HIGH-QUALITY REPRESENTATION

  Law Offices of RL Johnson PLLC  

     Michigan's Premier Christian Civil Litigation Firm        

39111 Six Mile Road

Livonia, MI 4815

(800) 597-0284

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Frequently Asked Questions

Following are questions that frequently arise in our areas of practice. The questions and answers are--for the most part--particular to Michigan law. The topics include Family Law (including Divorce, Custody, Child Support, and Parenting Time); Probate; Bankruptcy; and, Immigration.

DIVORCE

I just got served with divorce papers, what do I do?

Depending on how you were served, MCR 2.310 gives you 28 days from the date of service to respond.  That said, I’d be happy to take your case and do everything possible to see that you remain in your home.  Further, if you’re disabled and she’s not, you may be entitled to financial support from her.

I would like to get a divorce: Can you help?

Yes. I would be happy to work with you to discover the best way to: (1) secure a divorce that results in a fair and equitable property settlement for you; and, (2) help you devise an actionable strategy for ensuring that your rights in your child are protected.

My wife left me for another guy years ago so now and her whereabouts are unknown. Can I still divorce her?

Yes.  I would be happy to help you secure a divorce. The challenge will be in serving your estranged wife. 

 

That is to say, we will have to ask the court for an order of alternate service, which takes longer than normal.  However, the delay inherent in alternate service can be mitigated by requesting it early in the proceedings.  Apart from that, your divorce should be unremarkable.     

My spouse sued me for divorce, but I never received notice: Is it possible to get the default set aside?

When a judgment, order or adverse ruling is sought against a party who has not made an appearance, it is the duty of the court to determine whether that party is in the military. The Soldiers' and Sailors' Civil Relief Act (“SSCRA”).   The SSCRA was enacted to enable service members (SMs) to devote their entire energy to the defense needs of

the Nation; and to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of SMs during their military service.

 

Thus, it may be possible for me to have to default set aside so that you may litigate issues that affect your property rights.

My husband has taken my children. What can I do?

Your best option is to obtain an ex parte order regarding the custody and support of your child.   Once this is in place, you can seek enforcement of the order under the Child Custody Act if necessary.

 

Alternatively, you can preserve and protect your rights in your children, marital property, and the mutual financial responsibilities that existed before your husband’s left the home through either a divorce action or an action for separate maintenance.   Because you did not mention divorce, I will assume that it’s not your goal at this time.  Therefore, what follows is directed to the need that you expressed. 

 

Married persons may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons.[i]  When the matter is concluded, you will still be technically married, but child custody, support, and visitation will be decided, marital property may be divided [MCL 552.19], and the court may order support for a spouse who requires it.  MCL 552.23(1).     

 

 

[i] Michigan Family Law Benchbook:  Chapter 2: Marriage, Annulment, and Separate Maintenance.

My wife left me and is in a new relationship and I need to file bankruptcy: Can you help?

I would be happy to work with you to discover the best way to: (1) secure a divorce that results in a fair and equitable property settlement for you; and, (2) help you devise an actionable strategy for ensuring that your rights in your child are protected.

 

That said, you should consider filing for bankruptcy before you secure your divorce because—while spousal support is unlikely in a six-year marriage—you may end up with obligations that are not dischargeable in bankruptcy court if you secure a divorce first.  On the other hand, discharging major debts in bankruptcy will reduce the marital estate and minimize the risk that you’ll end up with any financial obligations to your wife or anyone else for that matter.

How do I terminate my child’s father’s parental rights?

What is needed in your case is to initiate a stepparent adoption. To facilitate a stepparent adoption, the biological noncustodial parent must consent to the termination of his parental rights or must have them involuntarily terminated.[i]

 

Basically, there are two (2) requirements that must be met to involuntarily terminate the biological father’s parental rights.  Given the fact that the biological father has not had contact with, paid support, or shown interest in the child should be sufficient to involuntarily terminate his parental rights.

