Family Law Myths And Mistruths
Show Notes:
Listen with Thacker Sleight attorneys as we debunk the most common misconceptions surrounding family law. From misguided beliefs about child custody to widespread myths concerning money, our team clarifies the truths hidden beneath the layers of hearsay.
Note: Always consult with a legal professional about specific circumstances and cases.
Episode Highlights:
00:00 Introduction
01:15 Common Myths About Divorce
03:45 Legal Realities
06:30 Financial Misconceptions
09:00 Custody and Parenting Time Myths
12:15 Emotional Aspects of Divorce
15:00 Importance of Legal Advice
18:30 Final Thoughts
Read the Full Episode Transcript:
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Myths and Mistruths
Podcast Host (0:03): This Thacker Sleight podcast is hosted by Connie Thacker and Allison Sleight, two experienced attorneys who believe honesty, transparency, and knowledge are key to achieving the best legal outcomes. A variety of topics, particularly those related to sensitive family law matters, are candidly covered by Connie and Allison, other Thacker Sleight attorneys, and guests in a refreshing, timely, and practical way for listeners.
Connie Thacker (0:28): So thanks for joining us again for this podcast here with me today. I have Allison, Emily, Corey, and Courtney, and we're gonna talk about some common questions that we get regarding the divorce process and some of the mistruths that are out there in society, so to speak, in terms of who gets what. So the first thing we're going to talk about is sort of who gets the ring and why.
Allison Sleight (0:57): Well, the ring is a gift in contemplation of marriage. So when you receive an engagement ring, that means that there is going to be a marriage at some point in the future. So if you get married and you consummate the marriage, then you get to keep the ring. If the marriage never happens, then the ring goes back to the giver, and there have been plenty of lawsuits over that.
Connie Thacker (1:21): Well, and I had an interesting story once about a ring. I was doing a pro-con down in Kent County, and the opposing party showed up at the pro-con, and once we were finished, she threw the ring at him.
Emily (1:33): Which, for the record, she did not have to do.
Connie Thacker (1:36): And for the record, nor should she.
Corey (1:39): Well, and I think it's important to recognize, too, that it's the first ring. So if you have a second ring after the marriage happened, then that second ring is subject to division. I had a case where that happened once, where they had a ring, you know, one they could afford. They got established a little bit, purchased a $15,000 ring later, subject to divorce.
Allison Sleight (2:00): I always like the celebrities, they're just like us. There's ones in the New York Post and things like that where it's a $125,000 ring that they're fighting over, and it's just really funny to me that, yeah, everyone has the same problems.
Connie Thacker (2:14): I do. All right, let's talk a little bit about this myth that children can decide who they want to live with, and they can dictate the parenting time schedule. So one of the questions that we often receive is, my child is 14, can he or she decide where they want to live or who they want to see?
Allison Sleight (2:36): Absolutely not. And you think about an intact family. Would your 14-year-old be able to say, hey, I'm moving out? No. Unless they're probably a really bad 14-year-old, maybe you want them to move out. So maybe you're like, okay. But until they're 18, they don't get to decide on their own where they live.
Courtney (2:54): Well, and it's one of 12 best interest factors. So the preference of the child is something to be considered depending on the age of the child. But ultimately, no, that cannot be. And we get that a lot. I would say so many people have that misconception that at a certain age, I get 12, 14, 16, no to all of those.
Emily (3:18): And this is, you have to keep in mind that this is for your child's benefit. Because I think that that's a misconception that a lot of people have to is, they believe that if my child can pick and obviously they want the child to pick them, that that is somehow good for that child. Although their voice matters to a certain degree, as Courtney said, it is one of several factors. If the child is put in a situation to decide, that's a tremendous amount of weight placed on their shoulders, regardless of if they do want to ultimately spend more time with you or not. Putting the child in the position to decide, it makes it very, very difficult for that child to make a decision to actively not want to be with another parent and to put that pressure on them, which is why the court routinely looks at other factors as well. I will say that when children are older and nearing age 18, it does become a little bit more difficult to enforce a parenting time schedule. And when the children can drive, you will see a little bit more liberty given to that child, so to speak, perhaps by the court. It gets a little bit harder, as we all know, to control your children the older they get. And that's not to say that it gives you free reign to deny the other party parenting time, but just that the older your child gets, the more their voice will count. But it is never officially their decision until they reach 18 years old.
