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Legal F.A.Q.

Thank you for your interest in our areas of practice. Please see below for some reflections on common legal questions. The topics areas, in order of appearance, are: Criminal, Family, Business, and Estate.

Criminal

It depends. Factors that the court will take into consideration include whether there was an accident, whether this is your first drunk-driving charge, and other related issues. Typically, a non-accident, first conviction will result in probation and fines upward of $1,000. Your second conviction may or may not involve jail time, depending on how long it’s been since your first conviction; the longer the gap, the less likely it is that you’ll receive jail time. Your third conviction will probably result in jail time, because a third offense is charged as a felony. Regardless of the time frame between your second and third convictions, jail time is almost always going to be imposed.

This also depends on how many convictions you’ve incurred. Typically, a first-time charge will be pled down to an impaired driving charge, which results in immediate license suspension for thirty days; during this time, you will be restricted to driving only to work and a few other locations as deemed appropriate by the Secretary of State. On your second drunk-driving conviction, you have a 90-day suspension, and your third conviction will result in the revocation of your license by the Secretary of State, and you must apply for restoration at a later date.

In addition to the costs and fines associated with license revocation and drunk-driving convictions, it is an expensive and time-intensive process to petition the Secretary of State to restore your license. Ultimately, the restoration of your license will be considered by a commission working on behalf of the Secretary of State. Factors that the commission will consider include the length of time since revocation, evidence of behavioral change, and the recommendation of people who can attest to your changed behavior (including family, clergy, AA counselors, or employers). The process is difficult; even if a good track record can be presented to the commission, license restoration is not guaranteed. It is prudent to retain a lawyer before seeking restoration.

The most important thing you can do is to be courteous. Being polite can save you from receiving additional charges. Some of the most common charges that underlie the main charge for most criminal defendants is a “resisting and obstructing” charge, which could have been avoided had they been respectful to the officer when stopped or detained. This does not, however, mean that you should admit guilt without a lawyer present. For any charge greater than a moving violation, it is wise to explain to the officer that you wish to refrain from making statements without your lawyer present. The worst thing that you can do is fall into the trap that most police officers will set, by trying to get you to admit guilt by being your friend.

As soon as you’re arrested, the officer should read you your Miranda rights, and at that time, you should decline to provide a statement and ask for a lawyer. If possible, state the name of your lawyer and provide his phone number, if you know it, and explain that you will not answer any further questions until he is present. Ask them to call your lawyer and state who you are, where you are, and what you are being charged with. If your lawyer is unavailable, ask the officer to leave his name and number so that the call can be returned.

Business

This is best determined between you, any potential partners, your accountant, and your attorney. There are several alternatives that may facilitate the attainment of your financial goals, business needs, and personal objectives. The differences between an S-corporation, a C-corporation, and a limited-liability corporation are subtle but significant; often, the final decision will be based on the recommendations of your accountant, because the legal differences between each option are modest. Factors to consider include whether you will have partners, whether you want the income to pass through the company to you personally, or whether you want to obligate the corporation to the income and you will draw a salary. For liability reasons, it is prudent to consider avoiding a non-corporate sole proprietorship or partnership.

You are allowed great latitude in deciding how you wish to set up and run your business. Common provisions include capitalization, income distribution, non-competiton agreements, changes in the management structure, and dissolution.

In general, you should consider filing a lein when you have good reason to believe that a client, debtor, or business partner may not “make good” on a contractual agreement. This should be considered a defensive practice – if a person breaks a contract, it’s generally better to consider suing and obtaining a judgment than merely filing a lein after things turn sour. An exception to this relates to so-called construction leins; contractors and sub-contractors should file, as a routine business practice, a lein against the construction materials, with the Michigan Department of Labor and Economic Growth.

