Changing your relationship status with an estranged spouse on social media to “It’s Complicated” may be an option for spouses who no longer consider themselves a couple: but failing to legally change your relationship status could have larger implications when a party to the marriage dies without a will.

Under Michigan law, when a married person dies without a will, the surviving spouse is entitled to inherit the estate. But what if the spouses haven’t spoken to each other in years? What if the spouses signed a separation decree?

In Michigan, these circumstances are not enough to disinherit a spouse. Under Michigan law (MCL 700.2801), a spouse that is separated, even under a separation decree, still has all of the inheritance rights of a spouse in a cohesive marriage.

Learning that a spouse who has not been in the picture for years may suddenly inherit the assets of a loved one often comes as an unwelcome surprise to family members of the deceased. Family members may challenge the estranged spouse’s right to inherit, but must prove one of the following:

1. There is a valid judgment ending the marriage that is not recognized in Michigan, but recognized in the state where the judgment was issued.
2. The estranged spouse participated in a marriage ceremony with a new person.
3. A proceeding to end the marriage was in place when the deceased passed, but not yet finalized.
4. The estranged spouse is living with a new person, and in a bigamous relationship with that new person.
5. The estranged spouse was willfully absent from the deceased spouse, deserted the deceased spouse, or willfully neglected the deceased spouse.

An agreement between the spouses to break up is not enough to disinherit an estranged spouse. For a person to be willfully absent, he or she must have done something with the intent to bring about his or her absence from the deceased spouse.* In addition, any family member that challenges the right of the estranged spouse to inherit is also tasked with proving that the estranged spouse intended to be both physically and emotionally absent for the requisite period of at least one year.

If you do not wish to leave your estate to an estranged spouse, it is important that you discuss your options with an attorney.

Contact Resnick Law to obtain the assistance of an experienced estate planning law attorney who can help you with all of your estate planning needs.

Author: Amanda Rosenberg, Resnick Law P.C., 248-642-5400
*Lovett v Peterson (In re Estate of Peterson), 315 Mich App 423, 889 NW2d 753 (2016)

Employer protection of proprietary information, trade secrets, and potential liability can often lead some employers to take steps to monitor the electronic communications of their employees. How an employer chooses to do this may sometimes run afoul of the law, and therefore, employers who want to monitor employee communications have to be careful about how they do so.

Michigan is one of several states that limits the kind of information an employer may require an employee to provide regarding his or her private email or social media communication. Specifically, Michigan law prohibits employers from asking employees to provide usernames and passwords for private social media accounts or private email accounts. Employers are also prohibited from retaliating against employees who refuse to give this information, and from failing to hire someone because he or she refuses to provide this information.

Employers are prohibited from gathering and storing information relating to an employee’s associations, political activities, publications, or communications of non-employment activities without the employee’s written consent. The only exception to this prohibition is for activity that the employee engages in at work, on the employer’s premises, and that interferes with the duties of the employee or of other employees. When such records are kept conforming to the exception, the employer is required to keep the information gathered in the employee’s personnel file.

The employer cannot keep a secret file that the employee is not allowed to access. The employer is allowed to keep a separate file if the employee is suspected of being engaged in a criminal activity relating to his or her employment, for example, if the employee is providing the employer’s protected information to a competitor. In that situation, the employer can keep a separate file and only disclose it to the employee after the investigation is concluded or after two years, whichever comes first.

Employers may also generally be required to reveal employee information that may otherwise be protected if the employers are compelled to do so under state or federal law. This can happen if the employee is under investigation by state or federal law enforcement agencies that are seeking the information pursuant to a warrant, subpoena, or other court order.

In many cases, the kind of access an employer has depends on the circumstances and the employee’s expectation of privacy. For example, if an employer informs all employees that it has access to and regularly monitors employee internet history on work computers, the employees arguably have no expectation of privacy on work devices. Employee use of personal devices to conduct work duties may be more difficult for the employer to monitor, although not impossible.

Contact an Experienced Attorney

Striking a balance between security and employee privacy can sometimes be difficult and can lead to legal problems for you as an employer, as can instituting the wrong policies. If you are an employer contemplating employee privacy rules to protect proprietary information or the company image, you need to discuss your approach with an experienced electronic transactions dispute attorney. Contact us at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan, to schedule a consultation.

