Paul Stockyj, Attorney at Law

3 ways for divorcing couples to address real estate matters

2023-04-23T22:13:10Z

Divorcing couples in Michigan often struggle to address the valuable property that they own together. For many families, their primary residence is their most valuable shared property. Spouses may have spent two decades or even longer building equity in their homes and making improvements to the property over the years. The equity in the home where the couple lives could be the single biggest contributing factor to their personal wealth. What happens to a home during a divorce will, therefore, have a major impact on someone's future financial stability. These are the three most common solutions for real property disputes in Michigan divorces.

1. Letting one spouse keep the home

There are multiple ways for a couple to facilitate one spouse's retention of the home in a divorce. Often, the spouse that will keep the home refinances it and then uses the equity accrued in the property to compensate their spouse for their prior investment in the home. Other times, the person who doesn't keep the home might receive other property instead, like a retirement account or sole ownership of the family business.

2. Selling the house

Perhaps neither spouse has a high enough income on their own to afford a mortgage, especially after withdrawing enough equity to repay their spouse for half of the home's value. Maybe both spouses have strong negative feelings about the home where they lived during the marriage, meaning they both would prefer a fresh start. In some cases, it might even be the judge dividing the marital property who decides that it would be best for the couple to sell the house and divide its value.

3. Retaining joint ownership

In some cases, divorcing spouses agree that the best outcome involves them continuing to own the property jointly. Perhaps they have yet to finish a house remodel and recognize that they need to finish rehabbing the property to recoup their investment. Maybe it is hard to find homes in the school district that their children attend currently, so they will maintain the residence until the children graduate. Special agreements are often necessary to protect the interests of both spouses in scenarios where they choose continued joint ownership of their marital home or other real property. Considering every option for dividing the value of significant marital property can benefit those who are trying to prepare for a Michigan divorce with the assistance of a legal professional.

2 reasons for Michigan residents to start Medicaid planning

2023-03-20T13:34:07Z

To many people, estate planning is synonymous with choosing beneficiaries for their property when they die. That is certainly an important component of the estate planning process, but it is far from the only step involved. Estate planning is also – in addition to additional pressing considerations – about someone's comfort and protection later in life. For example, people can take steps before they retire to protect their assets from creditor claims and to prepare themselves to qualify for Medicaid benefits. While many older adults might hope that they will only ever need Medicare coverage, those who have major health issues later in life or who end up moving to a nursing home might require the support of Medicaid benefits. Older adults and the people who love them often find the two reasons below to be compelling inspiration for engaging in advanced Medicaid planning.

1. It takes time to get benefits

If someone doesn't plan to qualify for Medicaid before their health declines, they could end up in a difficult scenario where they need support that they don't have the resources to pay for during their retirement. They can apply for Medicaid, but the state may impose a penalty before granting coverage. Michigan goes back over 60 months or five years of financial records when determining if someone qualifies and if they have to pay a penalty. Any penalties imposed will pass expenses to the applicant and delay their eligibility for Medicaid benefits.

2. People have to repay their benefits

Medicaid eligibility depends on financial need, which means those with significant income or personal property likely won't qualify without a penalty. Thankfully, someone's house won't prevent them from qualifying, even if it is worth quite a bit of money. However, the state can make estate recovery claims against someone's home and other remaining assets after their death. In theory, the probate courts could force the executor of someone's estate to sell off all of their property, leaving nothing for their loved ones to inherit. It is only by advance planning that someone can protect certain assets and make it easier for themselves to qualify for Medicaid benefits when the need arises. Thinking about a possible future need for Medicaid benefits and other complicated financial considerations can help those who are hoping to create or revise Michigan estate plans with the assistance of a seasoned legal professional.

Will your case be dismissed if you weren’t Mirandized?

2023-02-18T22:08:22Z

You can’t really be exposed to much in the way of cinema or television without being at least casually aware that the authorities routinely give criminal suspects their “Miranda Warning.” This informs them about their rights, including the right to legal representation and their right to remain silent to avoid self-incrimination. Unfortunately, television and movies exaggerate the reality of things, and this leaves people confused about the mechanics of a Miranda Warning. Many believe that an officer’s failure to “read them their rights” (or a small mistake while doing so) will lead to a total dismissal of their charges.

