Child Support modifications and arrears: A Michigan Family law Primer

Q: I've been making my child support payments, but sometimes I can't pay the monthly amount due. What happens now?
A: That amount you didn't or can't pay will become an arrearage.

First of all, the obligation to support a child is with both parents. The Michigan Child Support Formula considers the amount of time each parent has with the minor child(ren), the income of the parties, and other factors when calculating support owed. Typically, the custodial parent will be paid support, and the non-custodial parent will be the payor of support, but this isn't always the case, since it depends on income, number of children, and other factors.

Support will typically be ordered during the pendency of a divorce or custody case (before judgment is entered), or if either parent is receiving state assistance. After the judgment is entered, an adjustment may be made to the support amount, and a new UCSO (uniform child support order) will be issued.

Q: What if I think the amount ordered should be different? I can't pay what I currently owe. 
A: You can request a modification of the support amount through Friend of the Court, or through an attorney.

Either party - the parent who pays, or the parent who receives support  - can request modification, if that parent can show a change in circumstances.


Statutes provide a low threshold for modification, based on circumstances of the parents or as the benefit of the children require,[1] upon proper application to the court and due notice to the opposite party,[2] and for proper cause shown or change in circumstances.[3]

A change in circumstance is a fact-based question. It could be the parent has changed jobs, has a medical concern and can't work, and so on. Also, the Friend of the Court can request a modification of the support amount.  

A parent who's income changes should notify Friend of the Court of this change, whether requesting a modification or not. 

Otherwise, if no parties request a  modification, a support review will be done typically every three years. 

Q: I requested a modification and the Court agreed with me. What's next? Will this take care of the arrears I owe? 

A: The modification has to be made into an order. Your attorney can prepare that, or Friend of the Court will send you a copy eventually if no attorneys are involved. 

But typically modifications do not address arrears - they only modify the amount of support going forward.  (This is also referred to as "no retroactive modification of support," see MCL 552.603 (2)).

If the amount of arrears is owed to the other parent, it's possible that parent can forgive the amount of arrears owed. Talk to your attorney about that. If the arrears are owed because the state is involved, since one parent receives state assistance, then the county prosecutor would also be involved.

Q: The amount of arrears I owe is really high. Is there anything I can do about that?
A: Maybe. The Friend of the Court may let you ask for a payment plan on your arrears amount.  Talk to your attorney about discharge of the amount you owe. Again, the parent receiving support has to consent to this as well. 

Q: Can I go to jail for not paying the support amount?
Yes. 

Friend of the Court can enforce support orders through bench warrants, license restrictions (including recreational licenses), withholding tax refunds, among other means. Friend of Court offices can request through "show cause" hearings that the payor make payments, and explain why payments haven't been made, or go to jail. (These are also called OTSC hearings, short for Order to Show Cause).

In addition, the possibility of felony child support non-payment exists.That can happen when the amount owed is in excess of $20,000 (MCL 750.165). At that point, a warrant can issue to arrest the payor of support. Felony child support violations can carry a penalty of 4 year's imprisonment. No laughing matter. 

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[1] MCL 552.17 (1): Divorce, separate maintenance, annulment.

[2] MCL 552.45:  Family Support Act.

[3] MCL 722.27 (1) (c): Child Custody Act.

What's an unmarried man's rights to an unborn child? Can he claim paternity?

Q: I'm an unmarried father-to-be. My concern is that my ex (things went south after we found out she was pregnant), will try to move out of state, or keep my from seeing my child. Even though our relationship went south, doesn't mean that I want to be uninvolved with my child's life. What can I do? Can I claim paternity right now? 

A: No, you can't. or at least, not yet. 
Barring exceptional circumstances, a Michigan court is not going to issue an order to grant custody to the unmarried father of an unborn child.

The law currently will place custody of the newborn with the mother, unless there are those circumstances that would show the mother is a risk to the child already.

If a couple is married, there is a legal presumption that any child of those adults is a product of the marriage (although that presumption can be rebutted). By contrast, an unwed dad can't claim paternity, parenting time or custody rights (which are typically accompanied by a need to pay support for the child) until the child is born.