 

 

 

[i] To facilitate a stepparent adoption, the biological noncustodial parent must consent to the termination of his or her parental rights or must have them involuntarily terminated.

 

A noncustodial parent may voluntarily consent to the termination of his or her rights pursuant to MCL 710.43. It simply requires an appearance before a judge or magistrate to execute a Consent to Adoption by Parent (PCA 308), and a Statement to Accompany Consent In Direct Placement (PCA 339). That will result in entry of an Order Placing Child (Step Parent Adoption) (PCA 319), which is a final order, subject to the 21-day appeal period as provided by MCL 710.65. If the adoptee is over 14 years of age, he or she must also sign a Consent to Adoption by Adoptee (PCA 307), pursuant to MCL 710.43(2).

 

Step 2: If the noncustodial parent will not consent, prepare for involuntary termination of his or her parental rights.

 

The standards for an involuntary termination of the noncustodial birthparent’s parental rights, are set forth in MCL 710.51(6). Under the statute, parental rights are subject to termination by the court if both of the following occur:

(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.

(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. MCL 710.51(6).

 

The petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted. Moore v Newton  (In re Newton), 238 Mich App 486, 606 NW2d 34 (1999). Petitioner need prove only substantial failure to comply with a support order for two years prior to filing the petition and is not required to prove the other parent’s ability to comply with the support order because the ability to pay has already been factored into the order. In re Hill, 221 Mich App 683, 562 NW2d 254 (1997); In re Meredith, 162 Mich App 19, 412 NW2d 229 (1987).

 

We never consummated the marriage. How do get an annulment, not divorce?

A court will not grant an annulment based on the parties’ failure to consummate the marriage.  Here’s why. 

 

 Annulment is a judicial determination that a valid marriage did not occur. Complaints for annulment are filed when a marriage ceremony or a common law marriage took place, but the marriage is invalid for some reason recognized by law.  See MCL 552.1 (consanguinity or affinity violations, polygamy, and not capable in law of contracting) and MCL 552.2 (non-age, force or fraud). The action is one to obtain a judgment declaring the purported marriage void or invalid.

My child’s father wants to sign off on her. Can he do this?

While this may be legally permissible under certain circumstances (e.g., to free the child for adoption, say, by a step parent), the court will deny such a petition unless doing so is in the best interest of the child.  The first step is to discern the principal reason for wanting to terminate the father’s rights.

My wife left me for another guy years ago so now and her whereabouts are unknown. How do I divorce her?

I would be happy to help you secure a divorce. The challenge will be in serving your estranged wife. 

 

That is to say, we will have to ask the court for an order of alternate service, which takes longer than normal.  However, the delay inherent in alternate service can be mitigated by requesting it early in the proceedings.  Apart from that, your divorce should be unremarkable.     

I need a divorce, all the bills are in my name, and my husband won’t help. Can I get relief?

Yes.  It is more likely than not that the debt is marital debt and that your husband will have to help you pay them off.           

 

That is to say, Michigan has two specific statutes that are exceptions to the general rule that the Court must retain separate property to the owner spouse (this includes debt).  The exception that applies to your circumstances is where the claimant spouse contributed to the acquisition, improvement or accumulation of the property.  MCL 552.401.

How do I terminate my child’s father’s parental rights?

What is needed in your case is to initiate a stepparent adoption. To facilitate a stepparent adoption, the biological noncustodial parent must consent to the termination of his parental rights or must have them involuntarily terminated.[i]

 

Basically, there are two (2) requirements that must be met to involuntarily terminate the biological father’s parental rights.  Given the fact that the biological father has not had contact with, paid support, or shown interest in the child should be sufficient to involuntarily terminate his parental rights.

 

 

[i] To facilitate a stepparent adoption, the biological noncustodial parent must consent to the termination of his or her parental rights or must have them involuntarily terminated.

