Developments in Civil Forfeiture Law

On August 14, the Traverse City Record Eagle reported that a local couple who operated medical marijuana dispensaries in Kalkaska, Grand Traverse and Wexford Counties could lose their home, valued at more than $260,000, in a civil suit filed by the State of Michigan.

“Civil forfeiture” is a controversial legal process by which law enforcement may seize and take ownership of assets, on the basis that the assets were used in conjunction with crime or illegal activity. The process does not require that the owner(s) be charged with or convicted of wrongdoing; the court case is “against the asset.” Although civil court processes generally involve a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property, such as a pile of cash, a house, or a boat. To get back the seized property, owners must prove it was not involved in criminal activity.

Proponents of the process argue that it is an efficient method, because it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, by directly converting the value obtained from illegal items to law enforcement purposes.

Critics of the policy argue that innocent owners entangled in a legal process where that their constitutional property rights are violated, and that there are precious few due process rules to protect them. In effect, they are presumed guilty, rather than innocent. They further argue that the financial incentives lead to corruption and law enforcement misbehavior.

In January 2017, the Justice Department, in recognition of abuses in the system, placed limitations upon Federal agencies’ adoption of assets seized by state and local law enforcement agencies. On July 29, 2017, Attorney General Sessions effectively reversed those limitations.

According to the Washington Post of July 19, 2017, in the 12 months before Attorney General Eric Holder shut down the program in 2015, state and local authorities took in $65 million that they shared with federal agencies, and 13 states have passed laws requiring prosecutors to obtain a criminal conviction before authorities can permanently seize an individual’s property. Under federal law, however, authorities can take cash, vehicles, homes and any other property and retain it, without ever charging the suspect with a crime. The Post also noted that although the Attorney General’s focus was on ill-gotten gains from drug dealers, it cited studies or seizures in Cook County, Illinois between 2012 and 2017. There the median value of assets seized was just over $1,000; the median value of seizures where federal agencies obtained a 20% share was about $9,000. Not exactly indicative of major drug trafficking activities . . .

The controversy has not been resolved. There is consensus that abuses have happened, but disagreement about their extent and whether the overall benefits to society are worth the cost of the instances of abuse.

Other Professionals: Why, When, and Who

BY GARY ALLEN GARDNER
digital copy

Believe it or not, every divorce case is unique. Every one. Each family is different
and made up of different individuals, so no two divorce cases are the same. Your
case has similarities with others handled by your lawyer before, but no prior
case is yours. Your marriage relationship is ending, and there is a reason (probably
more than one). Almost certainly one of those reasons is that the two individuals in
the marriage relationship, you and your soon-to-be ex-spouse, have different needs,
different perceptions, and quite likely, different goals.

A More Efficient and Less Costly Divorce: How a Team Can Help
The task before you is nothing short of restructuring your life. Your finances change;
your plans for the future change. Your relationships with your children change. Your
social life changes. But only one part of your divorce is strictly legal; other very real,
very important components are emotional, financial, and psychological in nature.
Using the services of other professionals, coordinated by your divorce lawyer, can
help you accomplish that restructuring more efficiently than your lawyer can alone.

So, how do you “do” divorce? Stake out a position and stick to it, right? Certainly
you could choose to just charge ahead, heedless of what “the other side” says or does,
utterly convinced of the justice and strength of your position. You and your lawyer
could lay out a position and agree to take (or give) not one penny more (or less)
and not one percentage point less parenting time. Given enough time and money,
assuming that that position is not utterly inequitable, you might attain some of it. It
is extremely unlikely that you will achieve it all; no one ever gets everything he or she
wants in a divorce. But what if I told you that by using other professionals, on a team
with your attorney, you might be able to reach a resolution more quickly and at less
cost, both financial and emotional? Read on.

Your Lawyer as Advocate and Team Manager
Let your lawyer do legal work. Ask her to help you select and coordinate the other
professionals assisting you. Start with her, and turn to her when you don’t know
where to turn. Employ those professionals, the specialists, that she connects you with,
for the best care and the best outcome for your case.

