Human Resources and Law

New normal shapes Rhoades’ family law practice

Attorney cites paternity act, marriage equality and declining marriage rates as factors defining current caseloads.

March 3, 2017
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Trends from the past few years involving family matters are making their mark on a local law firm.

Attorney Tom Saxe, chair of the five-member family law group at Rhoades McKee, has practiced law for three decades. He said in family law, as within many other arenas, changes typically come slowly.

But since 2012, a couple of new laws — and a continuing trend — are making for “interesting 21st-century issues,” he said.

“Nothing changes from year to year. The law moves like history; you look for trends over time — unless there is a fundamental change by the Legislature or Supreme Court,” Saxe said.

“The Legislature gave us the Revocation of Paternity Act (2012), and the Supreme Court gave us marriage equality (2015).”

He also mentioned the national marriage rate is declining (6.9 marriages per 1,000 people in 2014, compared to 7.8 marriages per 1,000 in 2004, according to the National Center for Health Statistics).

The Revocation of Paternity Act provides a series of procedures for reversing a past determination of who a child’s father is and sets additional ways of legally establishing who the father is.

Saxe said although cases brought forth under this law are somewhat rare, they are complex and therefore time-consuming “hot” issues.

“At one time, it was close to impossible for somebody who has a child with a married woman to get before the court and claim paternity,” he said. “If a wife has a baby by someone other than her husband and her husband wants to hang in there, the biological father is left out in the cold, because babies born to intact marriages are presumed to be the child of the married father.

“The Revocation of Paternity Act gives fathers not married to the mothers some standing for a paternity case,” although, he noted, often the courts still rule in favor of the husband as the “presumed” father.

Saxe said the Supreme Court’s ruling in Obergefell v. Hodges (2015), which legalized same-sex marriage in the U.S., has had an impact on family law at Rhoades McKee, as well.

Notably, he said, marriage equality translates into divorce equality.

“Marriage equality presents a new opportunity for divorce lawyers,” he said. “Previously, same-sex couples were stuck having partnerships with property in common, and they had very few rights.”

Now, division of property and assets can occur within a legal framework after a divorce.

Saxe said although his firm does not track the divorce rate in West Michigan, people’s perceptions of the national rate being in the 30 to 50 percent range do not take into account the fact the statistics include second and third marriages, which are more likely to end in divorce.

He said a more significant trend for family lawyers is the marriage rate is declining, so division of property in court is less clear-cut when relationships end — especially since unmarried couples still are having children.

“With fewer marriages, family law will involve questions of custody, parenting time and child support, but the property settlements we have in divorces, there won’t be the real estate issues we have with married couples.

“It should get on the one hand simpler and on the other more complicated, where couples who aren’t married don’t get nearly the level of legal protections.”

He said a shift when it comes to adjudication of family law issues is half of the family court judges in Kent County now are female, whereas a few decades ago, there were only about four women in the region’s bar association total, between lawyers, clerks and judges.

Saxe said he sees this play out in the way the court makes judgments that are less defined by traditional household gender roles. Either parent may assume full custody and property is more likely to be divided equitably.

Looking ahead, Saxe said it’s hard to predict what changes may occur. He said with the Trump administration’s mindset on immigration, he suspects more couples may get married if one partner is in danger of having their immigration status questioned or of being deported.

With a recent one-year time limit set by the Michigan Supreme Court on divorce proceedings in court, Saxe said he strongly recommends couples seeking divorce go through mediation before the proceedings, especially if they own a business together or have substantial assets in common.

“If they can go to a mediator before anybody has filed for divorce, that’s a really good thing,” he said. “If people have complicated issues that need to be resolved, do you really want a one-year clock ticking on all those issues? If you and your spouse could go to mediation, once the case is filed, you can deal with the court’s timeline, because you have the major work already done.”

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