 

A noncustodial parent may voluntarily consent to the termination of his or her rights pursuant to MCL 710.43. It simply requires an appearance before a judge or magistrate to execute a Consent to Adoption by Parent (PCA 308), and a Statement to Accompany Consent In Direct Placement (PCA 339). That will result in entry of an Order Placing Child (Step Parent Adoption) (PCA 319), which is a final order, subject to the 21-day appeal period as provided by MCL 710.65. If the adoptee is over 14 years of age, he or she must also sign a Consent to Adoption by Adoptee (PCA 307), pursuant to MCL 710.43(2).

 

Step 2: If the noncustodial parent will not consent, prepare for involuntary termination of his or her parental rights.

 

The standards for an involuntary termination of the noncustodial birthparent’s parental rights, are set forth in MCL 710.51(6). Under the statute, parental rights are subject to termination by the court if both of the following occur:

(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.

(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. MCL 710.51(6).

 

The petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted. Moore v Newton  (In re Newton), 238 Mich App 486, 606 NW2d 34 (1999). Petitioner need prove only substantial failure to comply with a support order for two years prior to filing the petition and is not required to prove the other parent’s ability to comply with the support order because the ability to pay has already been factored into the order. In re Hill, 221 Mich App 683, 562 NW2d 254 (1997); In re Meredith, 162 Mich App 19, 412 NW2d 229 (1987).

 

CHILD CUSTODY & PARENTING TIME

We’re already divorced, the court awarded me child support--which he's not paying-- and gave him joint custody. He’s not taking good care of the kids when they’re with him: Can I just stop sending them to their dad?

No. I strongly recommend following the existing custody order found in your divorce decree.  Indeed, you have not alleged that the children are at risk of harm while in the father's care. 

 

Limiting the father's parenting time requires a motion to change custody or to modify parenting time.  However, this may only be done if you can show that the circumstances effecting your children's wellbeing has materially changed since the entry of the judgment of divorce. 

 

If you believe that the circumstances effecting your children's wellbeing have changed since the entry of the judgment of divorce, you may seek a change of custody or a modification of parenting time. 

 

This could get ugly and you don’t want to put your children through that unless it’s absolutely necessary.  On the other hand, the father has an obligation to pay child support.  If he's stopped paying, then you need to trigger enforcement by filing a motion to show cause why he should not be held in contempt of court.  This should be done immediately.

How do I adopt my niece and nephew?

The remedy is a direct placement adoption.  While there are numerous legal steps, the process involves the biological parent voluntarily relinquishing his/her/their parental rights for the purpose of adoption by executing an adoption consent or release.  See MCL 710.22(l), (u).

How is child custody determined?

The Child Custody Act authorizes a trial court to modify child custody and parenting time orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c).

 

To have the custody arrangement modified, the movant must present clear and convincing evidence that the modification is in the best interests of the child. Thompson v Thompson, 261 Mich App 353, 683 NW2d 250 (2004).

 

That said, a change of custody (e.g., from primary to joint) is less substantive than an increase in parenting time because a change in custody does not necessarily mean that you will have more overnights with your child.  For instance, many parents have joint custody, but only get 75 overnights per year.

 

In general, 12 best interests factors [MCL 722.23] and 9 parenting time factors [MCL 722.27a(6)] are relevant in modifying parenting time provisions.

 

Thus, we must evaluate whether there has been a change of circumstance or proper cause to warrant asking the court to permit you more time with your child.  For instance, The a court may appropriately weigh the needs of a child to spend adequate time with the noncustodial parent.  See for example Deal v Deal, 197 Mich App 739, 496 NW2d 403 (1993).

The mother has full custody, but she’s destroying their religious beliefs and interfering with my parenting time: Can I get custody?

In your case, the mother is the primary custodian of the children. Consequently, the court may only modify the present custody arrangement if there’s clear and convincing evidence that a change in custody is in the children’s best interests.  Indeed, this is a determination that is made for each of your two children.