Once that child is born, the father needs to act to claim his rights to paternity, etc. He can do that by acknowledging paternity through singing the birth certificate, or through the assistance of an attorney (if, for example, the mother hides her pregnancy from the father who is then unaware of the child until after it is born).

Child Support, Modifications and Arrears: a family law Q &A primer

Q: I've been making my child support payments, but sometimes I can't pay the monthly amount due. What happens now?
A: That amount you didn't or can't pay will become an arrearage.

First of all, the obligation to support a child is with both parents. The Michigan Child Support Formula considers the amount of time each parent has with the minor child(ren), the income of the parties, and other factors when calculating support owed. Typically, the custodial parent will be paid support, and the non-custodial parent will be the payor of support, but this isn't always the case, since it depends on income, number of children, and other factors.

Support will typically be ordered during the pendency of a divorce or custody case (before judgment is entered), or if either parent is receiving state assistance. After the judgment is entered, an adjustment may be made to the support amount, and a new UCSO (uniform child support order) will be issued.

Q: What if I think the amount ordered should be different? I can't pay what I currently owe. 
A: You can request a modification of the support amount through Friend of the Court, or through an attorney.

Either party - the parent who pays, or the parent who receives support  - can request modification, if that parent can show a change in circumstances.


Statutes provide a low threshold for modification, based on circumstances of the parents or as the benefit of the children require,[1] upon proper application to the court and due notice to the opposite party,[2] and for proper cause shown or change in circumstances.[3]

A change in circumstance is a fact-based question. It could be the parent has changed jobs, has a medical concern and can't work, and so on. Also, the Friend of the Court can request a modification of the support amount.  

A parent who's income changes should notify Friend of the Court of this change, whether requesting a modification or not. 

Otherwise, if no parties request a  modification, a support review will be done, typically every three years. 

Q: I requested a modification and the Court agreed with me. What's next? Will this take care of the arrears I owe? 

A: The modification has to be made into an order. Your attorney can prepare that, or Friend of the Court will send you a copy eventually if no attorneys are involved. 

But typically modifications do not address arrears - they only modify the amount of support going forward.  (This is also referred to as "no retroactive modification of support," see MCL 552.603 (2)) 

If the amount of arrears is owed to the other parent, it's possible that parent can forgive the amount of arrears owed. Talk to your attorney about that. 

Q: The amount of arrears I owe is really high. Is there anything I can do about that?
A: Maybe. The Friend of the Court may let you ask for a payment plan on your arrears amount.  Talk to your attorney about discharge of the amount you owe. Again, the parent receuving support has to consent to this as well. 

Q: Can I go to jail for not paying the support amount?
Yes. 

Friend of the Court can enforce support orders through bench warrants, license restrictions (including recreational licenses), withholding tax refunds, among other means. Friend of Court offices can request through "show cause" hearings that the payor make payments, and explain why payments haven't been made, or go to jail.

In addition, the possibility of felony child support non-payment exists.That can happen when the amount owed is in excess of $20,000 (MCL 750.165). At that point, a warrant can issue to arrest the payor of support. Felony child support violations can carry a penalty of 4 year's imprisonment. No laughing matter. 

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[1] MCL 552.17 (1): Divorce, separate maintenance, annulment.

[2] MCL 552.45:  Family Support Act.

[3] MCL 722.27 (1) (c): Child Custody Act.

Failure to pay child support can result in disbarment, says Kentucky Supreme Court

Kentucky Supreme Court says a lawyer can be disbarred for non-payment of child support.

Article here (via aba journal).

Note that the lawyer had faced disciplinary action before for mishandling of client funds, and failure to place funds in an escrow account.

From the article:

James was suspended from law practice for five years in a different ethics case in April 2013. His misconduct included failure to return unearned fees, failing to place client fees in an escrow account, charging unreasonable fees for copying case files, and misappropriating a client’s money, according to the Kentucky Supreme Court opinion. At that time, James said his conduct was because of his discontinuation of medication for a mental health condition and promised to seek treatment through the Kentucky Lawyer Assistance Program.