The police only have to remind you of your rights in specific situations

The police may very well read you your rights when you’re arrested on suspicion of some crime – but they may not. It all depends on the situation. There are two triggering criteria that need to be in place before the Miranda Warning must be issued:

You must be in police custody (meaning that you’re under arrest)
You must be under interrogation (meaning that the police are actively asking you questions about potential crimes)

Absent either of those conditions, the police are under no obligation to remind you of anything. This means, for example, that if you’re stopped on suspicion of drunk driving, an arresting officer can:

Ask you any question they want, including probing questions that could cause you to incriminate yourself (if you’re unwary enough to answer them) right up until the point where you’re arrested.
Arrest you and put you in the back of the police car and let you talk. This is often a tactic used by the police since people under arrest often get nervous and say things they probably shouldn’t.

It’s also important to note that evidence in your case won’t be thrown out just because an officer dropped a word or mispronounced something when they finally did read you the Miranda Warning, so long as the basic points were clearly communicated. When you’re in trouble with the law, don’t take your legal guidance from friends, relatives or neighbors. It’s wisest to seek experienced assistance that can help you determine the best possible options for your case.

What is legal custody?

2023-01-31T21:00:10Z

When parents are going through a divorce, they typically think of custody as who their child will live with. A parent who shares custody with his or her ex must divide the time the child is at each house. Generally speaking, both parents usually like to share custody, but you also have situations with sole custody, where the child lives with the same parent all the time.

However, all of this just refers to physical custody. This is a very important part of the process; you need to understand how it works if you are going through a divorce. That said, you don’t want to assume that this is the only thing you should think about. There is also the legal side of custody of your children; you must know how this works and what rights and obligations it holds.

The right to make decisions

Perhaps the easiest way to think about legal custody is that it gives you the power to make decisions for someone else. In this case, that person is your child, who is still a minor. Decisions that you make for them could include things like:

Which doctor to choose if they still need pediatric care.
What medical treatments to get, including things like vaccines.
What religious group to be a part of and/or follow.
Where to attend school.
When and where to open a bank account or other financial accounts.

Parents need to be able to do these things to assist their children at all stages in their life. Divorced parents still have to cooperate, in this regard, if they share legal custody, no matter where the child is living at the time. Just because you have physical custody doesn’t mean that you can do something that is against the other parent’s wishes, potentially violating their legal custody rights.

What if you cannot agree?

Of course, you can imagine just how complicated that can make your situation when the two of you can’t agree on an important issue. Be sure you know what legal options you have.

Is shoplifting a misdemeanor or a felony in Michigan?

2022-12-19T21:26:28Z

Shoplifting is a big issue in Michigan. Retailers ranging from the largest big box stores in the area to locally owned shops have to deal with product loss or shrink caused by customers taking products without paying for them. Some shoplifting involved impulse crimes. Young people, in particular, might try to run out of the store with something in their arms that they didn't pay for while in full view of other people. Others will shove items in their pockets or purses. There are also organized retail fraud groups that have some people distract staff in one area while another person removes items from a different department. Whether you find yourself accused of taking items out of a shop without paying them or hiding them despite having never left the building, you may end up facing theft accusations. Will the accusations against you lead to misdemeanor or felony charges?

The value of the merchandise determines the charge

Michigan has a relatively detailed statute on shoplifting and other forms of theft. It is the total value of the items stolen that determines what charges someone faces. For an individual leaving the store with a movie or a bottle of prestige-brand shampoo in their jacket, the charges will likely be a misdemeanor offense. However, for those who repeatedly take items from stores or who aim for expensive items like jewelry or designer sunglasses, felony charges could be possible. When the total value of the items stolen is $1,000 or more, the state can bring felony charges. The severity of the felony charges will increase with the value of the items stolen. Even misdemeanor shoplifting charges can lead to fines and incarceration, but felony charges could potentially haunt someone for life.

What looks like shoplifting may not have been

Shoplifting is such a common issue that some retail professionals and loss prevention specialists are overzealous in their effort to curtail retail fraud. Managers or security professionals might stop someone before they ever even leave the business because they assume that how someone carried an item or stored it in their cart indicated they were going to steal from the business. There are also many scenarios in which someone simply forgets an item and then ends up facing charges despite being happy to pay for that item. Reviewing the situation that led to your address can give you a better idea of the best criminal defense strategy if you find yourself facing shoplifting charges.

