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Types of Divorce in Michigan

There are three basic divorce options available in Michigan. These are:

Simplified Dissolution of Marriage – Also called simplified divorce. It is available to couples who have lived in Michigan for at least 6 months, agree on the same terms, have no minor children and are not expecting one, and are not seeking alimony. Both parties must attend the final divorce hearing.

Uncontested Divorce – If the parties agree on all issues such as the division of property, debt, alimony, child support, and parenting plans, leaving nothing for the judge to decide, they can file for an uncontested divorce. In this case your attorney will draw up a Marital Settlement Agreement, and then either one or both parties will go to court for a final hearing.

Contested Divorce – If terms cannot be worked out amicably by both parties, then decisions must be made by a judge. Contested divorces take the longest because the case goes to trial and a judge has to go through every document to settle all disputes between the spouses. Both parties have to attend mediation required by almost every court in the State of Michigan.

How long does it take to get a divorce in Michigan?

How long it takes to get a divorce in Michigan will depend on the type of divorce you are filing for. The process of a simplified divorce usually takes 30 days to complete as long as there is a complete agreement on the terms of the divorce and it is uncontested.

In an uncontested divorce case, often parties will enter into a written settlement agreement, with the help of their attorney, prior to filing for their uncontested divorce. From the time of filing until entry of a final judgment of dissolution of marriage, an uncontested divorce could generally take around 4-6 months.

If the matter is contested, however, parties are looking into a much longer process, particularly if minor children are involved. In some Michigan counties, parties with minor children will be required to attend mediation. A contested divorce can take anywhere from 9 months to 3 years or longer to be completed, depending on the facts and circumstances.

Do you get your inheritance if your parents don’t have a will?

Most people don’t like to think about their own mortality or the idea that their parents will eventually die. However, having a friend or neighbor lose a parent can serve as a major wake-up call. You may start to wonder what the future will hold for you as you listen to them explain how stressful and frustrating going through probate court has been for their family.

You might find yourself worrying about whether you will have to endure the same kind of stress when your parents die someday in the future. How difficult handling their estate will be for you depends in large part on how carefully they plan ahead of time.

What happens if your parents die without a last will or estate plan?

If someone passes away without an estate plan on record, intestate succession laws apply to their property and debts. In Michigan, parents, spouses and children have the most significant inheritance rights when someone doesn’t leave a last will. There are rules that apply for both nuclear families and blended families where the parents don’t necessarily share parentage of the children.

In an intestate succession scenario, family members will need to put together information about the assets and debts held by the deceased party and submit that information to the Michigan probate courts. The courts will then oversee the administration of the estate to ensure that all debts receive proper repayment and all assets get distributed in accordance with state law.

An estate plan helps even if your parents want you to inherit everything

Maybe you don’t have siblings, and your parents just intend for you to inherit everything. Perhaps you do have siblings, and they anticipate that you will split everything evenly among yourselves when they die. Your parents might think that intestate succession laws offer enough protection for your family when they die.

Talking with your parents about the complications of going through probate without a last will could help. If they understand that the estate could lose significant value due to probate costs and that you and other beneficiaries will have major delays while waiting for access to those assets, that could motivate your parents to create a last will now to protect their wishes and your inheritance.

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Do I need a Death Certificate to Open an Estate in Michigan?

Given the unprecedented number of COVID- related deaths in Michigan, families are having to wait weeks for a loved one’s death certificate to be executed and returned. Even in ordinary times, death certificates are often delayed when an autopsy is planned or when there is a death investigation. Not only is the death of a loved one tragic, but family members may have the added concern about the delay in opening an estate. Often a family member may need to open an estate quickly in order to access funds in a bank account, pay a mortgage or other bills related to the decedent or to obtain insurance benefits.

