Same Sex Case Studies

Wood & Associates PLLC is sharing some of the research on specific cases relating to same sex relations when child custody and parenting time is questioned. Our goal is to help inform our clients and provide them research regarding matters that might hit home.

You can get bankruptcy protection on some Income taxes and student loans.

Some Income Tax Debt MAY be dischargeable under Chapter 7 bankruptcy

if you meet very specific criteria.

  1. The taxes must be for INCOME.
  2. The Income Tax must have been due at least 3 years prior to filing for bankruptcy protection.
  3. The income tax return, even if filed late, must have been filed at least 2 years before filing for bankruptcy protection.
  4. The amount of income tax due must have been verified by the IRS at least 240 days before filing for bankruptcy protection.
  5. If the IRS determined that your tax return was fraudulent, or you were trying to “cheat” your, then they cannot be discharged.

Some Student Loan Debts MAY be dischargeable under Chapter 7 bankruptcy

If you meet qualify for an UNDUE HARDSHIP

There is not a clear test to determine if you qualify for an “undue hardship” that will eliminate your student loans.  You will need to provide proof and evidence to establish each of the following:

  1. You can’t maintain a basic standard of living if you had to pay back your student loans.
  2. You have to show that the hardship will last for a large portion of your payback period.
  3. You have made honest attempts to repay your student loans but are unable to do so.

A more detailed breakdown and discussion of this topic is available at the Us Department of Education’s Federal Student Aid office. Hyper link here. https://studentaid.ed.gov/sa/repay-loans/forgiveness-cancellation/bankruptcy.

The trust is that you would need an very clear, and extreme hardship that would allow  you to qualify for student loan discharge. Usually and almost a requirement, you will have had to suffer an injury or illness that makes it just about impossible for you to work.

However, if you are struggling with repaying your student loans and are considering bankruptcy, you should consult with an attorney because even if you cannot get a full discharge on your student loans, you may get a partial discharge reducing your debt. Or, you may get a restricted deal that makes paying your student loans more manageable.

What debts will I still owe after my Chapter 7 bankruptcy?

In plain terms, Bankruptcy is the process to help individuals in financial crisis get back to sound footing by (getting rid) of debt without paying for it. It’s a safety net for individuals and families to be financially sound and have a chance to secure a sound financial future and eventual retirement.

But, not all debts will be automatically forgiven through a Chapter 7 bankruptcy. Here is a list of the debts that you will still have to pay:

+ Child Support and Alimony

+ ­Tax Debt

+ Costs, fines, and restitution for breaking the law

+ Student Loans

+ injuries you caused while drunk driving or driving under influence of illegal drugs

+ Marital debts that are not considered support*

+ court fees*

+ loans on your retirement plan*

+ debts not discharged in previous bankruptcy order*

There underlined debts above start as non-dischargeable

*These debts may be dischargeable under a Chapter 13 Bankruptcy but are not dischargeable in a Chapter 7 bankruptcy.

Ending Same Sex relations

Marital and Single when Child custody & Parenting time is Questioned
On June 25, 2015, the Supreme Court of the United States decided the case of Obergefell v. Hodges. This decision was 4 separate state cases combined to answer two questions.

First: Are State laws limiting marriage to that between 1 man and 1 woman a violation of the Constituion of the United States? Answer: Yes.
Second: Are States permitted to ignore the valid same sex marriage when the marriage occurred in a State or Country where same sex marriages are valid? Answer: NO, all states must recognized valid marriages from other states.

After June 2015, it was then determined that Michigan and all states, must be recognized as valid for same sex marriage from another state or country. It was also determined that same sex couples married in Michigan were validly married. All marriages must be treated equally.

Same sex marriages are now considered valid anyway they occur in the United States. However, there was one major concern that was not resolved by the Obergefell v. Hodges decision. Particularly, same sex divorce.

Same Sex couples are in an unstable situation, unless an adoption has occurred. The result? Only the biological parent of the child is permitted to seek an order of custody and parenting time. The issue for non-biological parents in a same sex couples, can be corrected using the Equitable Parenting Time Doctrine. HOWEVER, the Equitable Parenting Doctrine only applies to a portion of non-biological parents in this situation. The doctrine requires that BOTH parents were married when the child was born and that the child was born after the parties were married. If the child was born prior to the marriage, and presumably, after the separation of the parties, then the non biological parent could not rely on the Equitable Parenting Doctrine to establish custody and parenting time.