Using additional professionals will make my divorce much more expensive, right?
Not necessarily. Think about it this way: should you pay your divorce attorney $300/
hour to counsel you through the emotional issues associated with the affair and
betrayal, or $125/hour to your therapist for that? That’s an easy answer based on
hourly rates alone, right? Also, doing so would assume that your attorney has the
counseling and social work skills to get you through it. He or she is not as skilled as
your therapist, in all likelihood. Other professionals have qualifications that your
lawyer does not, while some will produce a product that your lawyer requires in order
to resolve your case.

The Appraiser
To determine the value of a piece of real estate (including a house), you need an
appraiser. Your lawyer cannot do that for you. (And neither can a realtor, by the way.
A realtor can only give you a market opinion, but in most jurisdictions, that opinion
would not be a determination of market value admissible in court.) The appraiser’s
product, a valuation report, will be important data for your lawyer to have and for
your financial advisor to use. It is also very valuable to settlement negotiation. And
if it becomes necessary, that appraiser can testify at a trial or evidentiary hearing
to the value of that asset. A few hundred dollars spent on that appraiser is a good
investment toward the ultimate resolution of your divorce.

The Divorce Coach versus the Therapist
Mental health professionals, in all their roles, can help in a number of ways to get
your case to resolution. So much of the “stuff” of a divorce is not legal; it is emotional
and psychological. “How can I get beyond the affair?” “I fear that I won’t have
enough money for retirement.” A divorce coach (such as a counselor or therapist with
a master’s degree in social work) is better equipped to help you work through those
emotional and psychological issues than your attorney.

Sometimes one spouse just gets “stuck.” He cannot move beyond a problem
or feeling (betrayal, guilt, anger) to rationally discuss temporary parenting-time
arrangements. This is where a divorce coach can be so very valuable. That coach can
help identify the obstacle and help find a path around it.

Your personal therapist or counselor may also be very helpful to you. His or her
role is different from that of your divorce coach. The job of your coach is to help you
reach a resolution of the divorce case. Your therapist can help you with that process,
but your therapist generally has a much larger perspective, with more long-term
way-points on the horizon. Your therapist may be helping you work through the
effects of childhood trauma or problems with trust, for example. Those things will
certainly affect your participation in the process of divorce, but your engagement
in and completion of the divorce is a much more defined, focused task. In short, the
role of your divorce coach is to help you through the process of getting unmarried.

The Financial Advisor
A very real, very important part of your divorce is financial.

    • “Do we have to sell the house?”
    • “Who gets the retirement account?”
    • “Who gets the income tax exemptions for the kids?”
    • “How are we going to pay for college?”

Questions such as these can present very real obstacles to reaching resolution and
could hold pitfalls for the unwary.

Go see a financial advisor early—very early—in the process. Talk with your lawyer
and then with a financial professional you trust. If your divorce is collaborative, that
professional will help and advise you (both you and your soon-to-be-ex-spouse) as a
financial neutral, giving you options and alternatives for dividing assets and debts
and going forward separately. He or she may start by helping to compile a marital
estate table. Even in a traditionally litigated case, your financial professional can give
you options that you may not have considered. A financial professional can guide you
through a temporary plan while the divorce is pending to answer such questions as:

    • Who pays the mortgage?
    • Who pays the utility bills?
    • What happens to our joint accounts?
    • Who pays the credit card bills?
    • Who pays for travel hockey expenses?

A financial professional can also walk you (and your attorney) through a number
of options for final settlement and division of property and assets that will address
other questions:

    • Should you refinance the mortgage on the marital home?
    • Should you take a higher percentage of assets or more spousal support?
    • Should the retirement accounts be equalized or divided and how?
    • Will my part of the retirement accounts be enough for me to live on?

