make this transition peacefully and easily so that you can move your life forward. When you hire me as your Michigan divorce attorney, you get all my years of experience working for you. I know how traumatic a divorce can be for you and especially your children, which is why I offer compassionate, personal attention to my clients. You are not just another case in my law firm, you are an individual who deserves my dedication so you can achieve the best possible outcome. Let me worry about your case so you don’t have to.

MORE ABOUT A MICHIGAN DIVORCE

Over the years of practicing family law in Michigan, I have learned that a divorce lawyer is part litigator, part therapist, and part accountant. Naturally people want to know how much they will pay or receive in alimony or child support. What is community property and how is it divided? Who pays the outstanding debts? How will child visitation be arranged? Who gets custody of our children? I welcome your questions and I encourage you to sit down with me to discuss your case. In most cases, both divorcing spouses want the divorce to result in a fair and equitable outcome, but there are times when negotiations break down and the other spouse becomes unreasonable. When that happens, rest assured that I will aggressively pursue your interests in court. My proven track record speaks for itself: achieving results no matter how harsh a full-on court battle will be. I am prepared to fight for you and go the distance.

WHY HIRE ME AS YOUR DIVORCE LAWYER?

Every lawyer has gone to law school, and every lawyer has some experience in some area of law. I have dedicated my practice to family law matters such as prenuptial agreements, divorce, custody, alimony, child support, adoption, property division, decree modifications, restraining orders, and visitation matters. It is my core belief that settling your case amicably is usually the best solution and I encourage both spouses to make compromises when necessary. If the other attorney wants to be a bully, I will stand my ground. I am not intimidated by table pounding opposing counsel.

Family laws in Michigan change from time to time and trends in divorce can alter the outcome of seemingly similar cases so it is my firm belief to stay informed by studying new case law and decisions in my area of expertise. My law firm also believes that everyone should have access to the family law court system which is why we offer affordable payment plans and reasonable fees. We can always justify every dollar you spend on legal fees at our firm. I promise to be accessible to you and promptly return your phone calls. Call my office today to set up an initial consultation.

Pre-divorce financial planning

Pre-divorce financial planning for the secondary or non wage earner

It is common to ignore the danger signs in a marital relationship. Nobody likes to think that their marriage is in danger of dissolving. Facing reality and planning ahead, however, can avoid unnecessary stress.

The following are some financial planning recommendations which, although not pertinent to every situation, generally have proven helpful to the secondary or non-wage earner.

  1. Review all mail which comes into the marital residence and make a list of all the senders and their return address. It is particularly important to obtain the addresses of brokerage houses, insurance companies, credit card issuers, banks, etc. Make and keep copies of all bank and brokerage statements.
  2. Review all tax returns and seek complete explanations as to any item which may be questioned before signing. Make copies of the tax returns including any and all schedules.
  3. Inventory and periodically review the safe-deposit box. List the contents (including cash and jewelry) and make sure that the safe-deposit box is in joint names.
  4. Do not make major purchases (such as a boat or expensive car) for your spouse, or allow your spouse to make major purchases on your behalf. Keep the assets of your marriage liquid and unencumbered.
  5. Do not transfer, assign, alienate or make a gift (even to the children) of any marital asset. Maintain all assets in joint names (or your name alone, if possible).
  6. If your spouse has a pension plan with his/her employer, determine when the pension vests. It may be important to be married at the time the pension vests to ensure that you will be entitled to a share of that asset. Obtain copies of the pension and/or profit sharing plan and any yearly statements.
  7. Obtain copies of any will or trust documents. Go with your spouse to the attorney and participate in any estate planning.
  8. Gather loan documents, mortgage applications, and financial statements.
  9. Do not sign any documents or financial instruments that are blank. Keep copies for yourself and do not rely on your spouse to fill-in the blanks.
  10. Have a complete medical and dental checkup. Familiarize yourself with your spouse’s medical and dental plans. Make certain that you have done any needed medical and dental treatment prior to separation and that you are covered with medical insurance in the event of separation.
  11. For purposes of receiving any social security benefits to which you may be entitled when your spouse retires, make certain that you are married for at least ten years. Do not separate prior to this time (or at least avoid being divorced prior to this time) if at all possible.
  12. Open your own safe-deposit box at a bank to store any important papers and valuables. You also may wish to open up a post-office box to receive personal letters from your attorney, etc.
  13. Separation generally causes immediate economic hardship. Therefore, put away as much cash as you can. You will need to retain an attorney and will also have particular personal, financial needs which your spouse may not want to pay for. Therefore, from weekly monies which you receive from your spouse to buy groceries or from your employment, “separate and stash” as much as you can.
  14. Make certain your automobile is in good working condition and that it is titled in your name or jointly (not in your spouse’s name alone). You will need to be mobile in order to see your attorney, go to the supermarket, or go to work.
  15. Review and make copies of any and all insurance policies relating to the marital residence, furnishings or other assets, including any riders for jewelry, silverware or other valuables. Make copies of any appraisals which may be available.
  16. Don’t create any additional indebtedness and don’t allow your spouse to do so either.
  17. Develop your own lines of credit. Obtain in your own name: gasoline credit cards, credit cards from larger department stores and national credit cards (Visa, MasterCard, and American Express).
  18. Keep all inheritances separate from your spouse. If an inheritance is received, don’t place it in joint names.
  19. Make certain that all taxes owed to the Federal Government and any other taxing authorities have been paid.
  20. Obtain the most recent financial statements given by you and/or your spouse to a lending institution for the purpose of obtaining a loan or line of credit. (This usually lists all assets and liabilities).
  21. DO NOT move out of the marital residence.