The Court of Appeals of Michigan decided both of these issues:
In the case of Stankevich v. Milliron, Michigan decided that the Equitable Parenting Doctrine would allow the non-biological partner in a same sex marriage – whether valid in Michigan or valid in another State or Country – to seek an award of Custody and Parenting Time, permitted they assumed responsibility to pay child support as well, if ordered.
In the Case of Lake v. Putnam, the Michigan Court of Appeals held that the Equitable Parenting Doctrine can only apply to children that were born during the marriage. (Being born during the marriage is a requirement of the Equitable Parenting Doctrine.) A non-biological parent from a Same sex couple, who had a caring, loving relationship for 14 years, during which a child was born, COULD NOT use the Equitable Parenting Time Doctrine to seek Custody and Parenting Time. There is no constitutional violation as the rule applies equally to same sex couples and heterosexual couples – i.e. a requirement that the parties be married prior to the birth of the child.

A question that has not been fully resolved is: what about custody and parenting for a non-biological same sex parent if the parties get married after the child is born? The presumption is that the Equitable Parenting Doctrine would not apply in such a situation.
These are difficult times for parents involved in same sex couples whether married or not and are finding themselves in a difficult situation involving children that they have loved and cared for dearly.
Summary of Michigan Laws of Same Sex Relationships where children are born:

  • States cannot deny same sex marriage in the state and States cannot deny the validty of sames sex marraiges from another state. Obergefess v. Hodges.
  • Married on or after June 26, 2015 – The Equitable Parenting Doctrine permits either partner to a same sex relationship to assert a claim for custody for a child born during or after marriage.Stankevich v. Milliron
  • Married BEFORE June 26, 2015 – A. IF MARRIED OUTSIDE OF MICHIGAN in a state the legaly recognize same sex marriage – The Equitable Parenting Doctrine permits either partner to a same sex relationship to asser a claim for custody for a child born during or after the marriage. Stankevich v. Milliron B. IF NOT – Then no, cannot use the Equitable Parenting Doctorine to establish custody.
  • MARRIED in MICHIGAN after June 26, 2015. A. CHILD BORN AFTER THE MARRIAGE – Yes the equitable doctrine applies Lake v Putman B. CHILD BORN EFORE THE MARRIAGE – No the equitable Doctrine does not apply as to that child. Lake v. Putman

Uncontested Versus Contested Divorce

Many times, a person will file for a divorce expected that the other spouse will not argue against them. Since Michigan divides marital property as equitable distribution,1 sometimes spouses agreeing can be beneficial to If this is the case, the divorce is considered uncontested. If the divorce continues on, and the parties agree about asset division, property division, spousal or child support, and child custody, the court will not have much involvement and the case may proceed quicker.2
Despite good intentions and a prior history of cooperation, disagreements can occur during divorce proceedings causing a divorce to become contested. A contested divorce can be because the parties don’t agree on one or many things. Many time, one spouse or both may find that the complexity of court proceedings and requirements are too overwhelming or confusing to manage on their own when the divorce is contested. In this case, it may be in the best interest to have an attorney represent your interests and advise you as to Michigan laws regarding property division, child support, spousal support,3 and other issues.
Remember, you and your lawyer are a team. While the lawyer is there to represent your interest, he or she will be relying on you to provide information and the basis for their arguments. Attorneys know that each case is unique, help them to see the facts that will be for and against your position in court.
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1. See Mich. Comp. Laws. § 552.19.
2. Michigan has a six-month waiting period for a divorce when parties have minor children. A motion can be filed to shorten this time, but it will not be shorter than 60 (sixty) days.
3. Formally known as alimony.

Welcome Our Newest Battle Creek Attorney

HILARY M. BARNARD

 

A native of Ludington, Michigan, Hilary graduated from Michigan State University College of Law in May 2017, passed the July 2017 bar examination and was admitted to practice law in the state of Michigan in October 2017.

 

Prior to joining Wood & Associates at the Battle Creek office, Hilary worked for the Department of Licensing and Regulatory Affairs as a business analyst and the Department of Treasury as a law clerk in the Hearings Division. Her experience in Family Law began with Legal Services of South Central Michigan were she worked as a law clerk and staffed the pro se clinic.

 

Hilary has earned her civil and domestic relations mediation certificates, and is listed as a court roster mediator in Ingham County. She holds a Master’s Degree of Music Performance from Michigan State University and a Bachelor’s of Music Education from Central Michigan University.

 

An avid traveler, Hilary has been to seven countries and thirty of the United States. While she looks forward to more adventures, her love of Michigan always brings her back home. Outside of law, Hilary is still an active trombonist and works with a high school band the greater Lansing area.