What you should know about modifying your estate plan in divorce

2022-11-09T21:24:26Z

If you have an estate plan when you divorce, you’ll need to make some changes to it. While the last thing you may want to do right about now is spend more time looking at legal documents, this is not something you don’t want to neglect. Timing is crucial. Some changes you can make before the divorce is final. Others need to wait until it is. You also want to be sure that you don’t do anything that violates any terms of your divorce. Let’s look at a few areas you’ll likely need to address

Powers of attorney (POA)

Chances are, you have a POA giving your spouse the authority to make decisions on your behalf, or as designated in your advance directive, regarding your health care if you become incapacitated and unable to speak for yourself. They likely have a financial POA as well. You can change the person you designate for these responsibilities any time. You don’t have to wait until your divorce is final.

Your will and living trust

Under Michigan law, you can’t completely disinherit a current spouse. While it’s wise to start thinking about any changes you’ll want to make, they will likely depend in part on what each of you end up with in your property division agreement. Therefore, it’s probably best not to make any changes until immediate after the divorce is finalized.

Beneficiary designations

You likely have your soon-to-be-ex listed as at least one of the beneficiaries on your retirement and investment accounts as well as your insurance policies. Remember that any changes made to these need to be made with the financial institution or other company that holds them rather than just in your estate plan (if they’re even listed there). If there’s a discrepancy, what’s on the actual account takes precedence. Again, you’ll likely need to wait until the property division agreement and the divorce are final to make changes. Further, if you are ordered to pay child and/or spousal support, you may be required to have a life insurance policy with your ex as your beneficiary. Every estate plan is unique, and every divorce is certainly unique. Therefore, it’s crucial to have legal guidance for your own situation as you make modifications to your estate plan with your divorce.

Why do I need a power of attorney in my estate plan?

2022-10-13T20:00:37Z

Every Michigan estate plan includes different documents. Some people only have a will. Others rely primarily on trusts to achieve their estate planning goals. However, the best plans include multiple different documents to achieve several different unique goals. In addition to the testamentary documents, like a will, that talk about what happens to your property when you die, you also need to consider what might happen to you if a car crash puts you in a coma or if you develop Alzheimer's disease in your 80s much like your grandmother did. Adding power of attorney documents will help you in both temporary and long-term incapacitation scenarios.

How powers of attorney work

Legal adults can draft documents that pass certain authorities to others. If that individual becomes unable to speak for themselves due to declining cognitive abilities or other severe medical issues, powers of attorney authorize other individuals to assume some of their responsibilities. These documents have no authority until the incapacitation of their creator. Many people create both financial and medical powers of attorney and may name different people to serve as their agents in each document. A financial power of attorney could provide access and instructions for someone to pay your mortgage while you are unconscious in the hospital. A medical power of attorney will give someone other than your spouse or say in the treatment you receive. The person you name can act on your behalf in accordance with the instructions you leave.

Durable documents protect you as you age

Some people will eventually become unable to enter contracts or make legally-binding decisions because of diminished capacity. If these individuals already have durable powers of attorney on record, those documents can retain their authority even when their creator no longer has the capacity to create new legal documents. The individuals empowered by those powers of attorney could potentially serve the same role that a guardian would. When someone creates powers of attorney, they may effectively protect themselves against the possibility of an involuntary guardianship in the future. Understanding the impact that powers of attorney can have on your well-being and future may motivate you to add these crucial documents to your estate plan.

Understanding Michigan’s Good Samaritan overdose law

2022-09-09T22:52:56Z

The epidemic of drug overdose fatalities in the U.S. has led lawmakers across the country to determine that saving a life is more important than arresting someone for a relatively minor drug-related offense. That’s why most states, including Michigan, have Good Samaritan laws in place to provide immunity from arrest for people who seek emergency help for someone (including themselves) who’s suffering an overdose. Some of these laws are named for people who died of an overdose because those who were with them fled the scene without calling 911 out of fear of being arrested for their own drug possession.