 

The court is required to find that, in the examination of all of the custody factors, there is clear and convincing evidence of a compelling reason for a change in custody.  The fact that the mother is destroying their religious beliefs and interfering with your parenting time are facts that could weigh in your favor.  Additionally, the court will consider the reasonable preferences of the children.  That is, if the children want to live with you this too could weigh in your favor.

 

That said, you’re potentially looking at a full-blown custody battle wherein the best interests of your child will be decided. However, you may be required to participate in conciliation as a first step in many Michigan counties.

The mother left household and our four-month-old baby. We’re not married and we’ve never been to court. I’m unemployed. What’s my first step?

Because there’s no existing order of custody you need to initiate a custody action.  Of course, this will mean that, if you’re not awarded sole physical custody, you’ll have to pay child support.  However, if you want to protect your rights, this is where you must begin. 

 

Given the fact that your baby is only four months, the court may presume that the newborn belongs with the mother.  Indeed, if you’ve never had overnights alone with your child, this result is inevitable.  This will mean that you will end up getting visitation with your child and being ordered to pay child support.  Additionally, because you’re unemployed, it is advisable to determine before you file what your child support will be.  This is an analysis that I can perform for you.

We’re divorced. I live in Michigan. I just accepted a job in Kentucky. It starts immediately. The order says he gets parenting time every other week. Can I leave with my son?

I trust that there is a “100-mile rule” in your divorce judgment.  Consequently, you’ll need to file a petition to change the child’s legal residence.  This is—I believe—a better course of action than moving for full custody.

 

Before permitting a legal residence change otherwise restricted by the 100-mile rule, the trial court must consider five factors, “with the child as the primary focus” in the deliberations:

 

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

 

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

 

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

 

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

 

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

 

MCL 722.31(4).

I want to know how I can get primary residence.

First, in order to change custody the court must be provided with clear and convincing evidence that the change is in the child’s best interest.  That fact that the father doesn’t want to pay child support isn’t enough.  You will need more and better evidence than that. 

 

Second, you can get an order for support for your other child by filing a Motion to Show Cause.  This will force the father to show why he should not be held in contempt of court.

How do I protect my child from his father who uses and sells drugs and keeps guns in the house?

What’s required is a Motion for Supervised parenting time, which appears to be justified in your case.

 

That is to say, the Michigan Parenting Time Guidelines contain a presumption in favor of parenting time. Because of this presumption, supervised parenting time should only be ordered when other, less restrictive methods of ensuring a child’s wellbeing during parenting time cannot be implemented. The primary purpose of supervised parenting time is to provide for the safety of the child.

 

Given the danger and inappropriate conduct (i.e., drugs, guns, etc.) in the father’s home, it appears that the children’s wellbeing is at risk in the father’s home.

PROPERTY DIVISION

What will happen to my retirement plan in our divorce?

Before entering a judgment of divorce, the court is required to make a determination of the rights of each party in pension, annuity, or retirement benefits, including early retirement benefits; contributions to a pension, annuity, or retirement plan; and contingent rights in unvested benefits.

Wanting to separate and needing to divide finances.

Property division in Michigan is done on the basis of equitable distribution. The law doesn’t require that property awards to each party be precisely equal; however, the presumption is that the division will be roughly equal. A court must clearly explain, if it deviates from this presumption of equality, the reasons for its deviation.

 

A trial court’s first consideration when dividing property in divorce proceedings is the determination of which assets are marital property and which assets are separate property. Byington v Byington, 224 Mich App 103, 568 NW2d 141 (1997). Courts may decline to divide marital property on a 50/50 basis, depending on the presence or absence of equitable factors such as contribution and need.

 

The identification of what property is separate and what is marital can significantly affect the outcome of a case. Just because property is determined to be separate does not protect it from distribution by the court. Several statutory exceptions exist that permit the trial court to invade a party’s separate estate.

 

Realizing that this may be appear somewhat complicated, I will be happy to help you sort it out and achieve the best possible result. 