A person can file for bankruptcy under several different chapters of the Bankruptcy Code. People seeking a clean slate and to avoid having structured payments often chose to file under Chapter 7 of the Code. Generally, a person who receives debts as part of a divorce can discharge that debt as far as the creditor is concerned along with all his or her other eligible debt in a Chapter 7 proceeding. This would practically mean that the person will no longer owe the creditor the debt after the bankruptcy discharge.

However, this move can have negative consequences for the filer’s former spouse. The creditors are not parties to the divorce and do not have to abide by a court’s order for one spouse to take on the debt. Therefore, after the filer’s debt is discharged, the creditor can still seek the debt owed from the other spouse. Because of this, the law allows the former spouse of a person who files for Chapter 7 bankruptcy to continue to pursue payment of the debt from the filer as if the debt is owed to the former spouse directly and not the creditor. Therefore, the debt is not truly discharged.

This means that while the creditor cannot legally sue the filer for a debt discharged in a Chapter 7 bankruptcy, the filer’s spouse can seek to enforce the divorce decree by having the filer held in contempt for failing to pay the debt. In addition, the former spouse can seek enforcement by taking steps such as putting a lien on the filer’s assets in order to ensure the debt is paid.

Additionally, Chapter 7 bankruptcy does not allow a person to discharge debt that is considered support debt following a divorce. This means that debts incurred for child support or marital support payments are not dischargeable in a Chapter 7 bankruptcy even after other debts are discharged.

Filing for Chapter 7 bankruptcy to help manage divorce debt is not necessarily a bad idea in all cases. For example, filing under Chapter 7 can allow a person to free up more money from having to pay the dischargeable debts and use that money to pay the divorce debt. However, there may be a better option to discharge divorce acquired debt under Chapter 13 bankruptcy.

Contact Us for Legal Advice

In order to make the best decision for your situation, or to decide if bankruptcy is right for you, you need to have a detailed discussion with an experienced bankruptcy attorney. For more information about how to deal with debt incurred as a result of a divorce, contact our experienced bankruptcy attorneys at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan.

(image courtesy of Glen McCallum)

The use permit allows Orvana Resources U.S. Corp., a subsidiary of Highland Copper, to drill in a one square mile area in search of copper. In issuing the permit, the DNR neither provided public notice or a public comment period before issuing the permit on Jan. 31.

According to the DNR, any future mining of the minerals under the park would require Highland Copper to get approval from the Michigan Department of Environmental Quality to amend the existing permit.

According to John Pepin, a DNR spokesman, the company is taking steps to reduce the impact of the exploratory drilling on the land surface of the park.

“Any mining that would be potentially proposed in the future would not be conducted on the surface land at the state park,” DNR spokesman John Pepin said in a statement after the permit was made public.

Pepin said any future mining would be by underground methods from land owned by Highland Copper outside the park.

Back in 1945, the public purchased around 2,700 acres of land, now known as the Porcupine Mountains — Michigan’s largest State Park — but according to Michigan law, it isn’t all owned by the DNR.

That’s because land rights and mineral rights are two different things in Michigan and it could potentially be a huge windfall for Highland Copper or other firms seeking to extract nonfuel minerals from the park.

According to the state’s Department of Environmental Quality, Michigan is the 12th largest producer of nonfuel minerals, including iron ore. The DEQ defines surface rights as use of the land for residential, agricultural, recreational, commercial or other purposes.

Mineral rights owners have the power to access those rights and dig on their property, as long as it doesn’t harm the surface land.

Ideally, the DNR would own both the land and mineral rights in the state park, but back in the 1950s only the land rights in some areas of the Porcupine Mountains were up for sale, according to the DNR.

Currently, the 1-by-1 square mile plot where exploratory copper drilling is taking place is, by Michigan law, Highland Copper’s (the mineral owner) right to drill. However, both the DNR and the DEQ are involved in the drilling process.

Both organizations have worked with Highland Copper to make several provisions in order to minimize impact on the land, according to news reports and statements released by the respective state agencies.

“The drill bits are managed by two workers who drill nearly three meters into the soil each time, and it is only done while the ground is frozen in order to not damage the soil,” the DNR’s Pepin said to WBUP, an ABC affiliate in the Upper Peninsula. “But if we do get that warm weather expected this weekend it will be put to a hault.”

