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Kwame Kilpatrick and an overview of Perjury

Posted by nicholseberth on January 25, 2008

With so much recent news and discussion regarding perjury and the Mayor of Detroit, Kwame Kilpatrick, a tutorial on the subject may be appropriate. Under Michigan law, perjury is a felony punishable by up to 15 years in state prison. It applies in any civil or criminal case. To commit perjury, there must be (1) an administration of an oath authorized by law, by competent authority; (2) sworn material statement of fact made; and (3) statements or testimony regarding those facts that are willfully false.

A material statement is one that could have affected the course or outcome of a proceeding although it need not actually affect the outcome.

Perjury is not limited to statements made while sworn under oath at a deposition or trial. Anytime a person falsely swears under oath as to a material issue, even in a document, that person can be subject to prosecution for perjury. A statute may authorize or require that an application or affidavit be signed “under penalty of perjury.” If it does, signing such a document, when there are known false statements contained within it, would constitute perjury.

Subornation of perjury is procuring another person to commit the crime of perjury. It is a felony punishable by up to 15 years in state prison.

Example: During a contentious divorce proceeding, Joe Plaintiff decides that he has had enough of his wife Jane Defendant. Joe asks John Witness to testify that he saw Jane having an affair with another man. Joe knows that this is untrue but he and John cook up the story to get back at Jane. At trial, John falsely testifies and commits perjury, and because Joe asked John to testify falsely, Joe has committed subornation of perjury.

Incitement of perjury is procuring a person to commit perjury where no perjury is actually committed. It is attempting to suborn perjury. It is a felony punishable by up to 5 years in state prison.

Obstruction of justice is a common-law crime that uses the same standard as perjury except that the materially false statement need not be made under oath.


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Public Speaker Service

Posted by nicholseberth on January 25, 2008

Distributed as a free service to the public

The law firm of Nichols & Eberth, P.C. provides experienced attorneys to speak to groups of all sizes and natures on the topics described below and others. There is no charge for this service. Each presentation lasts about one hour* and includes many handouts and informational brochures. To set up a presentation, please contact our public speaker coordinator, Ms. Kellie A. Strauss, at (313) 561-5700.


A step by step discussion of the divorce process which includes the issues which typically need to be resolved before a divorce can become “final” such as alimony, child custody, child support, visitation, division of assets and liabilities including pensions and personal protection orders.


Includes a discussion of the advantages and disadvantages of wills, trusts and other testamentary documents. Each person who attends is encouraged and is helped to write his or her own “Living Will” on the spot, which he or she can take with them when they leave.


An explanation of the probate process including the opening of an estate in probate court, the appointment of a personal representative, the duties and responsibilities of a personal representative, the filing of an inventory and annual accounts, and more.


A discussion of Michigan Seller’s Disclosure Act, Offers to Purchase, Title Insurance, City Inspections, Certificates of Occupancy, Notes, Mortgages, Land Contracts, Transfer Taxes, Proration of Taxes, Condominiums, Closing Statements and Deeds.


An explanation of the benefits available to a person injured in an automobile accident and when that person is entitled to sue the driver and the owner of the vehicle, which caused the injury.


This presentation includes a discussion of the advantages and disadvantages of sole proprietorships, partnerships, “C” corporations, subchapter “S” corporations and limited liability companies.


This presentation includes a discussion on how best to transfer key employees to the United States and various options available to multi-national corporations. Seminar includes strategic planning as well as advice on I-9 compliance in the workforce.


An alternative to fighting in Court and a way of obtaining a divorce with dignity. This provides an explanation of how the mediation process is used to reach an amicable resolution of such issues as alimony, child custody visitation, child support and the division of assets and liabilities including pensions.


This very popular presentation includes many excerpts from movies which are used to demonstrate such concepts as “What Love Is and What Love Is Not” and what the typical needs that males and females have from a relationship. The full presentation takes about two hours.

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Grandparents Allowed Hearing on Visitation

Posted by nicholseberth on January 25, 2008

On January 3, 2005, Governor Granholm signed into law a long awaited, and much-debated bill, which now allows grandparents the right to be heard in court should they be denied visitation with their grandchildren. Prior to this new law, grandparents had no “standing” to even bring the issue before a judge much less obtain visitation with their grandchildren. However, the new law only provides grandparents with the right to a hearing on the issue of grandparent visitation. It will still be up to the judge as to whether or not the grandparents will actually get visitation with their grandchildren.