Connie Thacker (4:46): Yeah, what I often tell clients is their voice gets louder as they get older, and the court really starts to pay a little bit more attention to it. But it's also interesting too, most 14, 15, 16, 17, 18 year olds don't really want to be spending a whole bunch of time with either parent at that age. And so sometimes when a divorce occurs, we make these adolescent kids forced into parenting time. And so if you're in an intact marriage, that's generally not what's gonna happen. You're gonna have kids out with, you know, other friends and not having to pick between a parent who they're gonna be with on a alternating weekend or an alternating week or whatever it's gonna be.
Courtney (5:31): Well, I think to that, I mean, I think a lot of times we have people that say, well, my child says this and this is what my child wants. But at the same note, that child could be telling the other parent the exact same thing. So to Emily's point, I don't like children to be so involved. It's just, I think it can cause a lot. And so I encourage my clients really to not put that pressure on children. They're kids. They should be concerned about being kids to the extent possible.
Connie Thacker (6:03): Absolutely right. So one other question that we have posed to us seems like more often than not is, can we as the one attorney represent both parties in the divorce proceeding? No.
Podcast Host (6:20): Don't do it.
Emily (6:21): It is that simple. No. I laugh, but there's more to it. But the absolute answer to that is no. And actually, one of my very first days here at Thacker Sleight, my colleague Allison said, if you find an attorney that says that, run the other direction. And that's always resonated with me, because it's very true. If you do have an attorney who says, I'll represent both of you, I'll do the paperwork for both of you, that's not a situation you want to be in, and you should definitely go in a different direction.
Allison Sleight (6:52): Well, and you just have to think about it. I mean, when the wheels fall off the cart and everyone's no longer happy with everyone, who's going to represent who in that scenario? The same lawyer? It's not possible. And it's just crazy to think that, and you're creating a more expensive mess for yourself, that someone like Thacker Sleight is going to have to fix later on.
Emily (7:13): Exactly. And there's an inherent bias that people don't realize in the drafting of documents. Even if you largely agree upon the terms, there are ways in which, and they may be subtle, but there are ways in which a judgment of divorce would give an inherent bias, depending on the way it's drafted, to one party or another. So if you are the attorney for both parties, you are automatically interjecting some sort of bias and violating your duty of loyalty to the other person. So it is an absolute do not.
Connie Thacker (7:44): And I think what Emily's trying to say and is saying is that it is an absolute conflict of interest for the lawyers to do that, because we can't on one day say to a spouse, these are the things that you should get, and then on the next day say to the other spouse, these are the things that you should get, which are the exact opposite of what we told the spouse the day before. It just cannot be done. And even if you come to us with what you claim to be an agreement, and if I had a dollar for every time somebody told me that, I wouldn't be doing this podcast, I'd be sitting someplace else, because people come to us and say, we've reached an agreement. And when we start to put the pen to paper, the agreement falls apart. And not everybody understood what their agreement was. And now there are more questions about it. And so when we have people who come to us and say we've reached an agreement, we tell them we cannot represent the other party in this transaction. And we're very clear, yes, we'll draft the paperwork consistent to your agreement, but we represent one party or the other. We cannot represent both.
Emily (8:56): Absolutely. And there are some creative ways that you can have just one attorney involved in a case as long as everybody understands that that attorney only represents one of the parties. For example, if there really is an agreement, and you bring that to an attorney here at Thacker Sleight, we draft the documentation, send it to the other side, send a disclaimer saying we do not represent you, you need to understand that. Sometimes we've even had people acknowledge in writing that they understand we do not represent you. If they do decide to voluntarily enter into that agreement that the other attorney prepared and they are unrepresented by counsel, there's absolutely nothing wrong with that. They can even contribute towards the attorney's fees of the attorney who drafted those documents on behalf of the one person. They just have to, we just have to make sure that they are doing so knowingly that that attorney who drafted the documents was not representing them personally.