According to a press release from Highland Copper, this specific location was chosen specifically because of previous resource extraction that took place in the 1950s, specifically logging.

The logging created paths that are allowing Highland Copper to use existing inroads instead of having to create an entire network of new routes; the mining company plans to drill 12 holes, as well as create three new routes.

The project aims to be completed by the second week in March, if the company wishes to mine in the Porcupine Mountains, it would need to go through a long process.

First, Highland Copper would have to complete a feasibility study, determining whether the amount and quality of copper is worth the cost of extraction. Next it would need to present its plan to the DEQ, followed by public meetings.

Should the process pass those hurdles, Highland Copper would still need to access the park through tunnels and underground land, starting on the land they own; and provided the mining does not affect the surface of layout of the State Park.

Warning, you are at risk of being duped and the Michigan AttorneyGeneral’s office wants to let Michiganders know that debt collection and other credit and financial scams remain the top complaint to the AGs office.

According to a statement released earlier this month from Attorney General Bill Schuette’s office, in 2016, the office received more than 1,200 complaints on that issue.

The other top issues Michigan consumers complained about, in order: Telecommunications and TV, such as robocalls and telemarketing; vehicle complaints, such as disputes with car dealers and repair shops; retail; internet, such as complaints about online purchases; service providers such as tax preparation; landlord-tenant complaints; contractors; health providers; and gas and energy complaints — with gas stations the top complaint.

In the statement, Schuette said, “protecting consumers from scams continues to be one of my top priorities.” The AGs office compiled the top 10 complaints from 2016:

Credit and Financial Concerns

The top complaint category from ’16 remains in the same spot its held for the past 10 years, according to Schuette, generating 1,217 complaints in a variety of areas including: debt collection and reporting, credit repair, payday lending and mortgage brokering.

Schuette’s Consumer Alert on Debt Collection and Debt Collection Scams details prohibited debt collector practices and provides tips on avoiding scams and disputing bogus debts.

Telecommunications, Cable, and Satellite TV

The second largest scam retains its second place spot in as many years. This category includes complaints involving “robocalls,” telemarketing, wireless communications, and cable and satellite TV services.  Complaints in these categories exceeded 700 in 2016.

Motor Vehicle and Automobiles

These complaints were on the ascent, moving up from the No. 4 spot from 2015. Complaints in this category include disputes with used car dealers, which continues to top this category; other complaints involve new car dealers and repair shops.

Retail

Trading positions with autos from the previous year, retail moved to the fourth position in ’16 and includes complaints about general merchandise and furniture stores, business services, eating and drinking places and computer stores.

Internet

Remaining steady in fifth, complaints in this computer-based category numbered nearly 600. The AG’s office said more than a third of these complaints involved online purchases while others included computer communication services and issues with internet service providers.

Personal Service Providers

Staying at No. 6, complaints in this category range from dating services and beauty shops to home security, tax preparations services, and health and fitness organizations.

Landlord and Tenant

Another holdover from the previous year, this category had more than 400 complaints — a majority involved apartment owners and managers.

Contractors

Another ascension in 2016 was complaints about residential building construction services, landscaping services and special trade contractors.

Health Service Providers

This category is surly poised to climb even further and its move upward one spot from 2015 may be a harbinger as the Affordable Care Act repeal comes to realization. The category involves nearly 400 complaints about different health service providers like doctors, dentists, hospitals and medical clinics.

Gasoline, Fuel and Energy

As fuel prices have dropped, so have the number of complaints in this category, which has caused it to drop from last year’s No. 8 spot — complaints against gasoline service stations dominating this category in 2016.

In reality, the Consumer Review Fairness Act (“CRFA”) will help prevent businesses from punishing consumers who post negative reviews by prohibiting so-called “gag clauses” into certain contracts that restrict or penalize consumers who criticize said businesses.

The measure, which is set to take effect March 14, prevents the use of “non-disparagement” clauses in form contracts, specifically those generic, standardized contracts where there’s no real opportunity to negotiate terms.

Think, for instance, of a website where you are asked to check off a box saying, “I accept these terms.” Experts say that while these types of clauses aren’t overly prevalent, they were being utilized by some businesses.