After normal attempts to obtain payment on an outstanding debt have failed, a business can seek the services of a collection agency or an attorney. Usually, a collector will assess fees on a per-case or on a percent-of-collections basis. Professional collection agencies have the benefit of dedicated staff to engage in collection efforts; however, a lawyer can file a civil claim if necessary, which can result in a court-ordered money judgment or a lein, or both, and for delinquent accounts, the thought of collection efforts being managed by a lawyer instead of an agency can result in prompt repayment of the debt, as lawyers are considered an “escalation” in the process whereas most agencies are not. Additionally, it can often be cheaper to start with a laywer than to start with an agency, fail to obtain results, and then need a lawyer to escalate with the court system. Individuals seeking debt repayment should consult with an attorney on the prudence of filing a civil suit.

A written contract is imperative for every business transaction. This may be the only document that specifically states what goods or services are being exchanged, for how much, and on what schedule. A court will be reluctant to enforce any agreement that fails to provide for some way to establish what a “reasonable” interpretation of that contract would be; in general, for most business agreements, it’s important to specify the quantity of goods or services to be provided.

Maybe. An oral contract may be enforced if the offended party can prove to the court that they relied on the oral offer, to their detriment, and the offending party somehow benefitted from the arrangement. It’s best to avoid relying on oral contracts – instead, you should retain a competent lawyer and draft a written contract to substantiate your agreement.

It is not uncommon, through the course of business, for the terms of agreement to require amendment. If a contract does require modification, it is best to negotiate the new terms of agreement with all involved parties and their lawyers.

A party to an agreement may fail to deliver on the terms of an agreement in two ways. “Anticipatory repudiation” occurs when the other party informs you that they will be unable to satisfy the obligations of the contract prior to when their obligation is actually due. A “breach of contract” claim arises after the obligation is due. When it’s clear that one party has not, or will not, perform their obligations, the offended party should immediately file suit for damages. These damages can be for out-of-pocket expense or lost revenue, or to compel or prohibit specific performance. One obligation imposed upon the offended party is to mitigate their risk as soon as it’s understood that the agreement has been broken; this includes stopping the manufacturing or delivery of a product or the performance of a service, to prevent further loss of income or increase in expense.

The benefit of a properly formed business entity means that any liability on behalf of the company ceases at the company’s front door, so that corporate liability will only be enforced against the assets of the company and not against its officers or owners. No personal liability will be imposed on a corporation’s employees or members, so long as the debts, obligations, or acts are within the sphere of the company’s operations. Most importantly, this means the owners and their employees personal assets will not be subject to claim against any verdict that may be imposed on the company. If a company is sued, an officer of the court will serve notice to an authorized agent of the company; when such notification is received, the company’s lawyers should be immediately notified.

Family

Parenting time establishes the rights and privileges of a non-custodial parent who has joint physical custody of a minor child. The parameters are set by the court upon issuing a custody order. Important to note: Neither parent may move more than 100 miles from where the child resided at the time of the divorce degree without court order – and this is true even if a parent has legal but not physical custody of the child. Failure to pay child support is never an acceptable reason to deny parenting time.

Michigan is a no-fault divorce state – thus, run-of-the-mill bad behavior by one spouse generally doesn’t factor into a divorce decree, and property will generally be divided 50-50 between the two. However, some factors can contribute to some other court-ordered allocation of assets; these include the length of the marriage, the contributions of the spouses to the marriage estate, the age of each party, and the expected earning ability of each party.

In some circumstances, where there is an inequitable income difference between the two parties to a divorce, it’s possible that one spouse may be required to pay reasonable and customary legal fees for the other. That said, divorce proceedings can be very expensive, particularly when the spouses are feuding, marital assets are substantial, or there are minor children involved. In addition to the typical hourly rate that a lawyer would charge, there are also miscellaneous fees, such as court costs, filing fees, appraisals, etc., that must be paid.

The best way to enforce an order of child support, spousal support, parenting time, or property provisions, is to immediately retain a lawyer. The process can be very complicated, especially for people untrained in family law.