Connie Thacker (9:55): And we can, in fact, mediate cases for both parties as a mediator, but our role is very defined and it's very different. So we can act as mediators, you'll then sign a mediation agreement that we're not representing either party, we're just acting as a mediator to try to get you to come to an agreement.
Allison Sleight (10:13): But then you still have to have another attorney draft the documents because the mediator can't. So that brings me to the next issue that we hear all the time is how much will my divorce cost? And I guess one of the answers to that is if you've hired the attorney that says they can represent both of you, it's going to cost a lot more than you would have thought because now there's going to be fixes that are necessary. So I always tell people that our retainer at Thacker Sleight, currently it's $7,500. I'm a numbers person. I go through the books every year and try to come up with an average of what it might cost so that we set the expectations out of the gate appropriately. I mean, certainly I could tell someone that the retainer's $2,000, but when the $2,000 is gone, their expectation is going to be that I've done something wrong because it was supposed to cost about two grand. That expectation is really a bad one to have. It costs a lot more than that, given all the complicating factors that we have, all the document drafts and who we're dealing with.
Courtney (11:09): That's what I was going to say, Allison. I think that a lot of times my answer to that always is it depends. And it depends on so much really sometimes beyond our control, beyond our clients' controls. It sounds kind of funny, but there are attorneys out there who will blow things up intentionally, I feel like, and it just seems like we are fighting all the things all of the time. And those cases get very expensive. And it does not matter what we do. We can't change what the other side's going to do. So if you have an angry, soon-to-be-ex spouse that wants to come in and just scorch the earth around them, that's going to be an expensive divorce. So I always say it depends.
Emily (11:57): I do as well. And of course, I always say it depends on how the two of you conduct yourselves, because as Courtney said, you cannot control what your ex-spouse does or what his or her attorney does. However, you can control how you react to that. And sometimes you do have to, let's say, swallow a bit of that difficult pill that you're going to have to pay your attorney to respond to some of this inflammatory stuff and perhaps irrelevant issues. But you can also choose to not be the person who engages in that as well and keep your costs down a little bit. So the answer really is the more amicable this thing is, the more you cooperate, the less it's going to cost. Cooperate is not necessarily akin with settle and give away the farm, but it's really picking your battles and engaging in the ones that are important and not necessarily engaging in the ones that aren't. And listening to your attorney when they say, this is not an issue that you want to spend money on. We get a lot of disputes about personal property, which is very important to keep in mind that when you think about your attorney's hourly rate and the other side's hourly rate, arguing over something like a couch or a toaster is generally not a good idea. So you really have to keep in mind that you can help control that cost.
Corey (13:23): I think another thing to keep in mind, too, is that you kind of get what you pay for. So you pay for nicer attorneys to have the more experience and the better experience of going through this divorce process. I really appreciate that, Dr. Sleight, because not only do you get expert attorney experience, you also get that white glove assistance personal aspect to it. So it's not that you're just getting legal services from us, but you're also getting somebody to guide you through this process and to kind of make that emotional journey as palatable as possible, even though it's a tough process. But we really try to be mindful of the individual person, individual client that we have and meet their individual needs because not every case is going to be the same.
Emily (14:03): Absolutely. And this is this is your home. This is your nest egg. This is your retirement, your children. You wouldn't go to the discount surgeon, would you, to have heart surgery? I mean, you definitely need to keep in mind, as Corey said, that you do get what you pay for. And we do try to keep our costs as low as possible, but we have to do it right as well.
Courtney (14:28): Which I think brings another question that we get a lot is, you know, how does my retainer work? Like Allison said, our retainers are $7,500 right now. But people are curious, does that does that pay for the entire divorce? Where does that get me? And so I think that a lot of times people are curious how, how does the retainer work?