Fortunately, in Michigan, you do not have to have a death certificate to open an estate. If no death certificate is available, the Probate Court will allow you to provide alternative documentation of the decedent’s death. This following documentation can be used as an alternative notice of death:

  • Obituary
  • Funeral notice
  • Memorial information
  • Probate notice or legal notice of publication in a newspaper
  • Newspaper or printed online article about accident or crime related death
  • Medical records
  • Letter from a funeral home or medical examiner’s office

The Probate Court needs to make a finding that venue is appropriate. In other words, the Probate Court needs information showing that the person was domiciled in the county in which you are opening an estate. Accordingly, try to make sure that the alternative documentation shows both the date of death and the place of residence of the deceased person. Alternatively, you could provide a copy of the person’s driver’s license or a utility bill to show the home address.

You should attach the alternative document to the Application or Petition for Probate. A short letter indicating why the death certificate is unavailable is also helpful to explain why the alternative documentation is necessary. Once you have filed to open the estate, you can file the death certificate with the Court at a later date.

Please do not hesitate to contact our office at (269) 459-1432 if you have any other questions about opening a probate estate in Michigan. Our office is able to conduct meetings remotely and accommodate the filing of documents during the Covid-19 lockdowns and uncertainty surrounding availability.

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What to do if Children don’t want to go to Visitation with the Other Parent?

Once the Michigan family court has issued custody and parenting plan orders, you should do everything in your power to comply with these orders. Sometimes, the issue in executing a court ordered parenting plan isn’t an uncooperative parent, but a child who refuses to do visitation. It is usually in the child’s best interests to have a relationship with both parents, but there comes a point when you can’t force your child to attend visitation with their other parent. What are some options that are available to you to assist?

Reasons Children May Not Want Visitation with a Parent:

  • The child doesn’t get along with their other parent’s new partner or other children from separate relationships 
  • The other parent has strict household rules that the child doesn’t want to obey
  • The other parent lives far away from the child’s school, friends, and extracurricular activities 
  • Your child simply has never gotten along with the other parent
  • The child has resentment towards the other parent and blames them for the divorce. This can be an issue if you are the reason your child feels this way. Badmouthing your ex in front of your child is known as parental alienation, and evidence of this can be used against you in future custody proceedings. 
  • The child has an event they want to attend that is only possible at one parent’s household

Legal Reasons to Refuse Visitation with the other parent:

  • Parental incarceration
  • Substance abuse
  • Physical or emotional abuse
  • Sexual misconduct, including exposing the child to extreme sexual behavior
  • Parental kidnapping

Is withholding visitation against the law?

Unless there is an emergency situation, you should follow your court ordered parenting plan to the letter. Many parents assume they can withhold visitation if the other parent is behind on child support. There are plenty of methods to get a parent in arrears to catch up, such as wage garnishments, interception of tax returns and lottery winnings, suspension of driver’s and professional licenses, and property liens. Withholding child visitation isn’t on this list. 

There are plenty of other reasons that parents withhold visitation under the mistaken belief that they have legal cause to do so. You can’t deny visitation because the other parent doesn’t have a bedroom for your child at their house. You also shouldn’t withhold visitation just because the other parent is late or otherwise violates the court orders in minor ways. Don’t schedule a vacation with your child during your ex’s parenting time, as this isn’t a valid excuse to deny visitation. Illness also isn’t a reason to deny visitation, and you should alert the other parent if your child is hospitalized so they can attend visitation in the hospital. 

What Happens with Visitation if there is no court order?

Some parents choose to establish an informal parenting plan agreement without going through the courts. This works best when the parents are amicable and likely to follow the agreement. The drawback is that when the court hasn’t ordered the parenting agreement, the court can’t do anything to enforce it. Either parent can technically pick up the child at any time and go wherever they want. However, failure to follow an informal agreement can be used as evidence in a formal custody hearing that the parent is uncooperative in parenting plans.   

Do I Have to Force my Child to visit his Mother if he doesn’t want to go?

If your child confesses that the other parent is beating, molesting, or otherwise abusing them, obviously no one can tell you to send your child back into the arms of their abuser. Along with refusing visitation, you should also petition the court for supervised or no visitation at all. 