Each particular situation is unique. If you are unsure what action or inaction is appropriate or prudent in your situation, you may want to consult with an attorney.

All About Living Trust

Understanding Living Trusts-Avoiding Probate and Saving on Taxes

If something happens to me, who has control?

If you and your spouse are co-trustees, either can automatically act if the other becomes disabled or dies. If something happens to both of you, your hand picked successor trustee steps into your shoes and acts pursuant to your directives set forth in the trust.

At disability, the successor trustee manages your financial affairs for as long as necessary. Upon your death, the successor trustee pays your debts and distributes your property according to your instructions. Remember, this can all be done without any probate court intervention whatsoever.

Who can be the successor trustee?

Successor trustees can be individuals such as adult children, other relatives or trusted friends. You can also have a corporate trustee such as a bank.

Advantages of a Living Trust:

  • Avoids all probate and related costs – both financial and emotional
  • Allows quick distribution of assets to beneficiaries
  • Can reduce or eliminate taxes
  • Preserves privacy – completely confidential
  • Very hard to contest
  • Provides effective prenuptial protection
  • Inexpensive, easy to setup and maintain

Reasons for having a Living Trust:

A living trust is used to avoid the expense, time and anguish of probate court proceedings. Property transferred by will is subject to administration through probate court. Also, if you become disabled, your assets will come under the control of the probate court.

A living trust avoids all probate and makes sure that your estate plan is carried out with as little effort and expense as possible, while still allowing you to maintain complete control of your assets. It can be amended or revoked at any time prior to your death.

Doesn’t joint-ownership avoid probate?

This method of owning property can avoid probate, but often results in unintended legal results and tax disadvantages. There can be significant tax disadvantages especially when property that has appreciated in value over the years is transferred by his method. Further, there may be an undesirable gift tax imposed at the time the property is transferred. When you add someone as a co-owner of your property, you lose control. You are exposed to creditors of the other owner, including their spouses during a divorce proceeding.

What is a Living Trust?

A living trust is similar to a will. It is a written expression as to how and to whom your assets will pass to upon your death and provides for management of your assets during your lifetime should you become disabled – all without the necessity of probate court involvement. It can reduce/eliminate estate taxes, is extremely hard to contest, and makes an effective prenuptial agreement.

How does a Living Trust work?

A living trust is created during your lifetime, usually for your own benefit for as long as you live, and after that, for the benefit of your family. When you set up a living trust, you transfer all of your property from your individual name to the name of your trust, which you control; such as John and Mary Smith to John and Mary Smith, trustees of The Smith Family Trust.

Legally, you no longer directly own anything (everything is owned by the trust) so there is nothing that goes to probate when you die or if you become disabled.

Is it hard to transfer my assets into my trust?

No, funding the trust is simply a matter of re-titling your bank accounts, bonds, stocks and real estate. Your real estate is transferred by a simple Quit Claim Deed. Your banker and other financial advisors will take care of transferring other assets such as stocks, accounts and bonds. As trusts are becoming so common, they are quite familiar with the procedures to do so.

Do I lose control of the property in my trust?

No, not at all; you keep full control of your assets while you are alive. You are the initial trustee of the trust and as such, you can do everything you could do before. You can sell the assets, mortgage the assets, make changes to the trust or even cancel your trust at any time. Nothing changes except the name on the titles.



No Will or Trust


Will Only


Living Trust


Can I avoid probate?


No


No


Yes


Can I reduce/ avoid federal estate taxes?


No


No


Yes


Can I keep inheritance from my heirs until they reach age 30
or older?


No


No


Yes


Can I arrange to have funds managed for the benefit of an
heir who is handicapped or otherwise unable to handle funds?