Connie Thacker (14:49): Well, unfortunately, the divorce process is not inexpensive. And the average divorce costs in the United States is anywhere from the average with no kids and simple issues is between $15,000 and $30,000. So getting divorced is not an expensive thing to start and participate in. And unfortunately, the process requires the billings that occur by the hour. We are not allowed to charge contingency, meaning I can't take a percentage of your marital estate. Ethically, the only way that we can charge you is hourly.
Allison Sleight (15:31): And so the retainer works like this, you pay the retainer and it remains your money until we've earned it. So at that point, you'll be getting monthly bills, you'll see the monthly bills. And certainly if there's a problem with the bill, you should call the office and address that issue. But then the retainer money is used to pay each bill as it comes out. And when there's no retainer left, we have to look at where are we, what are the options and what is the cost benefit analysis of moving forward and spending more money?
Courtney (15:58): Well, and that can really be determined by what's going on as well. So if you, if we have trial upon us, that is going to be, you're going to need to refresh your retainer more than if we are wrapping up mediation. So I mean, back to my fantastic answer to all of the questions is it depends.
Connie Thacker (16:19): It sure does depend on a lot of things. So turning away from that topic a little bit, we're going to talk a little bit now about support and how support is calculated. And when we talk about support, we're dealing with child support and spousal support. So we're going to talk a little bit about the differences in the two and just so you know how they are actually calculated.
Emily (16:40): Child support is something that is a bit more, well, quite a bit more formulaic than spousal support. There is an actual, there are multiple software programs. It's, it's very much governed by a specific set of rules. And we input certain things into these formulas, such as the party's incomes, the amount of overnights. There is a space to put daycare. We deal with tax dependency exemptions. And really what it does is they, it creates this math equation that is far beyond my pay grade. But we are all looking at the same information, so to speak. The judges use this. The friend of the court uses it. Attorneys use it. And we input these sorts of information. It creates a number and says this is the monthly amount that should be paid to the payor spouse. And one thing that is important to remember with child support, both types of support in particular, but talking about child support, is that it is completely different in every case. You cannot look at what your friend or your neighbor got in support and think that that is what you are going to receive from your ex-spouse as well, because it is very, very, very much income driven. So we input those numbers into a formula. It generates a number. There is an ability for the attorneys to negotiate about what gets put into the formula and what those numbers should be in terms of what is someone's actual income. There can be a little bit of space for argument for those issues. But that creates a number that is statutorily determined. And the courts usually stay pretty close to that, absent agreements to deviate.
Connie Thacker (18:30): Yeah, I always say garbage in, garbage out. So we're putting in certain numbers and what we, we have to rely on those numbers to get what we don't want to have is a garbage number that comes out. So if you have a spouse that also is on bonuses, let's say they've got a commission and they've got bonuses, typically we run the calculator at the base pay and then give a percentage. It's another calculation that we do to determine what percentage of the support is the, is the person who's paying support actually paying in that percentage of it then that you would get as their bonuses come in. If it's six percent, eight percent, nine percent, then you get that percentage of the bonus. One other thing I think we should talk about in terms of child support is whether or not to opt in or opt out of the front of the court. What's everybody think about that?
Allison Sleight (19:22): I think if you have someone who's a chronic late payer, you probably want to be opted into the front of the court because they become your collection system. If you are extremely amicable, which is not many cases, and able to pay all of your bills on time, then and on the receiving end, if you're able to keep track of that and make sure that the payments are received and you have a record, then I would opt out of the front of the court. You don't need them and it becomes a pain and burdensome process.
Emily (19:52): One very important thing to remember about opting in versus opting out is that if you do decide to opt out in the circumstances that Allison described, which are usually relatively limited and you trust that the other side is going to pay you, if you do opt out, it does not mean that the orders cease to exist. They are still collectible. Any unpaid dollars still grow as arrearages. The payor is still responsible for those amounts. The orders haven't changed. It's just that you're letting go of that enforcement mechanism for the time being, but if there is a problem afterwards, if you've opted out, you can always opt back in without the other side's consent.