Many years ago, before a divorce may be granted, one spouse would have to prove “fault” upon the other spouse. This “fault” was what one might expect: infidelity, abandonment, domestic violence, etc. Now we simply need to show that there has been a “breakdown of the marriage relationship” and that “the objects of matrimony have been destroyed, there remains no reasonable likelihood that the marriage [could] be preserved.”

In certain cases, Spousal Support (commonly referred to as alimony/palimony) will be allocated to the spouse who is at a financial disadvantage because of the divorce. As such, attorney fees can be one aspect of support that can be provided to the less affluent spouse, by the financially advantaged spouse.

There are two different types of custody: legal and physical. Legal Custody means you have decision-making in raising the child. Physical Custody is who physically raises the child. Within physical custody, you may either maintain sole or joint custody. This means exactly what it sounds, you may or may not share physical custody with your child. Whether you have custody, and what type, is determined by the judge in the “best interests of the child”.

The Michigan legislature, through the Child Custody Act, has set certain guidelines which must be met before custody will be granted. Things like: the love, affection and emotional ties between the parent and child. The ability to provide basic necessities

Estate

In the event that you pass away without a will or trust in place, the State of Michigan has developed procedures for determining how your estate will be handled. This process is called intestacy. This means that your estate will be automatically distributed to your nearest heirs, whether a spouse, child, or parent (in that order), according to rather complex, established allocation guidelines.

A will is a very basic document that will help to implement your final wishes about how your estate is to be distributed. This allows for a charitable gift, a cash distribution to a family member or friend, or the assignment of material assets to specific people. Additionally, you can name a guardian for your minor child, appoint your personal representative, and specify your burial wishes.

A personal representative is the person you choose to carry out the provisions as specified in your will. They have all the legal rights to distribute your assets as you would have, if you were still alive. This person incurs a fiducary responsibility to the proper implementation of your estate-planning wishes.

There are many benefits to implementing a trust document over a simple will. These include different tax obligations, financial continuity, and stronger provisions for minor children. However, for most people, the added privacy is the main benefit. When a will is admitted to probate, it becomes accessible to the public. For a typical charge of $1 per page, anyone can walk into the probate court and obtain a copy of your will. With a trust, the only person who will have access to the information within your estate-planning documentation is the person you have named as your successor trustee. This means that the value of your estate and the scope, nature, and recipients of your gifts, will remain private. Such privacy can reduce or prevent family feuding. Another significant benefit is the avoidance of inventory fees (a fee assessed by the probate court, equal to 2 to 3 percent of your total estate), probate costs, and attorney fees to probate the estate. While the up-front costs of a trust may seem higher than the price of a will, the cost of the trust pales in compaison to the fees and costs imposed by the attorney and the court for probate.

There are two different types of powers of attorney. One is for healthcare, and the other is for banking and finance. A healthcare POA designates for you a patient advocate who is empowered to make decisions about the nature and course of your medical care, including termination of that care, if you cannot make or communicate these decisions on your own. A financial POA enables your advocate to make the same financial decisions that you were authorized to make, if you were able to do so. This includes paying bills, making investments, offering cash gifts, or purchasing or selling assets. This person has a fiducary responsibility to maintain your assets in the same manner by which they would care for their own assets.

A guardian is the person who has legal custody of a minor child or incapacitated adult, and has full authority over the legal, medical, and personal aspects of the care of the person entrusted to their responsibility.

A conservator is similar to a guardian, except that this person has financial rather than legal or healthcare responsibility for the person entrusted to their responsibility.

In theory, your will or trust never expire; however, they can become outdated. This occurs because of changes including marriage, divorce, the birth or death of children, or the acquisition of disposal of signficant assets. With regard to powers of attorney, they do not ordinarily expire; however, not all hospitals or financial institutions may accept very old documents. A review of your estate-planning documents every seven years is recommended. The attorney who drafted your documents will typically perform this review at no additional cost.

Important Disclaimer

The information contained on this page is not intended to serve as authoritative legal advice. Please see the “Conditions of Use” page for additional information.

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