Should you -- and can you -- ask for a new judge?
MCR 2.003 is very specific with the fact patterns that will justify recusal, as well as those that do not. There must be something more than a cursory involvement with prior proceedings involving some of the parties or familiarity with an attorney who practices often in the courtroom. Specifically:
MCR 2.003 Disqualification of Judge
(1) Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:
(a) The judge is biased or prejudiced for or against a party or attorney.
(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.
(c) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.
(d) The judge has been consulted or employed as an attorney in the matter in controversy.
(e) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.
(f) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent, or child wherever residing, or any other member of the judge's family residing in the judge's household, has more than a de minimis economic interest in the subject matter in controversy that could be substantially impacted by the proceeding.
(g) The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or
(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
MCR 2.003(C). There is a 14 day window of opportunity to motion for recusal upon discovering one or more of these grounds.
"A JUDGE IS DISQUALIFIED WHEN HE CANNOT HEAR A CASE IMPARTIALLY ...." CAIN V DEP'T OF CORRECTIONS, 451 MICH 470, 494; 548 NW2D 210 (1996). A JUDGE IS PRESUMED TO BE IMPARTIAL, AND THE PARTY ASSERTING PARTIALITY HAS THE HEAVY BURDEN OF OVERCOMING THAT PRESUMPTION. ID. AT 497.
There is a strong presumption against recusal. The party moving to have a judge disqualified on basis of bias, must overcome heavy presumption of judicial impartiality. Schellenberg v Rochester Lodge No 2225 of Benevolent & Protective Order of Elks, 228 Mich App 20, 577 NW2d 163 (1998). This is a "heavy burden," In re Hamlet(After Remand), 225 Mich App 505, 571 NW2d 750 (1997), and requires proof of something more than cursory allegations, an attorney's mere belief or fear of bias, and a tenuous nexus between the judge and the parties, their attorneys, pending appeals, or the subject matter of the litigation, Olson v Olson, 256 Mich App 619, 671 NW2d 64 (2003).
For example, in Coble v Green, 271 Mich App 382, 722 NW2d 898 (2006), the judge did not recuse himself, and the Court of Appeals confirmed recusal was unnecessary, even though (1) the moving party practiced often before the Ingham County Circuit Court bench, (2) all of the other judges of the bench recused themselves and (3) the moving party had a pending judicial tenure complaint against the judge. As the Court of Appeals aptly noted, knowing local counsel is not a basis for recusal, nor having a pending adverse complaint from a party, nor being the only judge of the bench who declines to recuse sua sponte. Id.; see also, Ireland v Smith, 214 Mich App 235, 249; 542 NW2d 344 (1995), mod on other grounds 451 Mich 457 (1996) (JTC complaint not a basis for recusal); and Reno v Gale, 165 Mich App 86, 90; 418 NW2d 434 (1987) (knowing local counsel not a basis for recusal).
As another example, in FMB-First Nat'l Bank v Bailey, 232 Mich App 711, 591 NW2d 676 (1998), the judge declined recusal, and the Court of Appeals confirmed recusal was unnecessary, even though the trial judge was familiar with the parties and their proceeding. In that case, the judge served as arbitrator - having more than a procedural involvement, as here, with the case - and the Court of Appeals upheld the presumption that the judge would remain impartial. In order to upset this presumption, the moving party must show not that the judge had prior involvement but that "the judge's involvement causes actual personal bias and prejudice" and that the involvement is" both personal and extrajudicial." Id. In other words, simply presiding over prior proceedings is not a basis for recusal.Id. See also, In re Schmeltzer, 175 Mich App 666, 438 NW2d 866 (1989) (mere fact of presiding over prior proceedings does not justify recusal, even if judge makes initial negative assessment of party).
To hold otherwise would allow a party to play "judge shopping" and delay resolution of the case merely because the judge ruled adversely in a prior case, knows an attorney or party or has been appealed. These, too, are not bases for recusal. Coble v Green, 271 Mich App 382, 722 NW2d 898 (2006).