No


No


Yes


Can I make sure my grandchildren will receive my estate
after my children die, excluding spouses of my children?


No 


No


Yes


Can I leave assets to children from an earlier marriage,
cutting out my present spouse?


No


No


Yes


How long after my death until all assets are distributed and
the estate is closed (assuming all goes well)?


6 mos. to 2 yrs


6 mos. to 2 years


2 – 9 mos.


Can I retain control over my assets while I’m alive?


Yes 


Yes


Yes


Can I change/revoke the plan?


N/A


Yes


Yes


Does the plan provide for someone to handle my finances if I
become disabled?


No


No


Yes

ABC’s of Divorce

Divorce can be a traumatic and complex process for many couples. In part, this is due to the fear of the unknown. This page provides an outline of the divorce process and is intended to offer a simple explanation of some of the key issues involved in a divorce.

How is a Divorce Started?

A divorce case is started by filing a complaint for divorce in circuit court. If you are served with a divorce complaint, you must file an answer within 21 days or else you could be defaulted. If you are defaulted, you will not be allowed to voice your concerns regarding any issues involved in the divorce.

While the divorce case is pending, the judge will typically require that the martial home be maintained as it has been during the marriage. Thus, the mortgage, utilities, food and other expenses will continue to be paid as they have in the past.

Once the case has been started, the process of “discovery” begins. This process allows each spouse to “discover” or demand what property, income or other information is in the possession of the other spouse.

Once discovery is completed, a settlement can be negotiated between the parties. If the parties are unable to reach an agreement, the judge will typically refer them to a mediator. A mediator is an experienced divorce attorney who assists the parties in reaching an agreement. It is not binding.

If you do not reach a settlement, your case will eventually go to trial and the judge will decide all of the issues involved in your divorce. However, in Michigan, less than 3% of all divorce cases go to trial. Judges simply do not like to hear divorce cases because of the difficult and emotional issues involved.

Dividing Property in a Divorce

As a starting point, marital property is usually divided equally between the parties. However, each party is allowed to keep “non-marital” property – property that a spouse brought into the marriage and inheritances and gifts received and kept separate during marriage.

Equitable factors, such as fault and age and health of the parties, could cause the court to sway from a 50-50 division of marital assets.

What is Marital Property?

Marital property is any property acquired during the marriage, no matter who was responsible for earning it or in whose name it is titled. It includes a pension even though it may have been earned by only one spouse during the marriage. It also includes the appreciation in value of the pre-marital property of a spouse.

Spousal Support

Alimony may be awarded by the court in addition to the property settlement. The factors considered by the court are:

  • length of marriage
  • ability of parties to work;
  • age of parties;
  • conducts of the parties;
  • property awarded to the parties;
  • ability to pay alimony;
  • prior standard of living of the parties.

Alimony is typically for a limited period of time – referred to as rehabilitative alimony. It is designed to provide support for a few years while the spouse receives job training or education. Alimony is tax deductible by the payer and taxable to the recipient.

Child Custody

There are two types of custody issues involved in a divorce case – legal custody and physical custody. Legal custody refers to decision making authority over matters affecting the child (education, medical, religious, etc.). Michigan favors joint legal custody.

Physical custody has to do with where the child resides. Among the factors which a judge must consider when making a custody decision are:

  • love, affection and other emotional ties;
  • capacity to give love, affection and guidance to the child;
  • capacity to provide food, housing, clothing and medical care;
  • length of time the child has been in a stable environment;
  • moral fitness of the parties;
  • mental and physical health of the parties;
  • reasonable preference of the child (if of sufficient age to express a preference).

What is the Role of the Friend of the Court?

The Friend of the Court is an agency of the circuit court which assists the court in divorce cases. They will investigate and make recommendations regarding custody, visitation and support. Although the recommendation is not binding on the parties, it holds a lot of weight in the divorce proceeding.

How is Child Support Determined?

In determining the amount of child support, Michigan has adopted a Statewide Child Support Guideline. The court must use the amount calculated under the Guideline in setting support unless there is a compelling reason not to. The Guideline considers the income of both parties and the needs of the child based on national statistics.

When and How Does a Divorce Become Final?

Michigan has a mandatory waiting period before a divorce can be granted. In cases not involving minor children, it is 60 days after the filing of the complaint. With minor children, six months. The six month waiting period can be waived by the court for good cause.

A divorce cannot be granted without a court hearing. At the hearing there must be testimony that the allegation that the complaint is true and that there has been a breakdown of the marriage relationship. A document titled Divorce Judgment is presented to the judge to sign. The judgment contains the property settlement, alimony and custody and support provisions agreed to by the parties. When the judge signs the judgment, your divorce is final.