At some point, you probably won’t be able to physically force your child to do anything they don’t want to do. If you have teenagers, you already know this to be true. Courts will likely understand if you are able to show that you have attempted to comply with court orders, but based on your child’s age and maturity, you can’t force them to spend time with their other parent. The law doesn’t require you to tie up your child or drag them to force them to attend visitation. Saying your child refuses to visit the other parent works better when the child is 16, but doesn’t sound as believable if the child is 6. 

Strategies for Dealing with a Child who refuses Visitation with the Other Parent.

  • Find out why your child doesn’t want to visit with the other parent. Your child likely doesn’t understand the consequences of disobeying a court order. Asking why they don’t want to go, instead of simply ordering them to go, will give you insight into how you should best handle the refusal. Showing that you care and understand their situation could help convince your child to go to visitation. 
  • Document each time your child refuses visitation. Ask them the reason each time so you can list it. The other parent may bring you to court and accuse you of noncompliance with the court order, so you need to have evidence to defend yourself and your child’s wishes. The other parent may try to prove noncompliance on your part in future custody proceedings, which will hurt your position. 
  • Call the other parent when your child refuses, and try to have the child speak with the parent and explain why they are refusing visitation. The other parent may be more effective at convincing the child to cooperate, and that way the other parent can’t accuse you of intentionally disobeying court orders. Phone records and text messages are more difficult to dispute in court than word of mouth. 
  • Make pick ups and drop offs as stress-free as possible. Maybe part of the reason that your child doesn’t want to attend visitation is because you and your ex frequently argue during transitions. Do your best to hold your tongue and be the bigger person if your ex tries to incite you during custody transitions. If your child is leaving for an extended visitation, make sure their bags are packed and all other preparations are handled well in advance. Rushing all over the house and forgetting beloved items are avoidable things that can cause anxiety. 
  • Continue encouraging visitation. Don’t throw in the towel after one refusal. You should discuss your child’s cooperation with the parenting plan at times besides immediately before pick ups or drop offs.  
  • Remember that you are the parent. You are the one in charge, not your child. You know your child better than anyone, and maybe the soft, gentle approach doesn’t work for them. You may feel guilty for making your child do something that they don’t want to do, especially after the stress of a custody battle and/or divorce. 

herbert machnik Law firm may be the solution to your child refusing visitation.

After the stress of a custody battle, hopefully you won’t also have to deal with the recurring problem of a child who refuses to spend time with the other parent. If you do, it’s your duty as a parent to handle it in a fair way, not based on resentment and bitter feelings towards your ex. If you still have concerns about what to do with your visitation refusal situation, call Herbert Machnik Law Firm at 269-459-1432, or Contact Us Here, for your free consultation with one of our family law attorneys. Our attorneys have dealt with hundreds of cases where one parent or the other struggles with a child and the set visitation schedules.

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PRIVACY POLICIES

Privacy policies are often an afterthought, especially for new businesses. They’re widely perceived as a pile of boilerplate—a term many mistake as a synonym for “unimportant.” While I’ll save that axe for grinding in another post, I do want to focus in here on the significance of privacy policies and a few tips on how to go about getting them in place.

What’s A Privacy Policy And Why Should You Care

In a nutshell, a privacy policy describes how a business collects, uses, shares, transfers, and stores personal information. The acronym “PII” which stands for “personally-identifiable information” is commonly used in place of “personal information” but there are enough acronyms in life and so I’ll use the phrase “personal information” here.

Note: Personal information includes things like name, address, social security number, credit card number, biometric data (like fingerprints), and more.

Businesses should care about privacy policies if they collect personal information, which nearly every business does, whether from employees, customers, or others. They should care because they may be subject to privacy laws that regulate how they deal with personal information and, regardless of the laws that may apply to them, they may be subject to consumer scrutiny concerning privacy practices.