Most lawyers are not tax professionals. Your lawyer may have some idea of the tax
consequences of spousal support, for instance. But a financial professional is better
equipped to determine whether you should wait until after December 31 to finalize
your divorce and the relative values (relative to each parent) of the dependent tax
exemptions going forward.

Frequently, a financial advisor can offer options and ideas that neither spouse had
considered. Although there is, in fact, only a single “pie” (the marital estate) to be
divided, a financial specialist can help you see that all of the slices are not identical.
The tax rates that you and your ex-spouse will pay after your divorce may be quite
different. You and your financial advisor should consider these tax rates in deciding
how to “slice” that pie.

The Child Specialists
If your divorce involves children, it will almost certainly benefit from the involvement
of child-centric professionals. If you do not have a firm, written parenting-time
agreement in hand as you begin your divorce, see a parenting coordinator or child
specialist as soon as you can. That specialist can review proposals or thoughts that
either of you may have and make recommendations for the division of parenting time
that are appropriate for the ages of your children. In general, younger children need
frequent contact with both parents; long blocks of time (such as “week on, week
off”) do not work as well, developmentally, for them. Give serious consideration to
using the expertise of a child specialist for concerns like these.

What is the role of a custody evaluator? A custody evaluator, who is usually a
psychologist, can amass and analyze a great deal of information about your family
and its members. In most cases, a custody evaluator will make a recommendation to
the parents and/or the court regarding custody and parenting time.

In preparing a recommendation, an evaluator will meet with each parent, observe
young children, and even interview older children. The evaluator will learn about the
co-parenting relationship, how the co-parents communicate (or fail to), and what
parent-child relationships have looked like up until now. He or she can gather school
records, talk with teachers and coaches, and try to put together a “snapshot” of the
child’s daily life. He or she can compile this information into a report to the court,
which the court may use in determining custody and parenting-time arrangements.

A guardian ad litem (translated literally from the Latin: “guardian for the suit”),
or GAL, is an attorney with the sole charge of protecting, during the legal process,
the interests of the minor child. The GAL is the voice of, and the advocate for, your
child. Her sole task is to protect the best interests of the child; it is not to address the interests of either parent. In some cases, a child’s GAL can be helpful in conveying the child’s needs or interests to the court precisely because the court sees the GAL as independent expert, one who does not promote the agenda of either parent.

Your Lawyer as “Primary Care Physician” with a Team of Specialists
Your divorce lawyer is your advocate and your coordinator. She is your “primary
care” professional who is coordinating the work of a team of specialists for you.
You have a very serious condition with complex, interrelated symptoms and multiple
courses of treatment spread across multiple disciplines. How you treat this condition
will have lifelong effects for everyone involved. Your lawyer is at the center of it all—
the “pivot point” for everything that happens in your case. She should coordinate the
timing of your case, your consultation with other professionals, and meetings with
the other side. She is your advocate and planner.

The Paralegal
When should you work with a paralegal? Your attorney’s paralegal works under the
umbrella of attorney-client privilege and can be seen as an extension of your lawyer.
Working with a paralegal for matters such as collecting documents for discovery
requests and compiling documents and information can save you time and money.
A paralegal can help schedule meetings with the other side and can keep you up to
date on pending tasks and deadlines, upcoming hearings, and progress in your case.

A Private Investigator
Should I hire a private investigator? First check with your attorney. If your lawyer
thinks that a private investigator (a “PI”) could be a wise investment, it may make
sense to hire that investigator through your attorney. For most purposes, that puts
the PI and the PI’s report “under the umbrella” of attorney-client privilege.

A Receiver
How about a receiver? A receiver is a professional appointed by a court to take
control of the finances and/or operations of a business or asset of the marital estate.
Occasionally, a receiver can be helpful during a divorce case if there is a “going
concern” (a business or income-producing property) that cannot continue to operate
by agreement of the spouses. Or a receiver might be necessary if the spouses cannot
come to an agreement regarding the allocation of the income from the business
or asset. Talk with your lawyer if you think your divorce could benefit from the
involvement of a receiver.

