Benefits for a Divorced Spouse
Social security benefits are received one of two ways: (1) they are paid upon retirement, based on contribution to the social security system or (2) paid to a spouse of the contributor.  A person who is eligible for both will receive the higher benefit.

You must be married to a spouse ten years or longer in order to receive benefits through the spouse.  The spouse must have worked 40 quarters and be at least age 62.  A dependent spouse qualifies for derivative benefits by being age 62 and remaining unmarried after the divorce.

Impact on Remarriage
If the dependent spouse remarries she/he may not receive a benefit through a former spouse.  However, if the dependent spouse divorces the second spouse, that dependent  spouse again becomes eligible to take benefits through the former spouse.  If a spouse has been married more than once and stayed married for ten years, that person may choose the higher benefit of the earners.

Benefits as Income
In a divorce, when computing income to determine spousal and/or child support obligations, social security benefits should be considered.

Resources
There is much to know about social security benefits, such as at what age do benefits begin; working after benefits start; what will a person receive at age 62, 65 or 67; what is the earliest date one is eligible, and more.
For more information you can ask for and receive additional information at www.ssa.gov and Internal Revenue Service (IRS) Publications 554 and 915.

Have a Plan

By:  Carole Chiamp

No one plans on getting a divorce when they get married, but one of every two marriages will end up that way.  If your marriage is one of those that has not worked, you need a plan.  Click here to see the full article. . . Have a plan.

An Underused Avenue of Relief

Family violence occurs in millions of American homes annually and the public has become increasingly aware and unaccepting of the domestic abuse.  In April 1994, Michigan enacted a series of laws designed to expand the scope of domestic violence injunctions and to improve court and law enforcement reaction to domestic abuse.  While injunctive relief and divorce are essential remedies, tort remedies are an often overlooked avenue of relief in domestic abuse cases.

Click the link to see the full article published in the  Michigan Bar Journal

Often one spouse, usually the woman, is asked to sign a tax return at the last moment it is due and not given an opportunity to review.  Often it is never seen again.

When obtaining a divorce, it is most important that a joint return be provided to the attorneys for the parties so it can be used for checking for certain assets, for purposes of determining child support and/or spousal support, among other things.  It can be obtained from the IRS with only one person’s signature, that is, the person seeking it.  The other party will not know that it is being sought.  It may take as long as six weeks to obtain.

Forms and instructions for your use are provided here for obtaining joint or individual tax returns.  Click here for request form.

Carole Chiamp recently won a case in the Michigan Supreme Court when it refused to take the appeal of a woman seeking additional child support from her client, a wealthy European.  The parties had agreed to a very large support order ten years ago which included child support, an annual cost of living increase, health care, child care, extra-curricular activities, travel, college education through professional school and much more.
The former wife received several million dollars in lieu of coming back to the court for more child support.  The parties agreed in writing that it was their intent not to modify support.  The former wife nonetheless asked for an increase in support which was denied by Oakland County Circuit Court Judge Mary Ellen Brennan, the Michigan Court of Appeals and finally on January 29, 2010 by the Michigan Supreme Court.

Many people contemplating divorce think they can be detectives and learn information that may help them in their divorce.  It is true that being vigilant can be helpful.  However, trying to spy on others can be tricky and even criminal.
Civil lawsuits are increasing dramatically because litigants in divorce and custody disputes improperly, and sometimes illegally, tape record, take information from computers or follow others improperly.  Surveillance means “ a close watch kept over someone or something”.  When done incorrectly, it can cause serious problems.  The current state of the law regarding communications, such as, eavesdropping, acquiring computer information and stalking is evolving and often requires professional training be anyone trying to use it and stay within the law.  If not properly addressed, the information obtained may not be able to be used.  Even worse, serious consequences, such as fines, money damages in the thousands of dollars and refusal by the court to use the evidence, may befall the unwary.
In Michigan, federal law prohibits most eavesdropping.  In Michigan state courts, eavesdropping of a person speaking by phone to another person, when the person doing the recording is not a participant, is illegal.  However, one person recording a call in which they are a participant, even if the other person does not know of the recording, is not illegal.
The laws regarding what may be taken from a computer are very confusing.  If it is a “family” computer that is openly accessed, then information can be culled from it.  The more private the computer or the more personal the information, the closer to illegal taking the information may be.  There may be many ways of obtaining the information, such as removing the hard drive for copying; “key logging” which involves software which copies and stores every keystroke, so that e-mails and other typing may be saved is also available.  Most of the use of this software is illegal and will render the information inadmissible.
Certain surveillance by investigators is legal.  That has not stopped those from being followed from suing for being “stalked”.  Stalking must be without legitimate purpose.  Licensed investigators following a person to obtain information with reference to securing information to be used in court or a board or investigating committee are allowed to do their job.  However, placing electronic devices on vehicles to obtain information regarding the whereabouts of a  person is usually illegal.
All in all, there is a balance which must be maintained regarding investigation versus right to privacy.  When the balance is not maintained, the law is broken.  Not knowing the law can cause serious problems.