CHILD SUPPORT

I have full custody. She has parenting time, but she’s never around. What can I do where my child support is so high that I can't keep my head above water?

Two things:

 

First, because it appears that there is a custody order in place I am unclear as to why parenting time is not prescribed and if it is why the mother is not obeying.

 

Second, the FOC will ask the court to change the required monthly support payment if the difference between the current support amount and the amount determined by the standard child support formula (using the parties’ most recent income data) is at least 10 percent or $50.00 per month, whichever is less.  If the difference between the current support amount and the current formula amount is less than that minimum threshold, the FOC is not required to request a change.  Also, if your last FOC evaluation was within the last 180 days, you must show changed circumstances to request a reevaluation.

 

If you believe that your present financial circumstances place you within the above threshold, I’d be happy to file a motion for you to modify the amount of your child support.

I’m out of work. How do I lower or eliminate my arrearage payments?

The FOC will ask the court to change the required monthly support payment if the difference between the current support amount and the amount determined by the standard child support formula (using the parties’ most recent income data) is at least 10 percent or $50.00 per month, whichever is less.  If the difference between the current support amount and the current formula amount is less than that minimum threshold, the FOC is not required to request a change.  Also, if your last FOC evaluation was within the last 180 days, you must show changed circumstances to request a reevaluation.

 

Given your lack of employment, your present financial circumstances will likely place you within the above threshold.  Nonetheless, it is advisable to determine before you file what your child support will be.  This is an analysis that I can perform for you.  Moreover,

 

I’d be happy to file a motion for you to modify the amount of your child support.

The state waited years to try to collect back support. Can I invoke latches to erase my back support?

You can’t invoke an equitable doctrine (like latches) to overcome a valid support obligation.  Your only remedies are to seek cancellation, reduction, or an installment plan.

I’m in arrears. I received a notice to appear for a “Show Cause” motion. What’s that?

You must appear to answer the Show Cause motion.  Failure to do so will result in the issuance of an arrest warrant.  However, once you’re in court, you can seek to secure a payment plan for the arrears and ask the court to reduce the amount of support that you pay moving forward so that your support is more in line with your income. 

Today, the court denied my request for a refund. I just paid off my arrears when the friend of the court garnished my tax refund. How do I get my overpayment back?

Refunds are not granted.  A credit is more likely.  In Michigan, there is case law that provides that there is no requirement to credit a Payer for an overpayment of child support and many jurists will stick to this rule.  However, I have seen judges order the credit anyway.  Thus, if your hearing was before a referee, you need to enter a timely objection to the referee’s recommendation.

I just want to pay a fair amount of child support.

As you may know, in Michigan, the amount of child support is governed by an algorithm (aka the “Guideline”) into which the parties’ incomes (among other things) is factored.  There are, however, overrides that permit the court to stray from or override the Guidelines. It is unclear whether any of these overrides apply in your case.  Further, every 180 days you can ask the Friend of the Court to review your child support in light of the Guidelines.

 

The FOC will ask the court to change the required monthly support payment if the difference between the current support amount and the amount determined by the standard child support formula (using the parties’ most recent income data) is at least 10 percent or $50.00 per month, whichever is less.  If the difference between the current support amount and the current formula amount is less than that minimum threshold, the FOC is not required to request a change.  Also, if your last FOC evaluation was within the last 180 days, you must show changed circumstances to request a reevaluation.

 

If you believe that your present financial circumstances place you within the above threshold, I’d be happy to file a motion for you to modify the amount of your child support.

Can’t I just ignore this child support warrant?

No.  You have to respond as soon as possible.  Generally, you must pay a bond.  State law requires that the court set the bond at $500 or 25% of the support arrears, whichever is greater.  However, you may be able to make a “good-faith” bond.[i] 

 

Additionally, you will have to appear before the assigned judge. 

 

The court may find you in contempt if the court finds that you are in arrears and that either (1) you have the capacity to pay all or some of the amount due through the exercise of diligence, MCL 552.635(1), (2) you have the capacity to pay out of currently available resources, MCL 552.633(1), or (3) you have failed to participate in a jobs program after being referred by the Friend of the Court.