While privacy regulation in the US still consists of a patchwork of laws, there are no shortage of headlines for companies that have fallen short of societal expectations for safeguarding personal information. For a recent example of this, look no further than the negative response to Zoom’s privacy practices during Covid-19.

What You Need To Know To Put Together A Privacy Policy

Realistically, if you’re creating a custom privacy policy for your business, you’re likely doing it with the help of a lawyer. But that doesn’t mean you get to take your hands off the wheel. You’ll need to help educate your lawyer on how you deal with personal information in order to make the privacy policy tailored to fit your practices.

How Your Business Deals With Personal Information

Remember, a privacy policy describes how a business collects, uses, shares, transfers, and stores personal information. So you need to know how your company does these things (or how it plans to) before you can prepare and implement a privacy policy, whether you do it yourself or with the help of a lawyer. Figuring this out may, depending on the business, require you to talk to people in operations, HR, IT, marketing, legal and more.

Tip: It may be useful to create a data map to help with the process of tracking how personal information is handled.

No matter what tools you use, make sure you’re describing how things are, rather than how you think they ought to be, unless you plan to align your company’s privacy practices with the policy once drafted.

What Privacy Laws And Regulations Apply To Your Business

The US lacks a comprehensive federal privacy law. But the Federal Trade Commission regulates consumer privacy and so you may have obligations at the federal level. There are also certain states—California, with the recent passage of the CCPA, chief among them—that have their own privacy statutes that your business may be subject to. And if you’re collecting personal information outside of the US, you may have to deal with other privacy laws, including, for instance, the GDPR in the EU.

Also, depending on the industry in, the type of personal information you’re collecting, and certain other factors, you could be subject to more niche pieces of privacy legislation. Without going into great detail, if you’re a financial institution, a healthcare institution, or a collector of personal information about children or students, just to name a few, you should work with a lawyer to understand additional privacy obligations you may have.

Whether Institutional Gatekeepers Will Require Privacy Policies

Even if you’re not concerned about privacy laws and regulations, you may have to contend with privacy policy requirements from institutional gatekeepers. A good example of this is for businesses with mobile applications. If you have a mobile app, you’re likely planning to make the app available for distribution through one of the major app stores (i.e., the “institutional gatekeepers”). If so, you’ll find that Apple requires your app to have a privacy policy and Google requires most apps to have a privacy policy.

What You Need To Do To Implement A Privacy Policy

You could have the most comprehensive, beautfully formatted, user-friendly privacy policy out there, but if you don’t implement it correctly, it won’t do you much good. The best practice is to provide real and timely notice when users are given the option (or the requirement) to share personal information. A common example of this is providing a link to the privacy policy wherever personal information is collected.

Tip: It’s a good idea to require your users to acknowledge having read and understood your privacy policy at certain points of collection of personal information.

Keep in mind too that some notices must be delivered in a certain way to be effective; for instance, HIPAA has particular delivery methods that must be followed. This is just one example, though. There are plenty of others that may need to be considered.

Remember also that once you’ve put your privacy policy out there for all to see, you’re telling the world how you deal with personal information. If you, for whatever reason, fail to make good in practice on what you’ve told the world you would do in your privacy policy, the world may not take kindly to that. So it’s important to make sure what’s on paper (or online) matches what happens in practice.

What You Need To Do After Implementation

Implementation should not only be user-facing. Your employees should be aware of and understand their obligations under the policy. And if policies change, they need to change in both writing and in practice, meaning that regular auditing should be conducted. Changes that impact users may also need to be communicated directly to those users (for instance, in the form of an email or a website banner notifying users of an updated policy).

You should also be regularly reviewing and updating your privacy policy to ensure it aligns with your company’s current practices and with any changes in the laws.

Example: In late December 2019 and early January 2020, you probably received a deluge of privacy policy update emails from various large companies. This was in response to the CCPA going into effect, which caused many companies to change their privacy policies.