The Kentucky Supreme Court noted James’ disciplinary history and his failure to respond to the current ethics charges. The court also said failure to pay child support is a breach of attorney duties to follow a court order, to comply with a statutory obligation, and to conduct oneself in a way that is above reproach.

What is "Friend of the Court?" What role will it play in my Family Law case?

This article is designed to inform a newcomer to Michigan courts on the role of the Friend of the Court (FOC) in Michigan family law cases. This article is intended to give general background information, and does not substitute for individual legal advice for your particular situation.

 Q: What is "Friend of the Court?" 

A: Friend of the Court is essentially an arm of Michigan Circuit Courts. It is able to do what the court would do, but it (whatever the task is) is instead delegated to Friend of the Court.

FOC is involved in child support, spousal support, child custody, and parenting time. It also enforces orders on spousal support, and child support.

Q: How will Friend of the Court become involved in my case?

A: At any time during a family law case, Friend of the Court can become involved, either through a request of the parents, or at the request of the court.

If a parent begins a family law case (like custody, divorce, etc.), typically a copy of their pleadings is also sent to Friend of the Court, unless the parents decide to "opt out" of the Friend of the Court services (more on this later).

But if a parent has overlooked this, or if a court chooses, it can "send" or refer the parents to Friend of the Court for its services. 

Q: What are the services of Friend of the Court?
A: FOC can be used to review or modify a support case, mediate parenting time decisions between parents, make written recommendations regarding custody or parenting time, enforce an order of support against a payor of support, and so on.

Q: How does enforcement happen? 
A: Enforcement happens when a parent with an obligation to pay becomes behind on payments. At that point, the FOC can send out a notice to the paying parent for a Show Cause Hearing. This notice will tell the paying parent that they are to appear at a specified date and time, and must "show cause" to an FOC case manager - and possibly in front of a judge -- why he or she hasn't been able to pay, and what plans he or she is making to correct that.

At the show cause hearing, the person with the support obligation may face contempt charges (in other words, that person will go to jail) for not having paid support. So be prepared to pay, or to have a good reason (this is the "cause" they are talking about!) if you want to stay out of jail. 

Q: What types of enforcement is available to FOC?
A: What isn't available to FOC as a means to enforce support, is a more appropriate way to phrase the question. FOC is able to attach a lien onto houses, tax refunds (aka "intercept" of tax refunds),suspension of driver's or recreation licenses, credit bureau reporting, contempt (show cause, see above), are all part of the enforcement capability of the FOC.

Q: What does "opting out" of FOC services do to my case? Would that be a good idea or not? 
A: Opting out means that the parties choose to enforce any support obligation privately, and that FOC will not become involved. Whether it is a good idea depends on the individual circumstances in your case (and this article is not intended to substitute for individual legal advice).

Opting out does not mean that there will be no support obligation at all. A case that involves minor children will require that a support obligation will be issued to one of the parties. (a follow-up article on how child support calculations work is coming soon).

Q: How does one opt out of FOC Services? 
A: Parties to a family law case can opt out of FOC services, if they file a motion to do so. They also must complete an "Advice of Rights" form, to show that they are aware of the services, and that they elect not to choose those services. Some counties will require both parties to attend a "conciliation conference" with FOC, which will make sure that the parents do not qualify for public assistance, before the parties can opt out of FOC services.

Q: My income level has changed. Does this affect what I owe (or what the other side owes me)? What should I do? 
A: The parties who are involved in an FOC case are solely responsible for reporting changes to the FOC about their income (gain or loss) to the FOC. And they should do so as soon as possible. Because of the way support is calculated, the amount of support (paid or received) will change determined on income of the parties, amount of parenting time overnights, and other factors (see related article).

It's best to report an income change as soon as possible to FOC, to make sure (if you're the paying party) that you don't start accruing arrears.