A Mediator or Other “Neutral”
What can a mediator do that two attorneys and their clients cannot do? The role of
a mediator is to facilitate a discussion with the goal of reaching a resolution. That
resolution may be a partial one or it might be a complete settlement.

A mediator is a neutral party who may not takes sides or render a decision. It is
not your task to “convince” the mediator of the correctness of your position; your
task is to convince your spouse that your interests and needs are reasonable and can
be met through your proposal. It is the job of the mediator to create a space for you
to be heard by the other side. Similarly, the mediator must create a forum for you
to listen, one that will enable you to hear the needs and interests of the other side.
Often, the very presence of that neutral third party changes the dynamics and
tenor of a divorce. When both sides are forced to formulate their needs and interests
and present them in front of the mediator, they sound different. When one spouse
and his attorney are forced to look at the needs and interests presented by the other,
new options or alternatives may present themselves. A mediator may even describe
some options and alternatives that he or she has seen in other divorces. Use that
experience; it may help you get your case resolved.

An arbitrator is different from a mediator. An arbitrator can decide the issues that
you specify using the rules to which you agree. In effect, an arbitrator is a private
judge.

An arbitrator can almost always hear your case or issues sooner than a judge. An
arbitrator may be able to help you move your case forward with respect to one or
more issues that have become impasses for you and your spouse.
Ultimately, a court order is required to sever the bonds of matrimony and finalize
the divorce. But an agreement to use binding arbitration may enable you and your
spouse to get some issues (perhaps even all issues) resolved more quickly and to make
the entry of the final divorce decree a mere formality based on resolved terms.

Teachers, Coaches, Doctors, and Other Professionals in Your Children’s Lives
Consider also the existing professionals in the lives of your children: teachers, coaches,
doctors, etc. Their existing relationship with you and with your children may be able
to provide some much-needed stability in a rapidly changing family structure. Don’t
shut them out or keep them in the dark; let them know what is going on and how
your children are dealing with it. Also, keep in mind that some of those professionals
might be called—by you or by your spouse—as witnesses. If you are unable to resolve
your divorce without formal court proceedings, they could become involved in that
process through testimony, affidavits, or otherwise.

A Note about “Collaborative Divorce”
“Collaborative divorce” is a specific process, agreed upon and accepted by the parties,
in which both spouses agree to give their best efforts to resolve all parts of the
divorce before either of them starts a case in court. The parties also agree to full
and complete disclosure in good faith, and they pledge that, if they are unable to
complete their divorce without court intervention, both spouses must hire different
attorneys. Some states now specifically recognize the collaborative divorce process
in their laws. In Michigan, for instance, parties who have completed a collaborative
divorce may be able to shorten the waiting period for entry of the divorce order from
180 days to only sixty days.

In collaborative divorce, your team will always include attorneys and other
professionals. The team may work together synergistically, efficiently calling upon the
specific skills of each professional. Whether your divorce is collaborative, traditionally
litigated, or somewhere in between, a team of professionals can be very valuable to
you and get you through it with less emotional and financial damage.

Conclusion: Your Team Can Shed Light on Ways to Move Forward
Every case, every couple and family, is different. Each family and couple being divided
and restructured by divorce is unique. Divorce—that restructuring—is a serious
condition that you are facing at a time of your life when you are likely not at your
best. For the best outcome, you should rely on the skills and expertise of a team of
professionals. This is a very difficult time in your life, with undeniable consequences
for your future. Do not try to go it alone, in the dark—you don’t have to. Use your
attorney as your “primary care” professional to coordinate that team, your care, and
your case. You, your case, and your life going forward will be better for it. fa

Gary Allen Gardner (gary@rosigardner.com) has been a practicing family law advocate for
over twenty years. He is an experienced litigator, trained mediator, and collaborative divorce
practitioner. Traverse City, Michigan, is where he makes his home and runs his practice,
Rosi & Gardner, P.C.