As part of this, it’s wise to include the privacy policy’s effective date, which should change every time the policy is udpated. That way it’s clear at which points in time the various terms of your policy are in effect.

Finally, it’s a good idea to tell how consumers can contact your business if they have questions or issues regarding your privacy policy or practices.

Takeaways

The biggest takeaway here—that is, once you have a privacy policy in place—is to view your privacy policy as a living document, rather than a template you park in the footer section of your home page and never think about again. If you’re able to view your policy through this lens, you’ll be more likely to review it regularly and revise its terms when your company’s practices or privacy laws change.

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What is a Durable Power of Attorney and How Do You Set One Up?

Setting up a power of attorney (”POA”) is very useful if you anticipate being incapacitated or unable to manage decisions in the future. It’s also a good idea to set up a power of attorney even if you don’t expect anything preventing your decision making abilities in the future. Life is uncertain and you never know what might happen, so, being prepared is key. There are many different kinds of POA. What is a durable power of attorney and how can you set one up?

What is Durable Power of Attorney?

Durable POA is also known as the financial power of attorney or Power of Attorney for Property in Illinois. When setting up a durable POA, you are appointing a trusted person to act in your place to legally make decisions about your financial matters. This can be set for an indefinite amount of time or for a specific period of time. A specific time can be set for periods where you anticipate or know you will be unable to make financial decisions. This can include reasons such as… 

  • Being deployed in the military
  • Having a major surgery with a lengthy recovery
  • Working overseas or offshore for an extended period of time

The most common reason individuals set up a durable power of attorney is in the case of incapacity. Many individuals who are older or are in poor health feel it necessary to set up a financial POA in the case that things go downhill. To learn about the durable power of attorney is Michigan, please feel free to give us a call or send a us note here. Michigan law has a specific procedure for setting up a durable POA, so make sure that you’re protected in the event that you have major life-changing event.

How To Set Up a Durable POA

To set up a durable POA, certain requirements must be met. Having an experienced attorney can help you meet these requirements when filling out the proper paperwork. It is easy for things to slip through the cracks when you’re filling out legal paperwork on your own. Having an attorney who deals with legal paperwork for a living can make sure your request for a power of attorney is successful. What are some of the requirements that your POA must meet?

When setting up a POA, you are known as the principal and the person you appoint as your POA is referred to as the agent. The proper documentation will name who your agent will be and will detail the scope of what their powers will be. It is also required that you properly sign the documents wherever signatures are needed. As with many legal documents, it is required to have one or more witnesses and a notary public. 

If you need help finding the proper paperwork to fill out or have questions about how to fill out the POA forms, contact the Herbert Machnik Law Firm. We are a Kalamazoo and Southwest Michigan Law Firm that specializes in Estate Planning and Probate. Make sure you are taken care of in the event of major surgery or an unexpected accident. You can call us at 269-459-1432 or you can Contact Us here.

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WHAT ARE THE CONSIDERATIONS IN DECIDING TO KEEP THE MARITAL HOME?

It may be surprising, but it is rare that both married partners want to remain in the marital home. If this happens in a court case, a court may look at how the best interests of the children will be served in making this decision. A court may order the house to be sold, although this is always a last resort.

Often, when one party is considering keeping the marital home, it is because of the desire to maintain consistency for their children. It is understandable that parents are deeply concerned about the impact of divorce on their children and wish to keep them in their home, neighborhood, school and community if at all possible.  As lawyers, our concern is that a decision to keep the family home may be a financial hardship, which itself can be harmful to a family.

In a divorce or dissolution, if real estate is going to be retained by one party, a decision must be made about the value of the property.  This can be done by agreement, where both parties feel comfortable with a certain number.  Often, people obtain a real estate appraisal by a certified appraiser or bring in a realtor to provide comparative sales. To determine the marital equity of a home, the fair market value is reduced by any outstanding mortgage to arrive at the marital equity.  (Note, there may also be separate equity if a party used separate money toward the purchase of the house.)