Connie Thacker (20:33): Yeah, I think that's a really good comment is that if you're opting out, you are opting out of all of the front of the court services. Every service you're out. You can't be in some of them and outside of others. If you're out, you're out. If you're in, you're in. And so if you're out, the front of the court is not going to do anything to enforce or collect for your child support. And the other thing I think also to keep in mind is if you've opted out, you can opt back in. If you've opted in, you can opt back out. So you can go in and out of the front of the court system. One other final thing I would add is if you're on state services of any regard, food stamps or medical services, they're going to require you to stay in the front of the court. You cannot opt out.
Allison Sleight (21:21): Well, and even if you have an agreement that no child supports being paid between two parties, if someone goes on Medicaid or any of those services, the state's going to get involved and recoup those benefits.
Connie Thacker (21:32): Well, I think Allison brings up a really another great point to add is that yes, you can negotiate the child support amount and have a deviation, but don't think that that can't be modified later because it can be. And don't think if you agree that there's not going to be any child support that someone can't come in later and ask for child support because you cannot contract away the child support for the child. If you agree to that and nobody makes a stink over it, then you're fine. But if I agree that I'm not going to have child support this year and the next year I want it, I can go in and get it.
Courtney (22:07): Well, and I think it's important for people to know that there are actually very specific deviation factors that are considered. I've had situations where parties have agreed to not do support and the reason for the deviation did not, it didn't satisfy the court. So deviations, even if you agree to not have support, sometimes it might not be so easy. So that's important to remember.
Connie Thacker (22:36): And the whole reason behind all that is in certain relationships people have power and control. And the person who has the power in the relationship cannot bully the other person into not taking any child support. True, true. Well here's a stumper for you guys.
Allison Sleight (22:52): What does child support pay for?
Emily (22:56): I would call it the necessities. It covers, I would say it provides a subsidy on a general sense to the parent who often has either more time with the children or less income available. It pays for the additional cost, so to speak, to have these kids around more. It doesn't pay for things like extracurriculars, sporting events, out-of-pocket medical. So, you know, I would say it pays for day-to-day clothes, it pays for food, it pays for, it contributes towards your electric bill. But in calculating support it's also important to remember we don't specifically plug all that into the formula either. But I would say that it pays for the day-to-day needs of the child. Things like college, a car, a cell phone, that's not necessarily included in that umbrella. So sometimes those are expenses that do need to be paid above and beyond child support.
Connie Thacker (24:00): But we address those ultimately in our agreements and so if we're representing the party that's going to be paying the majority of those, we often ask to get a list of what those are and divide them between the parties. So I think that that's important to know that you can do that. And one other thing that we should talk about that Emily just brought up is medical expenses and how did the medical expenses get paid. And a lot of parents are very confused about what amount they have to pay first per child in order to then have the unreimbursed medical kick in.
Courtney (24:36): So that's with the ordinary medical expenses and right now it's $454 per child per year. And I say that, well what does that mean? That's a great question. So when the child support formula calculates child support, one of the things that goes into, like, I'm gonna try to explain this best way I can because I am picturing it in my mind, but there's a base support amount and then there's also different things that go into that. So there's the health insurance premium that is taken into consideration based on the income of the parties and the percentage of their incomes. That's included as one of the additional things beyond the base and it might go plus or minus one way or the other. Another thing what I was talking about was the ordinary medical expenses and what that means is the person receiving the child support receives an additional amount per month in which is the ordinary medical expense and that is calculated with the percentage. And so what happens is the person receiving support receives in total $454 per child per year for ordinary medical expenses.
So that person will, the payer will always pay that, the payee will always receive that, which means that the payee, the person receiving support, needs to cover the first $454 of ordinary medical expenses. Once that is satisfied, then the parties will split the medical expenses, so things that are not covered by insurance, then they start splitting it pursuant to their percentages of incomes. So it's a little tricky but this is kind of one of those things that if you're going to have a problem with your spouse, this is one good reason to stay with the front of the court because if you've opted out of the front of the court and you're not having success with keeping track of all of this or getting enforcement, the front of the court can help with that. But that's what the medical expenses are. I hope I did a good job of explaining that.
