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Areas of Practice

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Pre-nuptial agreements are not just for the wealthy. People who have had prior marriages, those with children, business owners, pre-existing debt or assets of any value (financial and/or sentimental) may need a pre-nuptial agreement. A pre-nuptial agreement is a contract between two persons. The contract must be in writing and should provide guidelines for property division in the unfortunate case of death or divorce. Pre-nuptial agreements can also be a tool or component of a larger estate plan which could include a will, trusts, power of attorney and or power of attorney- health care.

As long as there is no fraud, or duress, the agreement is fair and made with full disclosure of assets, it will be enforceable.  Pre-nuptial agreements are not ordinary contracts. Mistakes in preparing for drafting and executing the document can lead to intentions not being met.  Contact me for assistance in drafting a pre-nuptial agreement.

Michigan Post-nuptial Agreements (Anti-nuptial Agreements)

Sometimes circumstances change and the need for an agreement arises after a couple is married. Agreements entered into after marriages are called post-nuptial or anti-nuptial agreements. Post-nuptial or anti-nuptial agreements are drafted with the same intent as pre-nuptial agreements.

Divorce

Seriously considering a divorce? There are certain things you should know. A husband and/or wife should seriously consider the consequences of divorce and seek counseling prior to initiating a divorce proceeding. Particularly when there are children involved.

Once the decision is made, one must prepare for divorce. If the couple is able to talk about the divorce, I recommend that they do. Talking to each other and making preparations prior to initiating and during a divorce proceeding, will save time, money and anxiety.

Preparation includes, gathering information regarding personal and real property, income, retirement plans, insurance policies, trusts, employment benefits, job skills, educational achievements, work history and debts. Remember that divorce affects everyone around you. Preparation also includes informing family members and close friends that you are going to get a divorce.

Divorce in Michigan is a no- fault event. There is no such thing a “contested” divorce in Michigan. If one partner wants a divorce, the court has jurisdiction, and there is proof that there has been a break down in the marital relationship to the extent that the bonds of matrimony has been destroyed, a divorce will be granted (Michigan Revised Statues – Section: 552.6). One spouse cannot prevent the other from getting a divorce.

Michigan is a marital property, equitable distribution state. The first thing to consider is what may or may not be marital property. In most cases marital property is subject to division while separate property is not. Equitable distribution does not always mean equal distribution. The intent is to divide property in a “just and reasonable” manner (Michigan Revised Statues – Section: 552.19). While fault is not an issue in getting a divorce, fault may be considered in the division of property, whether there will be any spousal support and a factor in determining custody of minor children. It is wise to consult with an attorney to discuss the types of property owned and the likely disposition of that property after divorce.

Spousal Support

Spousal Support, formally known as Alimony, is alive and well in Michigan.  There is no hard and set formula for the award of spousal support. There are factors considered while determining whether spousal support should be awarded as well as the amount and length of time. Those factors include length of the marriage, health and education of the parties. Also considered is the age of the parities, ability to pay spousal support, and the prior standard of living.

Spousal support can be modifiable or non-modifiable. If the judge orders spousal support it will ne modifiable. If there is a change in circumstances the order can change. If there is an agreement to award non-modifiable spousal support. This type of spousal support is typically for a specific timer and for a specific amount. Be cautioned that if there is a change in circumstances, there will be no change in spousal support.

When couples separate (married or unmarried), minor children need to be protected. Child custody/child support and parenting-time are major child related family law issues.

Child custody/child support

There are two general types of child custody, legal and physical.  Parents may have joint legal and/or joint physical custody of the child. Joint legal custody means that parents will communicate and cooperate with one another and reach mutual decisions regarding major issues affecting their child. This decision-making process includes, but is not limited to: major medical decisions, educational decisions, and religious upbringing, if any. Joint physical custody means that the children live with one parent part of the time and the other parent part of the time. This time does not have to be equal. The parent who has care of the children at any given time is responsible for routine decisions regarding the children. Sole custody means that the child will live with one parent and that parent is responsible for making major decisions regarding the child.

Decisions made during custody matters effect the well-being of the child and parents far into the future. Good sound advice will make decision making easier and more informed. Contested custody issues are decided based on the best interests of the child (not the adults). It is important to consult with a competent, experienced attorney, like to assist with the many complex issues in child custody cases.

A minor child is entitled to support from both of their parents. The court generally orders the non-custodial parent to provide support for a child living with the other parent.