All this being said, if a recusal is not your best option (and usually it is not), you may consider retaining an new attorney. There are all kinds of reasons attorneys and judges do not mix -- fear, bad track record, ethics, personality conflict -- and, most of all and often only, you and your attorney do not mix. You are in it for the long haul, so find an attorney you feel good about, inside and outside the courtroom.
Should I stop contributing to my retirement account since we're getting divorced? If this question has ever crossed your mind, don't feel like you're being sneaky. You're not alone - nearly every client who comes to our offices asks this question. If your divorce court has not already issued an order restraining either spouse from changing retirement contributions, which many do at the outset of the case, then you do have options; and, if you are not yet divorcing, you have even more. Of course, you should always discuss your options with an attorney and, preferably, a financial planner, too. But there are common, universal pros and cons to changing retirement contributions. Here are a few:
Enrollment/Plan Periods: Check your plan for defined periods of time in which you can enroll, terminate or change your contribution amounts. For personal retirement accounts unrelated to your employment, this may be as simple as changing your deposit amounts online or calling your account manager. For employer-provided retirement accounts, the process can be more cumbersome, and you may find yourself having to wait for the new period to begin, and filing out several forms when it does. Check your plan, and you may find out the decision is already made for you.
Bankruptcy: If you are contemplating bankruptcy, you may want to continue your contributions. Generally, the more you have set aside in your retirement account, the better, because your retirement savings are exempt from liquidation in the bankruptcy court. This means, you do not have to use your retirement savings to pay your creditors, and you get to walk away from them with most, if not all, of your retirement savings in-tact. Beware, however, that you cannot cheat the system by pouring all of your money into your retirement account; the bankruptcy court may void the additional contributions and give that money to your creditors. If either spouse is headed toward bankruptcy after divorce, therefore, you may want to continue contributions at the maximum allowed amount - after discussing your options and risks with your divorce attorney and your bankruptcy attorney, of course.
Available Funds: Contributions to your retirement account are generally non-accessible, at least, not without paying taxes and penalties and/or proving a hardship. If you need funds during your divorce to pay temporary bills, such as rent for an apartment or attorney fees, you may want to temporarily discontinue your contributions. However, every extra dollar you have is an extra dollar you could be paying to your spouse as alimony or child support, or to your spouse's attorney for fees, and may be counted as income for calculating long-term child support, alimony or ability to pay bills. So, if you are going to free up your funds by temporarily discontinuing your retirement contributions, be sure the funds go to a legitimate debt, plan to resume your contributions as soon as practicable (probably after your divorce), and be prepared to explain what the extra boost in your income should not count for long-term calculations.
Contributing Too Much: Do not pour every dollar into your retirement account in an effort to avoid paying alimony or child support. The divorce court may, and often does, assume that you are upping the contributions to avoid a support obligation, which you probably are, and will treat you as if you still have the dollars in your pocket. This means, you will be required to pay support at a presumably higher level, even though you do not have the dollars actually available at net income, and you may find yourself dipping into retirement, and paying taxes and penalties to boot, just to pay the support you could have paid had you not decided to contribute more.
Two Dollars In, One Dollar Out: In most states, each spouse's retirement account is divided for the marital portion, generally meaning the value that accrued between the date of marriage and the date of divorce. The portion may be equal, or more or less, depending on your state's laws and the factors in your case, and a prenup or postnup may govern how much, if any, to actually divide. As you begin thinking through the divorce process, you should start with the assumption that every two dollars you put in will result in one dollar going to your wife. Talk to an attorney about each spouse's rights to a share of the account, as well as the manner and method of division (Does the now ex get cash? Does the now ex have to wait until I retire? Etc.) But keep in mind that, even if the account is divided equally, you still have funds, one dollar for every two, for yourself, too.
And what about your spouse's accounts? The same pros and cons apply. Make sure you are watchful of what your spouse does, so you get what's due to you.