This new law provides the safeguards required by the Michigan Supreme Court protecting parental rights – as guaranteed by the Constitution – while setting in place standards for grandparents who have been denied seeing their grandchildren and gives them an opportunity to come to court and show why they should have a right to see their grandchildren if that request has been unreasonably denied.


The new law provides grandparents, in the following circumstances, rights to request relief from the courts to see their grandchildren, if they have been denied visitation by a parent:

  1. If there is a divorce, separate maintenance, or annulment action pending between the child’s parents, or such an action has already been finalized.
  2. The grandchild was born out-of-wedlock and the parents are not living together. However, this only applies, to grandparents of the alleged father if he has been declared legally to be the father of the child by a proper court proceeding and the child’s father provides child support in accordance with his ability to provide support or care for his child.
  3. Legal custody of the child has been given to a person other than the child’s parent or the child does not live in the parent’s home (other than a child who has been adopted by a person who is not the child’s stepparent).
  4. A grandparent has taken care of a grandchild during the year before they request visitation, whether or not they have done so by a valid court order.
  5. The child’s parent, who is a child of the grandparent, is deceased.

If a grandparent falls into any of the above categories and has been denied visitation, they would have a right to bring an action in the court that has heard a prior action, such as a divorce or paternity action. If there has been no prior action filed in the court, then a new action would be brought in the circuit court in the county where the grandchild resides.

Any person, who has legal custody, or an order for parenting time of the child, must be given notice of the grandparent visitation request.

For more information regarding this matter, visit our website at and click on “Grandparent Visitation.”

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Purchasers Can Sue Sellers for Leaky Roof

Posted by nicholseberth on January 25, 2008

The Michigan Court of Appeals has ruled that the purchasers of a home with leaking skylights can proceed to a jury trial even though the Sellers’ Disclosure Statement stated that there had been problems with the roof leaking and even though the Purchasers had a private home inspection prior to the closing which did not find the roof to be leaking.

In Bergen v. Baker, the trial court judge ruled that in light of the Sellers’ Disclosure Statement and the private inspection conducted before the closing, the Sellers were entitled to summary disposition because the Purchasers had been given reasonable notice about the leaky roof. The Court of Appeals disagreed and remanded the case back to the trial court for a jury trial.

The Court of Appeals found that although the Sellers disclosed that there had been problems with the roof leaking in the past, the Sellers said nothing about any current roof problems. On the contrary, the Sellers said that “a complete tear off and replacement” of the roof had been completed in 1998 and that the problems were “completely rectified with the new roof.”

Furthermore, although the home inspector found evidence of “past leakage,” he did not find evidence of an active leak. The Sellers also failed to mention that repairs to the skylights had been done in 1999, one year after the new roof was installed.

As a result of all of the above, the Court of Appeals ruled that there were “questions of fact” which could not be decided by a judge as a matter of law and that the case needed to be presented to a jury.

We at Nichols & Eberth believe that the impact of this case is that Sellers need to be very complete in disclosing all conditions pertaining to the property including all repairs or attempts to repair. In addition, the Sellers should not think that because the Purchasers have had their own private home inspection conducted, they are off the hook when it comes to liability.

Also, we have found that with many home sales, the Sellers’ Disclosure Statement is very casually filled out by the Sellers or the real estate agent without the Sellers fully recognizing the liability that they may incur if the Statement is incomplete and/or inaccurate. If you are contemplating selling your home, we recommend that you have your Sellers’ Disclosure Statement reviewed by an attorney before you give it to the Purchasers.

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Why the Type of Deed Used Matters

Posted by nicholseberth on January 25, 2008

Quick: What’s the difference between a warranty deed and a quitclaim deed? Maybe you thought that the term was “quick” claim deed. Here is everything you wanted to know about deeds, but never got around to asking.

A deed is a document that conveys, or passes, real estate from one party to another. Whether you buy a house from a stranger, inherit it from your parents or add your spouse to the home’s title, a deed accomplishes the, uh, deed of transferring the title.

A deed isn’t a sales contract. A sales contract is a promise to convey property in exchange for something (usually money). In contrast, a deed isn’t a promise to convey; it is the conveyance itself.

What a deed includes

A deed contains a legal description of the real estate being transferred. In urban or suburban locales, the legal description identifies which lot the property occupies in a platted subdivision. Deeds in rural areas might use meets-and-bounds descriptions of the boundaries, which identify where the property lines are in relation to landmarks.