Traditionally, the marital equity is divided equally which will require a payment from the person keeping the house to the other party. This payment may come from savings, or taking  a new mortgage on the property or surrendering one’s right to other assets, such as retirement, as a trade-off for keeping the home value.  Each of these options will impact the financial position of the keeper of the home.  Most financial planners will question the wisdom of someone relinquishing retirement money to keep a house because it is a short term decision impacting one’s long term financial security.  The alternative of borrowing more money may create cash flow problems, as will a depletion of savings.

There are other considerations. If a mortgage is in joint names, which is common, normally the person keeping the house is required to refinance the mortgage so the other party is no longer liable.  This requires lending approval which may be difficult depending on one’s income and the amount of support that is to be received.

Another consideration is when the home equity is determined, normally the costs of sale, including a realtor’s commission are not considered.  Take for example a decision to keep a $400,000 home with a $200,000 mortgage.  The person keeping the home will likely be required to refinance the mortgage.  This may mean a mortgage rate higher than the current loan.  If the spouse is owed $100,000 for his or her equity, the refinanced loan may jump to $300,000, likely causing a higher monthly payment. Then consider after one or two years, the person who kept the home realizes it is not financial feasible and has to sell. If the sale is for less than $400,000, the home owner loses out, and even if it sells for $400,000, the owner will have to pay a real estate commission, probably around $24,000 and the owner is likely to pay for various repairs to place the home on the market and to pass an inspection.  In this scenario, the decision to keep the house may have been costly.

Of course, there is the possibility a house can be sold for more than the agreed upon value, or sold by owner, or with a mortgage at a lower rate.  The point of this article is to explain the factors that should  be considered in making a decision about keeping a home and to assess the amount of risk one is willing to accept.

If both parties agree to sell their home, normally the proceeds are divided equally, meaning that the parties share the real estate commission and all costs of sale, and there would be no reason to appraise the property.

When facing this issue, one must weigh all factors, including the desire to maintain stability as well as the financial impact of this decision. Please reach out to our firm to have one of our experienced attorneys help you with your divorce and property division. You can Contact Us here or call us at 269-459-1432.

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Protect family assets with probate and trust administration

Many Michigan families have significant assets that are valuable. When the head of a household passes on, those assets might wind up in probate court and subject to a judge’s whims and arguments by potential beneficiaries. Fortunately, you can prevent such a potentially painful and divisive family experience by properly designating beneficiaries and establishing a procedure for probate and trust administration.

Assets get frozen upon death

When a head of household or other person passes on, a probate court will freeze those assets to ensure that the estate’s debts are settled. The probate process goes much more smoothly when a trust and legally designated beneficiaries are in place. When they are not, the process can grind to a slow crawl and cause short-term financial hardships that might have lasting consequences for surviving family members.

Financial advisors can smooth over the process

The creation of one or more trusts can preserve financial and other assets and provide clearly designated beneficiaries and the procedures to follow for eventual distributions to them. Legally designated financial advisors can settle any debts left by an estate and present the results to the local probate court. A financial advisor also can demonstrate a trust’s intent and better enable the probate court to settle the final accounts and issue payments and other distributions in accordance with the deceased person’s final wishes.

You may want to learn more about how to protect valuable family assets and speed up the probate process if the unthinkable were to occur and leave your family in a bind. The loss of a loved one and head of household is hard enough on family members. A prolonged probate process makes matters worse but may be avoided with the help of an attorney experienced in probate law.

Please reach out to our Probate and Estate Administration expert, Attorney Benjamin J. Herbert for help with protecting you and your family’s assets. You can Contact Us here, or call us at 269-459-1432.

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How to Find a Child Custody Lawyer in Michigan

Finding the right child custody lawyer can feel like an overwhelming prospect. The end of a marriage is already difficult to navigate. Trying to figure out parenting arrangements only adds twists and bumps to the road.