Q: I have more questions about FOC that aren't answered here, what should I do? 
 A:  More information can be found at the Michigan FOC website. Also, feel free to contact me, or leave a question on this blog.

Choosing a family law attorney, Part Three

Part Three 

Welcome back. In Part One, ways to search for your family law attorney were covered. Part Two addressed phone contact with your potential attorney. Part Three will cover what to expect in the in-person consultation.

Frequently asked questions: 

1. Should I bring anyone with me? What about things I should bring with me?
A: It depends. Some attorneys would prefer if you attend the appointment alone. There are reasons for this: for example, you will feel less embarrassed discussing personal details. And, any conversation with your attorney is privileged, but once a third party joins that conversation, where's the client's confidentiality?
However, if you feel you need moral support to go into the consultation, or that you are likely to forget things the attorney talked about, bringing another person might be a good idea.

As far as things to bring: any thing that has been filed with the court so far, if anything. And anything your attorney requests you to bring (tax statements, for example).

2. What kinds of questions should I ask? 
Feel free to ask anything you would like of your attorney about your situation. If your attorney brushes past your questions, ask yourself if you feel that your concerns will be treated with the importance they deserve or not. After all, the consultation is a decision for both you and the attorney- to decide whether you will continue this relationship.  If it feels as if your attorney is trying to offer you a "one-size-fits-all" case, don't continue after the consultation.

3.What kinds of topics will we cover? Why is this so personal?
Anything that affected your married life, and more, will be covered. The reason is because the court will have to make decisions on some of them as your case progresses

For example:
Topic:                                                                     Reason:
When were your children born?                              Eligibility for Child Support
How much is your house worth?                             If it is considered marital property, it will be divided
Where do you and your spouse work                     Which spouse might be ordered to pay support
       and how much do you earn?

4. What happens next? 
That depends on your situation. If you're just starting a divorce, initial filing with the county court where you live will be next. If you're already somewhere past the initial filing, a motion might be next to decide some of the open issues in your case.This is where the rubber hits the road, and your attorney gives you legal advice about your options in your current situation.

Lastly,
There are a lot of online resources about family law in various states. Some of them will not apply to your situation, so as with so many things you read online, take them with a grain of salt. If you still have questions about your situation, call your attorney again to ask.

Choosing a family law attorney, Part Two

In Part One, we discussed ways of getting information on attorneys. Part Two will talk about the initial phone contact with the potential lawyer's offices.

Frequently asked questions: 
1. Who answers the phone and how do they answer it? 
A: Many attorneys do not answer their own phones. His or her schedule won't permit it perhaps, or the attorney prefers to have a gate keeper between himself or herself and the general public. Either way, you are a potential paying client, so you should feel welcomed, and not that you're an intrusion on otherwise valuable time. It's possible that you will have to leave a voice mail. If so, make sure you state whether the attorney can call you back, or not.

2. What kinds of questions should I ask? What kinds of questions should I be ready to answer?
A: Be prepared with a list of questions about your specific situation. For example, "I am thinking about filing for divorce, and I have three minor children." Or: "My ex-girlfriend left the state with our child, can I start a custody hearing?" Be specific, as the attorney can only answer what they are aware of. Don't be afraid to ask about costs.

If you have a specific date coming up, make sure you mention that, or it may not be addressed. For example, "I just left a custody hearing this morning, and the judge said to come back for an evidentiary hearing . . . "

Remember, attorneys are smart, not psychic! And it's entirely possible that some of your questions will need more time before they can be answered. This is why there is no "one-size-fits-all" divorces.

On the other hand, try to answer any questions that are asked. My office has a list of questions used for when a potential new client calls, so that I am aware of what next steps need to be taken for that case. We will always ask where you live, how long you've been married, and the ages of the children.

3. Scheduling the initial appointment and other matters.
It's possible that you'll be scheduled for either a phone consultation, or an in-office consultation. I prefer in-office consultations. I feel that it's easier, less rushed than a phone call, and allows the potential client (and attorney) feel more at ease with one another.