Connie Thacker (26:47): Yeah, you did a great job. One other question that we get to is, I want to know how the child support was spent. So I want him or her to give me a list of everything they've spent child support on and that just doesn't happen. So don't even waste your breath asking for how it was spent because you're not going to find out. The other issue, and then we'll move on to spousal support, is sometimes on these really high child support cases, and I had one a couple years ago where the monthly child support was $12,000 a month and the other side was demanding that we do a trust to put the money into a trust for the child so that basically the other parent didn't have access to it. And again, don't even waste your breath because you can't do it. So let's talk a little bit about spousal support real quick and how spousal support is generally calculated. Spousal support is also known as alimony. It's alive and well in the state of Michigan. We often hear asked that question. People say that, can I still get it? The answer is yes and also keep in mind that as of 2019 it's no longer income to the person who receives it and the person that's paying it no longer gets a tax deduction. But we do have a number of factors that we'll talk about.
Allison Sleight (28:06): I think the biggest question that we get with spousal support is, oh I'm not entitled to it because I haven't been married 10 years, right? Wrong. You can have spousal support for any number of years and it's calculated or there are calculators available out there that the court can rely on but they don't have to based on the years of marriage. So if you've been married one to three years I wouldn't expect a whole lot in spousal support. If you've been married five and beyond or looking at some higher numbers then certainly there can be spousal support.
Corey (28:35): And it's important to recognize too that spousal support is it's need based and that's what the court's going to be considering most often. So another couple examples of the factors that they consider is the age of the parties and the health of the parties. So if one of the parties develops cancer during the marriage the court's going to take that in consideration whether or not that that cancer survivor or that cancer patient that spouse needs to have that additional support.
Emily (28:59): This is something too that it like child support it's important to remember how individualized it is. It really will take you down an unpleasant rabbit hole if you try to compare what you may receive or have to pay in spousal support to your friends, your neighbors, your colleagues because it is very much and analyzes the income differential between the parties. The higher that income differential theoretically the higher the support amount the longer the marriage theoretically the higher the support amount. So there's a lot of factors that the court will look at but they have a lot more flexibility and there's more room for negotiation generally in a spousal support claim than in a child support claim.
Connie Thacker (29:44): So one final question for us to end with is if I'm getting divorced and I'm on my spouse's medical insurance how am I going to get medical insurance going forward? And we're going to talk a little bit about COBRA and the minimum amount of employees for COBRA is 20. So if your spouse is working for an organization that has less than 20 employees they do not have to provide COBRA. So keep that in mind as you're giving thought to medical insurance and then here at Thacker Sleight we work with a number of medical insurance brokers that we refer our clients to in order to obtain that insurance. You can also elect to have it and do the COBRA for 36 months from the date of the judgment of divorce as opposed to 18 if you just terminate your employment. But as we all know COBRA is very expensive.
Courtney (30:41): I was gonna say COBRA is for those that don't know in case you don't because I another I didn't know for a long time but COBRA insurance is essentially paying for your current insurance to continue on through so you're paying out of pocket for that which can be very, very, spendy. So that's I don't know if it was this podcast or another one but what Corey was saying is here at Thacker Sleight we do the white glove treatment and so talk to us and we can get you connected with somebody.
Connie Thacker (31:07): Yeah because insurance can be a big cost for everyone and so and you have to have it so when you're used to having your spouse's employer pay for that or get coming out of the family budget it can be a big shocker because there really are no limitations on how much more the employer can charge for COBRA and it could be sometimes as much as two three hundred four hundred times the amount of the regular insurance. So with that we hope that we've answered a lot of common questions for you today. If you have any other common questions you can certainly reach out to us and we'll be happy to provide some insight. So thank you.
Podcast Host (31:46): Thank you for listening to this episode of our Thacker Sleight podcast. If you have additional questions do not hesitate to contact us at 616-888-3810 or visit our website thackersleight.com for further information.
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