The ultimate goal is serving the best interests of your child or children. With that in mind, it’s extremely important to find an attorney who can help you determine what is most appropriate for your situation. Here are a few tips for researching and choosing a child custody lawyer in New Hampshire.

Ask for References

Do you have local friends and family, neighbors or coworkers, who have resolved child custody disputes of their own? Ask about their experiences and what they did and did not like about working with their attorney. Sometimes it can be just as helpful to know who people you trust would not work with as it is to know who they would work with. Parents in support groups can also be good sources for attorney referrals.

If you’re looking for more formal recommendations, try the Michigan Bar Association, which offers a lawyer referral service. And consider asking any lawyers you might already know. Even if he or she doesn’t practice family law, it’s likely they can give you the name of a good attorney who does.

Investigate the Attorney’s Reputation

Whether you’ve obtained names from references or are searching for Michigan child custody lawyers on your own, you should always research an attorney’s reputation.

Note that the Michigan Bar Association does provide an online searchable database of licensed attorneys. You can, also contact the MBA to find out if a lawyer is licensed to practice law and is in good standing with the state.

Once you find out the attorney’s standing, look to confirm the intangibles. Every lawyer will claim to be the best in local advertisements—but what’s the word around town? Is he or she not only ethical and sensible, but also compassionate? Those are key assets in this scenario.

Conduct an Interview of the Child Custody Lawyer

Your first meeting with the lawyer who might take your child custody case is an opportunity for an interview. The relationship could last longer than the initial engagement, especially if young children are involved and the case is contested, so you should find out everything you can to feel comfortable before making a decision.

Questions you might want to ask include:

  • What percentage of your family law cases go to trial and what percentage are settled out of court?
  • How much experience do you have with handling my particular type of case?
  • What is your strategy for resolving child custody cases?
  • What is your fee structure like? Do you charge an hourly or retainer rate?
  • What is your communication style? How will you update me about my case?

You owe it to yourself—and your children—to work with a lawyer who understands the complexities inherent in the child custody process. With these tips and some research, you can find an attorney with the combined knowledge, experience, and skill in litigation to safeguard your rights in and out of court.

Please reach out to Herbert Machnik Law Firm and speak to our child custody experts at 269-459-1432 or you can Contact Us here!

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Digital Account and Asset Access

As more pieces of our lives move online, new questions present themselves as we become incapacitated or walk on.

Have you given any thought to who gets your digital music library? Or, if you do all of your banking online, will your guardian/conservator be able to access those accounts and records to take over paying your bills?

The Fiduciary Access to Digital Assets Act, a uniform law now enacted by most U.S. states, was passed in Michigan in 2016. Its aim is to allow fiduciaries (guardian/conservator, trustee, or executor) access to “digital assets” while respecting an individual’s reasonable expectation of privacy in related communications, like email and electronic messages.

This law might be most important to you at present if you are named as a “fiduciary” and need to access such digital information.

What are “digital assets?” The Act defines them as “an electronic record in which an individual has a right or interest.” Think electronic – especially electronic-only – bank accounts, investments, digital music, videos, social media accounts, etc. Neither the act nor the definition give a fiduciary any more ownership or control over an underlying asset – the money in the bank account, for instance – than that representative already possessed. And of course there are platforms and accounts that we have not yet imagined that should be captured by the provisions of this act.

This Act might also prompt you to think about this issue: should your will direct your executor to close (and delete?) all of your social media accounts following your demise? Do you own any cryptocurrency (Bitcoin, Ether or Qtum)?

As we go digitally deeper, consider this from two angles: first, which of your digital assets do you want to make sure your spouse, your executor or your children have access to? Which accounts might you want to make sure no one has access to? Second, might you be a fiduciary for someone else? If so, will you need access to their electronic accounts and records? You might want to talk with them about it.

Please Contact Us here or you can call us to set up an appointment at 269-459-1432. We specialize in Family Law and Estate Planning to help you address situations like the ones mentioned in this blog!