One case making headlines last year was when a pet-sitting company in Texas filed suit against a couple for reportedly posting a poor review on Yelp. The CRFA is supposed to end-run those types of suits by making the contract unenforceable.

The wording of such contracts, some experts have said, is akin to defamation suits without the burden of proof. However, defamation is hard to prove, and the burden is on the plaintiff to demonstrate that the statement is “…a provably false fact that seriously damages someone’s reputation.” Someone’s opinion about a bad experience at a restaurant may hurt business, but isn’t a provably false fact.

Still, the new law doesn’t give consumers license to make false allegations or breach confidentiality obligations. In addition, it doesn’t prohibit a business from suing for defamation or libel in the case of false or fake reviews.

But winning such cases isn’t easy and may not be worth the cost and bad publicity. Instead of such clauses, many experts have suggested that businesses should focus on improving the customer experience to generate more positive reviews.

Naturally, for those who own a home, Homeowners Insurance is essential and designed to protect property, possessions and shield you from liability for accidents. Below is Resnick Law’s “Quick 7” question check-up to make sure you and your assets are properly insured:

     1. Your Risks Have Changed?

You may be paying for insurance you no longer need. On the other hand, you may need more coverage based on your current life. For example, do you have coverage for the current value of your home? Most homes in our area have gone up in value in recent years. (If something happens, insurance that is based on what you originally paid may fall short of what you need.

     2. Review Policy Exclusions

Many people with Homeowners Insurance are devastated when they discover their policy doesn’t cover their particular disaster. For example, hurricane coverage relates to damage from high winds, not high water. If you are flooded, without special flood insurance, you are not covered. (As many homeowners of Oakland County discovered in the summer flooding in 2014.)

     3. Analyze Your Deductible

If you’ve been in your home for awhile, you may be in a position to raise the cash to make common repairs. A well-stocked emergency fund may be a better place to put your money because higher deductibles mean lower insurance rates.

     4. Your Life Has Changed?

If you get married, divorced, have children or send the children out on their own — each of these life events may impact the insurance coverage you need.

     5. Do You Have More Stuff?

Most insurance policies provide some coverage for personal possessions. Take a look around your home and inventory everything you own. Good advice on several fronts, including if a disaster were to occur, but it may also reveal you need higher limits on those personal possessions. Some items, like cash, jewelry and firearms may not be covered at all.

     6. Consider Replacement Costs

Insuring for replacement cost varies from one company to the next. Most require you insure your property up to or at 80-100 percent of the replacement cost. To keep current with the requirement, you must look at the cost of rebuilding frequently. Remember, in the case of a major catastrophe, materials and labor costs will surge, adding to the expense of replacing.

     7. Learn About Open and Named Perils

Generally, your homeowner’s policy covers open perils. In other words, you’re covered for any reason not specifically “excluded” from the policy. On the other hand, named perils provide for specific situations such as fire, explosion, windstorm, theft, vandalism or others.

The time to learn about your insurance coverage is before you experience a disaster. One way to ensure you understand your insurance coverage is to get a check up each year. We are here to help you–ask your Resnick advisor to read through your declaration pages and make sure your assets are properly covered.

The legalization of dispensaries, which was established in a tripartite of bills passed by both chambers of the state legislature and signed into law by Gov. Rick Snyder was spurred by a number of legal questions that had lingered since the state’s original medical marijuana law was approved by voters in 2008.

“This will clean up what’s happening out there with illegal dispensaries and create a legitimate industry in Michigan,” former state Rep. Michael Callton, a Nashville Republican who sponsored the licensing measures, told reporters in an online news conference. “From a patient’s perspective, they now have a safe place to go and buy their medicine.”

The spate of laws affecting Michigan’s medical cannabis market will now provide patients with their greatest access yet to legal pot. Advocates have postulated that it also sets the stage for the next step in the evolution of marijuana use: legalizing recreational marijuana. Conversely, the new laws effectively ceded state uniformity of governance by granting local municipalities the right to decide how much, if at all, the industry can establish a foothold in any one town. Additionally, full legalization advocates fear state officials established a regulatory framework that places limits on the free market and shuts out small-time growers, subsequently passing on higher costs to patients.