Child support

Child support is ordinarily calculated in accord with the Michigan Child Support Formula established under State law. This formula is based primarily on monthly net incomes (both parents) and the amount of time that the child spends with the non-custodial parent. Child support is ordinarily payable until a child reaches the age of eighteen or until the age of 19-1/2 if the child is still a full-time high school student.

If you are paying or receiving child support, I strongly recommend that you become familiar with the Michigan State Disbursement Unit (MisDU) web site found here. Go to the site, establish an account. You have the responsibility to know how much you owe and when the last payment was posted.

Additionally if financial circumstances change (loss of job), you should immediately contact the Friend of the Court in your County and seek to modify the amount of child support payable in your case. A court will be unable to modify support "retroactively" - that is, any change will take effect as of the date you ask for a modification. It is so very important that you present any change in financial circumstances as soon as possible.

In addition to civil contempt; did you know that non-payment of child support is also a crime prosecuted in Michigan as a felony? (Michigan Revised Statues – Section: 750.165). Conviction of Felony Non-Support carries with it, an up to four year incarceration or a fine of $2000 or both. If you have been charged with failure to pay child support, you need an experienced attorney like Bernadine B. Trout to fight for you. I am listed in Wayne County, as an on-call house attorney to defend persons in cases where they have been charged with Felony-non-support. For years I have defended many clients charged with this offense.

Paternity

There are different types of fathers

• Biological Father, DNA Tested
• Putative Father, has not established paternity, but has been identified as the father.
• Legal Father, Married to the mother, Order of the Court, or Acknowledgment of Parentage.

A man can be a biological father and not a legal father. A man can be a legal father and not the biological father.

Only legal fathers have rights. When a child is conceived or born during a marriage, the husband is presumed to be the legal father of that child. If the child is born to a mother who is not married, there is no legal father. Establishing parentage will create a legal relationship between the father and the child. There are two basic ways to establish paternity:

  1. Voluntarily, the father and mother must sign and notarize an “Acknowledgment of Parentage” form and then file the form with the State of Michigan. Acknowledgments of parentage should be signed with great caution and never without the benefit of genetic (DNA) testing to establish biological parentage!

  2. Paternity may also be established via a court proceeding. A suit may be brought to establish paternity under the Paternity Act. Paternity can also be established during a divorce. The court will issue an order of Filiation or Judgment of Divorce. The court order will also establish custody, parenting-time and child support amounts.

There has been a recent development in Michigan’s Laws related to paternity. In July 2012 Public Act 159 of 2012, gave biological father more rights to establish paternity when a child is born during a marriage. Prior to this law being passed biological fathers of children born to a woman who was married to another man or children for whom another man had been determined to be the legal father, had no standing to bring a case in court.

Recent Changes to the Law

Genetic Parentage Act

In March 2015 a new law will take effect. This new law: the Genetic Parentage Act will change the current system significantly. Here is how it works currently: If the parent of a child requests services from a Title IV-D agency. Services such as MI Child Health Insurance, Food or any other entitlements/services, the county prosecutor will file a support case on behalf of the custodial parent. Typically the custodial parent is the other. The father is given notice of the law suit and an opportunity to defend against the suit. This can take several weeks to several months depending on what jurisdiction the case is in and how busy the court is.

The new law allows the agency to simply fill out a form and attach the results of a paternity test and bring it to the court. All of this without filing a law suit. The courts have authority under the new law to establish paternity, order child support (without an investigation regarding income and/or ability to pay child support), establish custody and parenting time. This can happen immediately without response from the father.

There are several problems with this new law. First and foremost the father is noticed via regular mail at his last known address. This may not be the current address, this may be the wrong address supplied by the custodial parent. The non-custodial parent may not open his mail. There frankly is not adequate notice and opportunity to defend. Additionally the father has no opportunity to give his income and will be charged with hundreds of dollars monthly without knowing he has an obligation. Child support is not modifiable once it becomes due.

Most egregious and unfair to the father is the fact that custody automatically goes to the mother. The child could be in foster care, under the guardianship of another person and not living with the mother. The father may have been the one applying of services. Oh boy, this is going to be a mess! If you need help with any of these issues, call Bernadine Trout (TrustTrout) at 248-386-9900. What you don’t know will hurt you!!

Revocation of Paternity Act

Prior to the enactment of the Michigan Revocation of paternity Act on June 12, 2012 a biological father had no standing to file a paternity suit when the child was conceived while the mother was married to another man. When a child is conceived while a woman is married to another man the husband is the “presumptive legal father”. The courts will only allow legal fathers custody, and parenting time with the child. Only the presumptive father and/or mother could challenge the presumption during a divorce proceeding. The result was that biological fathers could not file suit in court to gain custody or parenting time with their children. Additionally neither the mother nor the presumptive father could file an independent law suit challenging paternity.