Carole Chiamp recently won a child support case in the Michigan Court of Appeals.
The case involved a motion made by a mother for more child support of a child in her custody ten years after the judgment of divorce was entered.  Usually a court will review child support every two years or so.  However in this case the father of the child who had a prenuptial agreement with the mother to provide her with $3 million dollars in property settlement at the time of the divorce, had provided his former wife with $6 million dollars to create a similar standard of living to his for his child.  He also provided $100,000 per year in child support with cost of living increases.  In addition, he provided for health care, payment for extra-curricular activities and college education.  The parties agreed in writing to the original order, made a record and the judge specifically approved the settlement.  Wen the mother of the 13 year old told the court that the father of the child was so wealthy he could pay more, the court declined to order more.
The lower court granted summary disposition in the father’s favor and the Michigan Court of Appeals denied leave.  Therefore the father will not have to pay more child support.

If so, What Type of Spousal Support/Alimony Do You
Need and Will the Court See it Your Way?

Many parties to a divorce have heard of spousal support/alimony but do not know if it applies to them.  It is sometimes warranted.  The factors the court looks at are:

• Past relations an conduct of the parties;
• Length of the marriage;
• Ability of the parties to work;
• Source and amount of property awarded to the parties;
• Age of the parties;
• Ability to pay spousal support;
• Current situation of the parties;
• Needs;
• Health;
• Prior standard of living.

The types of spousal support/alimony are:

1.    Permanent Periodic Spousal Support/Alimony. That is, a fixed amount paid quarterly, monthly or weekly.  It does not end until the supported spouse dies.  Most times it ends upon the supported spouse’s remarriage.  It is modifiable upon a change of circumstances.  It is used in marriages of long duration.

2.    Traditional Spousal Support/Alimony. Sometimes this is called “rehabilitative” spousal support/alimony.  It is a fixed amount of spousal support/alimony paid for a limited period at regular intervals.  This support allows the supported spouse to transition back into the work force.  This type of support is sometimes used while a supported spouse attends college or other training.

3.   Lump Sum Spousal Support/Alimony. This is sometimes called “alimony in gross”.  It is a fixed amount which may be paid over time.  It is non-modifiable.  It is not dischargeable in bankruptcy.  It is terminated if the supported spouse dies.

4.   Reimbursement Spousal Support/Alimony. This type of support to the supported spouse is designed to reimburse a spouse for contributions to the other spouse’s increased earning capacity.  It typically recognizes the investment of time and support in taking care of the household and/or children or working outside the home while the other spouse gets an education.  Not all states recognize this type of support.  In Michigan it is sometimes awarded but not called reimbursement spousal support/alimony.

5.    Non-modifiable Spousal Support/Alimony. Both parties may agree to make spousal support/alimony as described above non-modifiable.  It then becomes a contract in the settlement document and if clearly stated to be for a period of months or years cannot be changed.  This assures the supported party that it will be paid without challenge in court.  It assures the paying spouse that at some point the debt will be paid off.

The award of spousal support/alimony is left to the discretion of the judge unless the couple can reach an agreement.  Unfortunately,   judges’ decisions on this subject are not uniform.  One party or the other may be severely financially hurt if left to a judge to decide.  Recently guidelines have been used by some judges but not all.

Spousal support/alimony should be reviewed for tax impact.  Spousal support/alimony is usually taxable to the person receiving support and tax deductible to the person paying support.  The taxation issue must be very carefully drafted to be sure it is correct and will need review by an attorney and/or certified public accountant to be sure it reflects the intent of the couple.

Any spouse contemplating divorce should discuss spousal support/alimony options with an attorney as a court’s order to award spousal support/alimony may have serious consequences to the person seeking to be supported and the supporting spouse.

By:  Carole Chiamp

Special Children:  Are They Getting All
They Need After Divorce?

College

In a divorce we are often asked if a spouse can be ordered to pay for college education for the couple’s children.  The answer in Michigan is no.  However, parents can agree to “contribute” toward college costs and be bound.  There is not one answer.  But questions to ask include:

• Do college costs include tuition, room, board and books?
• Who chooses the college or university?
• How about clothing, food, gasoline?
• Should the expenses be capped?
• How long does the child have to finish school?
• Does the child have to maintain a full-time schedule and achieve a certain grade pointe average?
• Should the parties designate a certain asset for the payment?
• Add to it after divorce?

Handicapped or Special Needs Children

What happens to a child with special needs if that child is likely to be handicapped in adulthood?  Issues will arise which may be different, based on whether the child is under age 18 or over that age at the time of divorce.  Each state must deal with division of uninsured medical costs between parents.  In Michigan that is usually assigned in a pro rata fashion based on their incomes.  Sometimes there are needs which do not fall into the medical category, such as equipment or classes.  Check with your attorney regarding these issues.  Unfortunately in some instances the child will need assistance into adulthood.  Michigan has decided that a parent may not be forced to pay for the child’s special needs after age 18.  Parties can agree to set aside funds for a special needs child after the age of majority but that issue must be addressed in negotiating the divorce terms.

Gifted and Especially Talented Children

Some children have an extra-ordinary gift of intelligence.  Some have athletic, musical or other talents.  Judges have wide discretion in determining what parents may be ordered to pay in the development of these children’s talents.  Rather than having a judge decide, parents may want to identify in general terms the types of programs they are willing to financially support and put that in writing.  It may not be sufficient to say that the parties will share the cost of “ice skating lessons”, for example.  Couples should decide who will cover the costs and sharing of transportation to and from lessons, how many lessons are to be paid for, is the cost of ice skating camps and equipment included?  Another serious question may also arise:  will ice skating supercede parenting-time arrangements?