“This policy was designed with business interests in mind,” Matthew Abel, one of Michigan’s most prominent marijuana law advocates and executive director of the Michigan chapter of the National Organization for the Reform of Marijuana Laws, said in a recent interview to the South Bend Tribune. “They’re not in favor of (marijuana) but they’re trying to get ahead of the curve so they can implement their system instead of something that’s more free and open.”

The new laws are slated to grant licenses to commercial growers, processors, secure transporters, testing facilities and retail dispensaries. The revised legislation also sanctions the sale of cannabis-infused edible products as well as more potent extracts and oils. The return on investment these new laws offer state and local coffers include the collection of a 3 percent tax on dispensary sales, plus licensing fees from those who take part in the system.

“You’ve got a lot of moving parts taking place,” Michael Komorn, president of the Michigan Medical Marijuana Association, noted in a recent interview on the subject of state regulations regarding marijuana. “To me, it represents a new era of the state unequivocally saying they’re in the business of selling medical marijuana and receiving revenue from it.”

Previously, Michigan had allowed the growing of a limited amount of marijuana, and only by certified medical users or by caregivers who were restricted in the number of patients they could serve. The new laws will create a bigger commercial system, but one that will be strictly controlled. A licensed grower may sell plants only to a processor or dispensary, for example, and patients and their caregivers will be able to buy products only from the dispensaries, rather than directly from a grower or processor.

Participating in the new system will come at what some legalization advocates have complained is a significant cost. While the state has not publically stated what the licensing fee will be, the legislation that set the regulatory structure in motion calls for both a licensure fee and an annual “regulatory assessment.”

Reports have speculated costs for the lowest class of commercial growers, those with 500 plants or fewer, could total $10,000. Dispensaries will also pay a 3 percent tax on gross sales, which is a separate tax than the state’s existing 6 percent sales tax. And players in the new system will take on more costs to pay authorized transporters and testing facilities.

While medical marijuana advocates have complained that additional layers of regulation will become a financial albatross around patients’ necks, cardholders are still be able to grow up to 12 plants for personal use or seek pot from a caregiver. The state says it plans to begin accepting applications for licenses under the new commercial system by December, with the first licenses likely to be issued in 2018.

Gov. Rick Snyder signed a package of bills into law defining how self-driving cars can be used on public roads in testing and commercial deployment, the Michigan Economic Development Corp. said in a statement.

The series of bills allows public road testing of vehicles without steering wheels, gas or brake pedals or any need for human control — an important distinction that aims to propel Michigan ahead of California, a hotbed of driverless car development. (For instance, California rules prohibit the use of fully autonomous driverless cars that don’t have a steering wheel or a brake pedal—like the prototype developed by Google.) It also lays out rules for how self-driving cars can be sold to the public once the technology has been tested and certified.

“Michigan is the global center for automotive technology and development,” Snyder said in the MEDC statement. “By establishing guidelines and standards for self-driving vehicles, we’re continuing that tradition.”

One bill establishes the Michigan Council on Future Mobility, an arm of the Michigan Department of Transportation that will recommend policies to set industry standards. The council will regulate connected vehicle networks and how traffic data, such as vehicle crashes, will be collected and shared.

Michigan business leaders and politicians have been vocal in their efforts to keep Detroit at the center of automaking even as Silicon Valley heavyweights Google, Apple and Uber are accelerating research into robot rides. In preparing the legislation, Michigan lawmakers received input from General Motors Co., Ford Motor Co., Fiat Chrysler Automobiles NV, Toyota Motor Corp., Google, Uber and Lyft Inc., according to the economic development agency, which is financed by public and private funding.

State officials believe Michigan’s new laws will be more attractive to companies involved in development, helping lure research here over California’s more restrictive laws, according to Michigan Department of Transportation Director Kirk Steudle. The MDOT director told Fortune Magazine in an interview that California’s over-regulation is unnecessary.

“We view this legislation as Michigan getting government out of the way of technology and letting it be deployed when it’s ready, but at the same time in a manner that keeps people accountable for keeping people safe on roads,” Steudle said in the interview. “There’s 100 years of history of automobile companies in Michigan putting test vehicles on the road and putting safe vehicles out.”

This increase marks the third step of a gradual 25 percent increase in the minimum hourly wage rate that began in 2014 and will culminate in a $9.25-per-hour rate in 2018.