 

You should contact me so that I may evaluate your situation and help you devise a strategy.

 

 

[i]In a bench warrant, the court must require that, on arrest, unless the payer deposits a bond or cash in the manner required by MCL 552.632, the payer must remain in custody until the time of the hearing. MCL 552.631(2). The bond or cash amount must be set at not less than $500.00 or 25 percent of the arrearage, whichever is greater, and the court may add costs to the amount of the required deposit. Id. Except for good cause shown on the record, the court must order the payer to pay the costs related to the hearing, issuance of the warrant, arrest, and further hearings. MCL 552.631(3).

 

PROBATE

My uncle’s showing the early signs of dementia. When can a guardian be appointed?

A guardian may be appointed for an adult who is alleged to be incapacitated only if the court is satisfied by clear and convincing evidence that the proposed ward is “incapacitated” and that the appointment is necessary to provide continuing care and supervision of that individual. MCL 700.5306(1).

 

An incapacitated individual means “an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.” MCL 700.1105(a).

SMALL BUSINESS

What are the key considerations for starting a business?

Aside from capitalization, marketing, and management challenges the two crucial issues you will face in your start-up are:  (1) minimizing personal liability; and, (2) minimizing tax liability.

The Township is over zealously attempting to regulate my private property.

This could be a tough nut to crack:  Here’s why:

 

Township ordinances are presumed to have a reasonable relation to a permissible governmental purpose[[i]] where they’re aimed at the protection of the health, safety, and welfare of persons and property within their communities under the township ordinance act.[[ii]]

 

Therefore, a court is only required to determine whether an ordinance is reasonable and serves a public purpose.  Further, a court will not substitute its judgment for that of the Townships'; Rather, a court will determine whether the Townships' conduct is “within the range of conferred discretionary powers and then determine if it is reasonable.”[iii]  Consequently, if a court finds that the Townships' conduct is unreasonable or outside the range of its conferred discretionary powers, a court may find that the private interest to be benefited predominates over the asserted public interest.

 

 

 

[i] Horton v Kalamazoo, 81 Mich App 78, 81; 264 NW2d 128 (1978).

 

[ii] “We hold that townships have the authority to regulate boat docking and launching for the protection of the health, safety, and welfare of persons and property within their communities under the township ordinance act.”  Square Lake Hills Condominium Association v Bloomfield Township, 437 Mich 310; 471 NW2d 321 (1991).

 

 

[iii] “We are therefore required to determine whether ordinance 753 is reasonable and serves a public purpose. 12 Ordinances are presumed to have a reasonable relation to a permissible governmental purpose. Horton v Kalamazoo, 81 Mich App 78, 81; 264 NW2d 128 (1978). We will not substitute our judgment for that of the city's officials, but rather will determine whether the city's proposed conduct is “within the range of conferred discretionary powers and then determine if it is reasonable.” [Page 635] Square Lake Hills Condominium Ass'n v Bloomfield Twp, 437 Mich 310, 317; 471 NW2d 321 (1991). Although we assume the validity of the public interest advanced by the city, we find that the private interest to be benefited predominates over the asserted public interest. The asserted public interest therefore does not justify the proposed taking of private property by the city.”  City of Lansing v Edward Rose Realty, Inc, 442 Mich 626; 502 NW2d  638 (1993).

 

My tenants have stopped paying rent.

Following is a summary of what needs to happen to regain possession of your property and how you can proceed from there.

 

  • Each reason for eviction has a specific amount of time that MUST pass before the landlord may commence a lawsuit—either 24 hours or 7 days or 30 days.  A 7-DAY NOTICE is required to evict a tenant for nonpayment of rent. 

 

  • Once the eviction notice is prepared, it must be properly delivered to the tenant. The eviction notice MUST be delivered to the tenant.