Please consider where your attorney is located, your own location, and the courthouse you'll be using. If you plan on making your attorney drive long distances, that's fine, but that might impact your cost overall.

4. The appointment is scheduled, now what?
It's possible the attorney will mail you information to fill out, or have you fill it out in the consultation. This information will help them start your case, and give you some legal answers. Either way, keep your appointment, or call to reschedule it if necessary.

Set aside enough time to drive to the appointment, depending on the time of day.

Bring any necessary documents with you, for example, anything you've received from the court, or that you feel will help the attorney to serve you better.

5. How much should I expect to pay?
A: This is a difficult question to answer. Attorneys have rules of professional ethics to guide them in setting fees. (MRPC 1.5)  That said, a basic retainer could range from $850 to $5000, depending on the complexity of the legal issues involved, the experience of the attorney, and the novelty of the legal issues involved (more complex or unique issues can take longer to be addressed).  And, the retainer may or may not cover your entire cost of the case, depending on how long it takes, and the nature of the parties involved (who will argue more over issues, you or your soon-to-be-ex?) Also, additional experts may be needed, from child psychologists to business valuation experts, depending on your situation.

Coming Next: Part Three: What to Expect in the Initial Consultation.

Divorce information in Michigan - a brief overview of family law issues

What follows is a brief overview of issues in Family Law. For more information, contact me, or view my website, nancyballastlaw.com 

Divorce - Time Lines

The time you are waiting for your divorce to be final depends on several things. If you are married with minor children, the waiting time is at a minimum six months, as set by the state statute governing divorce. If you are married without minor children the waiting time can be less. This all depends on whether, as the deadline approaches, there are still issues to be settled between the spouses, such as property division, or spousal support.

Spousal Support

Spousal support (formerly called alimony) is not an automatic "given" in any marriage. The court decides whether to award spousal support, and for how long, depending on several factors. The factors include, but are not limited to: the ages of the parties, the abilities of the parties to work, the length of the marriage, and so on. It's also not a "given" that the man would pay spousal support to the woman, it could be reversed, depending on the situations of the parties.

Child Custody

It's possible that a couple can reach an agreement about child custody before they begin the divorce process. If that's the case, it makes things easier on all parties, and the children as well. But if the parties can't agree on custody, it will be decided by the court. The court takes into consideration the best interests of the child, and may decide that a joint custody arrangement is preferred to one where one party has "sole custody."

Child Support

All children have the right to a parent's financial support until the child is 18 or graduates high school. The amount of support a parent will pay is based on applying the Child Support Guidelines, with the amount of parenting time a parent has as a factor. Joint custody of children will not erase a parent's support obligation. Many factors go into calculating what child support obligations are.

Property

Property settlement is the area of divorce that divides all assets accumulated during or by reason of a marriage. Even if property is titled in one party's name, it may be considered as marital property. If a valid prenuptial (or antenuptial agreement) was entered, that will also be considered by the court.

Visitation

It is presumed that it is in the best interests of the child to have a relationship with both parents that continues during and beyond the divorce process. The court will arrange for visitation that supports a relationship with both parents - whether custodial or non-custodial. Often, parents can agree on a schedule for visitation, but if not, the court will arrange one for the parents. If one party seeks to restrict or limit the other party's visitation, the court will only order this based on clear and convincing evidence that visitation would be a danger to the child's physical, mental, or emotional health. This is because a child has an inherent right to love and affection from both parents, and neither parent should attempt to estrange children from the other parent. It's best not to involve the child in disputes between the parents that often occur during the divorce process.

Friend of the Court

Friend of the Court may be involved in your divorce, custody, or child support case. Friend of the Court is an arm of the court, and it issues recommendations on child support, custody, and visitation. It is also involved in enforcement of child support orders.

How long do you have to keep supporting your child?

The law in Michigan isn't like this, but in other states, non-custodial parents are required to support children past their 18th birthday. See article here. Contrary to this,Michigan law says that a child support obligation ends when the child reaches 18 (or up to 19 1/2 depending on whether that child graduates from high school in their 18th year), marries, or becomes emancipated.