The new law allows a biological father the standing (right) to file a paternity suit to establish paternity, custody and parenting time. The law creates a new category of fathers: “acknowledged”, “affiliated”, or “alleged” and allows them to declare or contest paternity.

An acknowledged father is one who signed an Acknowledgment of Parentage form stating that he is the father of the child.

An affiliated father is one who has a court order obtained, without the participation of the named father, stating that he is the father of the child.

An Alleged father is the person alleged to be the biological father.

In addition to the fathers, the mother can also file a motion, under certain conditions to establish paternity. The Department of Humans Services can file a suit if the child is receiving any kind of public assistance including food and medical assistance. There are different ways each party can establish paternity. However in all cases the challenge must be filed within three years of the child’s birth. If you have an issue with paternity, this is a complex subject, call Bernadine Trout (TrustTrout) at 248-386-9900. What you don’t know will hurt you!!

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I hold two professional licenses here in the state of Michigan. I am certain that most professionals practice to keep their licenses and to the best of their abilities to help their patients. However mistakes and consequences as a result of a professional’s negligent acts or failure to act can be very serious and have devastating effects on their patients as well as family and friends. Unfortunately in today’s fast paced world errors are made, due to fatigue, inattentiveness and just plain incompetence.

The following are some of the many types of medical malpractice cases that can occur and can be handled by my office:

• Birth Injuries
• Chiropractor Malpractice
• Dental Malpractice
• Emergency Room Errors
• Hospital Negligence
• Improper Treatment
• Lack of Informed Consent
• Missed/delayed/wrong diagnosis
• Nursing Home Negligence
• Pharmaceutical Errors
• Surgical Errors
• Wrongful Death

Medical malpractice can only occur within the course of a professional relationship. Additionally a medical malpractice claim must revolve around a question of medical judgment. Who can be more qualified to represent you in a medical malpractice claim, than a professional who has actually practiced as a Registered Nurse? Michigan laws related to medical malpractice are complex.

There is a difference in ordinary negligence and professional malpractice. A medical malpractice action may be brought within two years after the act or omission which is the basis for the claim. Generally (if not a minor or mentally ill) , a claim may be brought within six months after one discovers or should have discovered the existence of the claim. but not more than six years after the act or omission. MCL 600.5805 and MCL 600.5838 (a). In a medical malpractice suit you and your attorney must prove that there was a professional relationship, that the applicable standard of care was not met breached), that there was an injury caused by the failure to meet the standard of care. There has to be an injury as a result of the failure to meet the standard of care of any suit will fail.

Expert testimony is almost always required to assist in proving professional negligence or malpractice. Medical malpractice litigation is very expensive, has a long lasting effect on the patient as well as on the professional. Medical malpractice suits are vigorously defended and should not be undertaken lightly.

personal injury

When an auto accident occurs your insurance benefits are paramount. Personal injury insurance (no-fault) will cover you even if you are not in your own vehicle. Benefits include:

1) Medical Expenses: Reimbursement for all medical expenses from your car accident. This medical no-fault benefit is usually paid out by your own no-fault insurance company.

2) Wage Loss: You are reimbursed for 85 percent of any wages lost as a result of your injuries, up to a maximum amount per month as determined each year, for up to three years following your accident.

3) Replacement Services: A hired person will get paid up to $20 a day for any household services you previously did for yourself but cannot do now because of your injuries.

4) Attendant Care: Provision for nursing care while you are at home recovering from injuries. Attendant care benefits are defined as “activities of daily living,” such as monitoring and supervision for safety reasons, administering medication, bathing, dressing, walking, styling/combing of hair, other grooming, help using the toilet, driving the patient, fetching things for the patient, carrying and lifting things for the patient and wound care.

Recent Changes to the Law

Release of future Benefits

I recently got a telephone call from a man; I will call Mr. Releaser (not his real name). The reason for this name will become apparent as you read further. Mr. Releaser was involved in a motor vehicle accident way back in 1992. He received multiple serious injuries in the auto accident, one of which was receiving a blow to the face which caused the loss of most of his teeth.

Mr. Releaser was calling my office after hearing one of my radio commercials, regarding personal injury protection (PIP) insurance benefits, on WDMK-FM and WGPR-FM. Mr. Releaser informed me that he had accumulated several medical/dental bills and the insurance company had stopped paying.