 

  • The eviction notice is not the same as an Order of Eviction. A tenant is not required to move when the eviction notice expires as s/he may have a valid defense to the landlord’s reason for eviction. Expiration of the 7- day time period only enables the landlord to file a lawsuit.

 

  • If the eviction notice has been properly delivered and the 7- day time period has passed, the landlord may commence a lawsuit—known as a Summary Proceedings action.

 

  • Even if the landlord wins the lawsuit for eviction, the court cannot issue an Order of Eviction for at least 10 days. This allows time for the tenant to appeal the decision; it allows time for the tenant to cure by paying the rent owed if that was the reason for eviction, and it allows time to work things out by agreement. Only after waiting 10 days can a prevailing landlord request that the judge issue an Order of Eviction. However—even then—Michigan law does not allow the landlord to forcibly remove the tenant or the tenant’s property.  Only an officer of the court, by a judge’s order, can remove the tenant and tenant’s property from the rental property; and that officer is generally the sheriff or someone from the sheriff’s office. This is called executing the Order for Eviction, and there is little the tenant can do but start packing.

 

FINALLY,

 

  • In addition to regaining possession of the rental property, the landlord may be able to persuade the judge (or jury) that s/he is entitled to a money judgment. The judge may award the landlord a money judgment for such things as unpaid rent, unpaid utilities, damages to the rental property beyond reasonable wear and tear caused by the tenant, and any other damages incurred because of the tenant’s violation of the lease agreement.

 

  • Once a money judgment is awarded, the prevailing party, through a lawful collection process, can garnish wages, garnish bank accounts, and garnish tax refunds. The prevailing party may also be entitled to another remedy—executing the money judgment against personal property (a car, fine jewelry, collectibles, and the like)

 

BANKRUPTCY – DEBT COLLECTION

I’m missing a lot of work due to family illness and my bills are piling up. Do I need to file bankruptcy?

While bankruptcy (“BR”) may be your only option, I can help you determine if there’s another way out.

 

That is to say, in additional to assessing your eligibility to file Chapter 7, our evaluation consists in three (3) parts:

 

  • What are the consequences of doing nothing?

  • Is it possible and economically feasible to negotiate with your creditor(s) so as to avoid the need to file bankruptcy?

  • What will your financial picture look like after bankruptcy?

 

If it turns out that BR is the only solution to your problem, there are several things that you’ll need to do in preparation for filing the BR petition to ensure that your petition doesn’t get dismissed.

 

Thus, the place to start is a careful evaluation of your situation in light of the new changes in the bankruptcy code.  This will help fix the timing and precise manner of your filing.

After six years my wife left me and is in a new relationship. Also I need to file bankruptcy.

I would be happy to work with you to discover the best way to: (1) secure a divorce that results in a fair and equitable property settlement for you; and, (2) help you devise an actionable strategy for ensuring that your rights in your child are protected.

 

That said, you should consider filing for bankruptcy before you secure your divorce because—while spousal support is unlikely in a six-year marriage—you may end up with obligations that are not dischargeable in bankruptcy court if you secure a divorce first.  On the other hand, discharging major debts in bankruptcy will reduce the marital estate and minimize the risk that you’ll end up with any financial obligations to your wife or anyone else for that matter.

I’m a single mom. I can't afford to get my wages garnished. Will bankruptcy prevent wage garnishment?

Yes, assuming you’re eligible to file.  However, there are a number of steps that you must take before we can file your bankruptcy petition.  That said, once filed, your creditors must cease all collection activity and within a few months you should receive a discharge that will afford you a fresh start.

I have difficulty paying bills due to a work slow down. Is bankruptcy my only option?

Not necessarily.  Some debt is uncollectable.  Some creditors agree to accept a smaller, lump sum payoff.  Some debtors and creditors enter into installment agreements.

 

While bankruptcy ("BR") may be your only option, I can also help you determine if there's another way out.  That said, if it turns out that BR is the only solution to your problem, there are several things that you'll need to do in preparation for filing the BR petition to ensure that your petition doesn't get dismissed.