Public Act 138, the Workforce Opportunity Wage Act of 2014, took effect in May of that year and replaced the Michigan Minimum Wage and Overtime Act. Known as WOWA, the act is enforced through the state’s Wage and Hour Division — an agency within the Bureau of Employment Relations.

The law applies to Michigan employers with two or more employees, age 16 and older. However, a provision in the act allows an employer to pay a newly hired employee, ages 16 to 19, an hourly rate of $4.25 for the first 90 days of employment.

WOWA does permit employers to pay 85 percent of the minimum hourly wage to employees ages 16 and 17. Employers covered by both state and federal minimum wage law must pay the higher of the two rates. The current federal minimum wage is $7.25.

WOWA allows employers to take a tip credit on minimum wage under certain conditions for employees whom customarily and regularly receive tips. According to the State of Michigan website, the following conditions apply to taking a tip credit on the state minimum wage rate:

• The employee is in a position which customarily and regularly receives gratuities from a guest, patron or customer for services rendered to that guest, patron, or customer.

• If the gratuities plus the minimum hourly wage rate do not equal or exceed the minimum hourly wage otherwise established, the employer pays any shortfall to the employee.

• The gratuities are proven gratuities as indicated by the employee’s declaration for Federal Insurance Contribution Act.

• The employee was informed by the employer of the provisions of Act 138.

If a credit is taken for gratuities received by an employee, then the employment records for each pay period must contain the credit that was taken, along with a written statement of the amount of gratuities received by the employee.

The statement also needs to be signed and dated by the employee before the date the paycheck was received.

The minimum hourly rate of pay for a worker subject to tip credit provisions as of Jan. 1, 2017 is:

• Tipped Employee Min. Hourly Wage: $3.38
• Provided Reported Tips Per Hour Average At Least: $5.52

If you have questions regarding compliance or other wage issues, contact Resnick Law’s Business Law practice group attorneys at (248) 642-5400 or click HERE to contact them online.

Businesses in Michigan that pay employees minimum wage should be prepared for the wage’s next round of increases, which are set to take effect Jan. 1, 2017 and increase 40 cents, from $8.50 to $8.90 an hour.

This increase marks the third step of a gradual 25 percent increase in the minimum hourly wage rate that began in 2014 and will culminate in a $9.25-per-hour rate in 2018.

Public Act 138, the Workforce Opportunity Wage Act of 2014, took effect in May of that year and replaced the Michigan Minimum Wage and Overtime Act. Known as WOWA, the act is enforced through the state’s Wage and Hour Division — an agency within the Bureau of Employment Relations.

The law applies to Michigan employers with two or more employees, age 16 and older. However, a provision in the act allows an employer to pay a newly hired employee, ages 16 to 19, an hourly rate of $4.25 for the first 90 days of employment.

WOWA does permit employers to pay 85 percent of the minimum hourly wage to employees ages 16 and 17. Employers covered by both state and federal minimum wage law must pay the higher of the two rates. The current federal minimum wage is $7.25.

WOWA allows employers to take a tip credit on minimum wage under certain conditions for employees whom customarily and regularly receive tips. According to the State of Michigan website, the following conditions apply to taking a tip credit on the state minimum wage rate:

• The employee is in a position which customarily and regularly receives gratuities from a guest, patron or customer for services rendered to that guest, patron, or customer.

• If the gratuities plus the minimum hourly wage rate do not equal or exceed the minimum hourly wage otherwise established, the employer pays any shortfall to the employee.

• The gratuities are proven gratuities as indicated by the employee’s declaration for Federal Insurance Contribution Act.

• The employee was informed by the employer of the provisions of Act 138.

If a credit is taken for gratuities received by an employee, then the employment records for each pay period must contain the credit that was taken, along with a written statement of the amount of gratuities received by the employee.

The statement also needs to be signed and dated by the employee before the date the paycheck was received.

The minimum hourly rate of pay for a worker subject to tip credit provisions as of Jan. 1, 2017 is:

• Tipped Employee Min. Hourly Wage: $3.38
• Provided Reported Tips Per Hour Average At Least: $5.52

If you have questions regarding compliance or other wage issues, contact Resnick Law’s Business Law practice group attorneys at (248) 642-5400 or click HERE to contact them online.