During my very pleasant and informative discussion with Mr. Releaser, I discovered that he had signed a release, releasing the insurance company from any obligation to pay any future medical bills, which include dental bills. Mr. Releaser’s injury requires replacement of a dental bridge approximately every five years. Mr. Releaser told me that he was talking to the adjuster and the adjuster told him that she would pay $3500.00 on his dental bill. $3500.00 on a past medical bill and $3000.00 for a release. He took the money, and signed a release.

Auto insurance companies are required to pay unlimited related medical bills for the lifetime of the beneficiary. Mr. Releaser signed away all of his future medical benefits with the stroke of a pen for $3000.00. He now has no recourse against the insurance company. This is not an unusual tactic used by insurance companies against uninformed and unrepresented claimants.

Mr. Releaser is now personally responsible for over $21,000.00 in medical/dental bills. Providers are reporting the bills to his credit reporting agencies and his credit rating has declined. Mr. Releaser was not represented by an attorney at any time during his tractions with the insurance adjuster. Needless to say he was at a significant disadvantage. Mr. Releaser should have consulted with an attorney knowledgeable in PIP benefits and savvy to insurance company, tactics. If you have an issue with an insurance company, call Bernadine Trout (TrustTrout) at 248-386-9900. What you don’t know will hurt you!!

3rd Party Serious Personal Injury Law Suit

When you are seriously injured in an auto accident, personal injury (no-fault) insurance will not cover all of your damages. In those cases a suit may need to be initiated to cover your excess economic damages and non-economic damages.

1) Non-economic damages: Pain and suffering, including: physical pain and suffering, mental anguish, fright and shock, denial of social pleasure and enjoyments, embarrassment, humiliation or mortification.

2) Excess Wage Loss: Wage losses beyond 85 percent of any wages lost as a result of your injuries, and those over the maximum amount per month or beyond three years following your accident.

3) Excess economic losses: Excess economic damages also include additional household replacement services beyond the $20 a day statutory maximum.

Personal Injury on Someone Else's Property

A premises owner, (residential or commercial) has a duty keep the premises safe. However the level of duty is dependent on whether you were an invitee, licensee or trespasser on the property at the time of the injury.

1) Invitee. An invitee is someone on the property due to an invitation and or for a benefit to the owner. A customer in a store would be an invitee. The owner has a duty to inspect and eliminate risks of harm to invitees.

2) Licensee: Licensees are persons such as the mail carrier, utility meter reader and social guest. A property owner owes less duty to a licensee. They need to warn of known dangers.

3) Trespasser: A trespasser is on the premises without permission and there is no duty owed to a trespasser.

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SOCIAL SECURITY DISABILITY BENEFITS

Do I Qualify For Social Security Disability Benefits?
You may be eligible for Social Security Disability if you:
• Cannot work due to a disability
• Have been (or are expected to be) disabled for at least 12 months.
• Are under the age of 65.
• Have worked at least 5 of the last 10 years.
• Have a doctor that can provide medical evidence to support your disability claim.

SUPPLEMENTAL SECURITY INCOME

The SSI program makes payments to people with low income who are:

• Age 65 or older;
• Blind; or
• Disabled.

The basic SSI amount is the same nationwide. However, many states add money to the basic benefit.

If you have already applied for benefits in the past and were denied, don't give up! In fact, most people are initially denied when they apply on their own. You can still reapply or appeal the denial with the help of a qualified social security disability advocate or attorney. Statistics show that many qualified people represented by a disability advocate or attorney can get approved for benefits.

The help of an attorney can potentially reduce the time required to receive your benefits by increasing the chance of approval on your initial application. Contact Bernadine B. Trout for more information

Degree

I am dedicated to defending the licenses and rights of professionals who are accused of a violation of practice standards and their professional license is in jeopardy. I am keenly aware of the anxiety and stress that can occur when there is a report to the Board controlling your professional license. I have two licenses to protect and I know how hard it was to earn them. A Board’s investigation and the outcome do affect the rest of your life. Therefore I am committed to achieving positive outcomes for my professional license holding clients. You will be treated with, empathy, respect and understanding.

A professional facing possible disciplinary and/or loss of their license need aggressive advocacy with a Licensing Board. This advocacy needs to begin well before a formal complaint is filed. What you say to a non-professional investigator can and will be used against you. Consultation with an attorney should take place very close in time to what could be perceived as a reportable event by your employer or co-worker.

Many licensed professionals, including, pharmacists, nurses, health care workers, medical personnel, child care provides, and chiropractors do not understand the implications of an accusation (many of them baseless, mistaken and poorly investigated). Early counsel by an attorney experienced and knowledgeable of the professional licensing disciplinary board process is invaluable to a professional seeking the best possible outcome.