When does Michigan law grant immunity?

The law applies to anyone who seeks or requires medical help for a drug overdose or “in good faith attempts to procure medical assistance for another individual.” It states that they won’t be prosecuted if they are found to have an “amount sufficient only for personal use” and the evidence “is obtained as a result of the individual's seeking or being presented for medical assistance.” Even if it turns out the person wasn’t overdosing, the law errs on the side of caution. It protects anyone who seeks help when someone is showing signs “that a layperson would reasonably believe to be a drug overdose that requires medical assistance.”

When the law doesn’t apply

The law doesn’t protect people from being prosecuted for more serious charges like drug trafficking. However, if two friends are together using drugs and one of them appears to suffer an overdose, the other should be able to call 911 without fear that they’ll be arrested for having a small amount of drugs in their possession. It should be noted that the Good Samaritan law “does not prevent the investigation, arrest, charging, or prosecution of an individual for any other violation of the laws of this state, or be grounds for suppression of evidence in the prosecution of any other criminal charges.” If the police show up and find a room full of stolen flat screen TVs, you can’t expect this law to help you with that. Overdose scenes can be chaotic, so it’s not impossible for someone to be arrested when they should be granted immunity under this law. If you have been charged with a drug-related crime after seeking help for someone suffering or appearing to suffer an overdose, experienced legal guidance can help you protect your rights.

What if you want to move away with your child?

2022-08-13T18:09:32Z

As a parent who is always looking for better opportunities, you were thrilled when you were offered additional training and a higher-paying role in another state. You don’t want to pass it up, because this is the promotion that you’ve been waiting for. There’s a problem, though. Your child is here in this city, and your ex-spouse is, too. The move is far enough away that they wouldn’t be able to see each other as regularly as they do now, perhaps only visiting on the weekends or a few times a month during the school year. On the other hand, along with your new role paying more money, you also have free daycare options, and the school system is better. You’ll be closer to some of your family that your child doesn’t regularly see, too. What can you do? Is it reasonable to ask to relocate with your child?

Relocation is possible, but you have to talk to your ex-spouse first

To start with, you need to sit down with your ex-spouse and bring up the opportunity. Depending on how much time they spend with your child now and their own goals for their career, this could be a good opportunity to give them more time to focus on themselves or they may think that it’s a great opportunity for your child to be moved into a better educational program. On the other hand, they may have real objections. They may not be happy with seeing your child only a few times a month or feel that your child’s mental health won’t be great if they’re removed from everything they currently know and love.

What can you do if you and the other parent don’t agree?

If you don’t agree on what to do, you can petition the court for a child custody modification. By doing this, you’re asking a judge to determine if you can take your child with you. You will need to build a strong case to show why this change is positive and why it is in your child’s best interests. The other parent may oppose the move with their own point of view, so you have to be prepared for that to occur.

How do you divide the marital home?

2022-07-05T23:17:47Z

If you and your spouse are going through a divorce, one of the things you may need to determine is how to divide your property (including your marital home). Michigan follows equitable distribution laws, which means that your property needs to be divided fairly. This doesn’t necessarily mean that you’ll divide your property 50-50. For your home, this is an important factor to keep in mind. Depending on your situation, you may be able to negotiate a larger share of the property or give up a share to get other assets that you’re more interested in.

What are your options for dividing your home and property?

You have a few options for dividing the family home. Your first option would be to sell the home and divide the profits 50-50. This could be fair if you and the other party supported the purchase or each other equally during the marriage and think you should both get an equal amount of the profits. Another option could be to keep the home and rent it out, allowing each of you to receive compensation monthly from tenants in your home. A third option could be to buy out your spouse’s share or have them buy out your share of the property. They could then keep the property in their name (or you could, if you want it) in exchange for cash or other property. You may have other options, too, such as keeping the home between you both, continuing to pay for it equally, and sharing it for vacations or travel. You might choose to sell it later for a much higher profit, or you could keep it in the family and pass it on to your child when they’re 18 or older.

There are many options to consider when dividing your marital property

Whether you’re dividing your home or another property, there are options to consider that will help you separate property and move on from your divorce. The right approach to negotiating will help you protect your right to valuable assets in the future, so you can have the money and assets you need moving forward.