 

Thus, the place to start is a careful evaluation of your situation in light of the new changes in the bankruptcy code. This will help fix the timing and precise manner of your filing.

Do I need to file bankruptcy before my wages are garnished?

It depends on the facts and circumstances of your case.  For many people in your situation, bankruptcy’s (“BR”) the only option. I can also help you determine if there’s another way out.  For instance, the debt may uncollectable or the creditor may agree to a smaller, lump sum payoff, or you may enter into an installment agreement.

 

That said, if it turns out that BR is the only solution to your problem, there are several things that you’ll need to do in preparation for filing the BR petition to ensure that your petition doesn’t get dismissed.

 

Thus, the place to start is a careful evaluation of your situation in light of the new changes in the bankruptcy code.  This will help fix the timing and precise manner of your filing.

IMMIGRATION

How do I bringing a student from Japan to study English?

To qualify for an F-1 student visa, the student must have been accepted at a school approved by the U.S. government.  The student you must be also coming to the U.S. as a bona fide student pursuing a full course of study.  The student’s intended school program must lead to an objective such as a degree, diploma, or certificate.

How do I get a fiancée visa for my girlfriend?

There are two (2) ways to secure a fiancée visa.  First, you can marry her in her home country and apply for family-based visa upon your return. As a citizen of the United States, you may help a relative become a lawful permanent resident of the United States by obtaining what is often referred to as a “green card.” To do so, you need to sponsor your relative and be able to prove that you have enough income or assets to support your relative(s) when they come to the United States.

 

The second method requires you to apply for a fiancée visa while your fiancée is overseas so that you can marry in the United States. This visa lets your fiancée enter the United States for 90 days so that your marriage ceremony can take place in the United States. Once you marry, your spouse can apply for permanent residence and remain in the United States while USCIS processes the application.

I’m from England. My visa expired before I married my husband who is a U.S. citizen. How can I get a green card?

Because you are married, your husband (as a citizen of the United States) can help you become a lawful permanent resident of the United States.  To do so, he needs to sponsor you and be able to prove that he has enough income or assets to support you.  This may also be done while you are overseas.

 

Of course, your immediate problem is that you are illegally present. Consequently, USCIS will not entertain a visa application unless you secure a new waiver. Thus, unless there is way to overcome removal (aka deportation).  Your best strategy may be to have your husband file an I-130 after you return to England.

I have a communicable disease. What bearing will this have on my up coming visa interview?

As you may know, without a medical waiver, you will be deemed inadmissible on medical grounds.  That is to say, the primary medical grounds of inadmissibility are tuberculosis and HIV (AIDs).  Some medical grounds of inadmissibility can be overcome with treatment or by applying for a waiver. If you need a medical waiver, you will be given complete instructions by the consulate at the time of your interview, but should also consult an experienced immigration attorney.

I’d like to marry my fiancé the next time that I come to the U.S. How do I get a K-1 visa?

As you may know, this is a fairly straightforward process that takes anywhere from 6 to 8 months.    

 

The process begins by filing a petition with the Immigration Service (aka USCIS).  

 

However, prior to filing the petition you must be sure that:

 

  • the petitioner is a U.S. citizen.

  • You intend to marry within 90 days of entering the United States.

  • You and your fiancé are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.

  • You met each other, in person, at least once within 2 years of filing your petition. There are two exceptions that require a waiver:

 

a. If the requirement to meet would violate strict and long-established customs of your or your fiancé’s foreign culture or social practice; or,

b. If you prove that the requirement to meet would result in extreme hardship to you.

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DISCLAIMER: All information contained in this website is for education purpose only. Law Offices of RL Johnson PLLC, its agents and affiliates cannot and will not render any legal or tax advice of any kind, unless said agent is duly licensed by the applicable state and/or federal authority to give said advice.

 

© 2012 by Law Offices RL Johnson PLLC