The deed must identify who is handing over an interest in the property (the grantor) and who is accepting it (the grantee). Most counties require the deed to have the addresses of all the parties involved. And a deed wouldn’t be a deed without words of conveyance — a passage that says that the grantor intends to convey an interest in the property to the grantee.

If the information on the deed is inaccurate or out of date, it can cause headaches. The legal description could be incorrect, for example, saying that the property line is 150 feet north of the house, when it’s actually 145 feet, misleading the buyer into thinking that he can build a fence on his neighbor’s property.

More commonly, people’s names are wrong. This often happens when a woman changes her last name after marriage or divorce. Take the example of a single woman named Mary Jones who buys a house. Then she gets married, changes her name to Smith, and sells the house. If the deed doesn’t identify her as Mary Smith, formerly Mary Jones, the document has some ambiguity that would best be avoided.

Types of deeds

There are two main types of deed: warranty and quitclaim.

A warranty deed is one in which the seller, when transferring the title to you, warrants that he or she owns the property free and clear of all liens.

A warranty deed is used in most sales of property. The warranty deed says that the grantor is the rightful owner and has the right to transfer the title; that there are no outstanding claims on the property from lenders using it as collateral, or from other creditors, and that the property can’t be claimed by someone with a better claim to the title. If any of those claims are wrong, the buyer is entitled to compensation from the seller.

A title insurance policy backs up the claims of the warranty deed, protecting the lender or buyer from disputes about ownership or liens.

A quitclaim deed typically is executed when the property isn’t sold — when the owner dies and bequeaths it to someone, or when the owner gets married and wants to add the spouse’s name to the title, or when a former spouse’s name is removed as part of a divorce settlement or when the property is transferred to a living trust.

A quitclaim deed is a deed that says I’m not warranting what I own, but I’m transferring what I do own to you. So it’s a much lesser level of protection.

With a quitclaim, the grantee has no legal recourse if problems with the title turn up, or if a forgotten lien holder emerges from the woodwork. There isn’t a title policy. That’s why it’s riskier. On the other hand, a lot of quitclaims are executed when the property stays in the family, and that reduces the risk.

There also are cases in which a seller might execute a warranty deed on the main part of the property and a quitclaim deed on another part of it. This might be the case with properties that border rivers and lakes, where the owner sells underwater land, where it’s not particularly clear who owns it.

Nichols & Eberth Offers a Reduced Rate for Wills, Living Wills and Powers of Attorney

The attorneys at Nichols & Eberth, P.C. are very experienced in helping our clients draft testamentary wills, living wills, powers of attorney upon disability and other estate planning documents. And if you tell us that you came to us because of this Legal News Alert, we will discount our usual hourly rate.

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Posted by nicholseberth on January 25, 2008

A deadbeat parent who was prosecuted for failure to pay child support should not have been allowed to introduce evidence of his inability to pay, the Michigan Court of Appeals has ruled in an issue of first impression.

The prosecution argued that such evidence is inadmissible because felony nonsupport is a strict liability crime.

The Court of Appeals agreed, reversing the trial court’s denial of the prosecution’s motion to exclude evidence of the dad’s financial problems.

Defendant Richard Carl Adams and his wife were divorced in July 1991. They were awarded joint legal custody of their three children, and the defendant was ordered to pay monthly child support.

However, on June 4, 2003, a warrant was issued for the defendant’s arrest for failure to pay an arrearage totaling $36,265.44.

The defendant was subsequently charged with one count of felony nonsupport pursuant to a new Michigan law. He pleaded not guilty and trial was set for October 7, 2003.

“Here, the maximum potential punishment is imprisonment for four years or a $2,000 fine”, Judge Gage noted in her ruling in People vs. Adams.

“Although four years’ imprisonment may seem severe, especially given that imprisonment will eliminate any ability for the defendant to pay support while he is incarcerated, the statute does afford the defendant a chance to redeem himself before a sentence is imposed,” Gage explained. “If an obligor who defied a support order by failing to seek modification and choosing instead to just not pay, then fails to satisfy the bond conditions, the imposition of up to a four-year sentence is not severe; instead, at that point, the defendant has repeatedly demonstrated to the court that we will not adhere to the court order, and imprisonment is justified.”

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Why have a will?

Posted by nicholseberth on January 25, 2008

Why Have a Will?

An old adage states that there are only two things in life that are certain — death and taxes. Now that you are in the process of taking care of one certainty, taxes, this may be an opportune time to take care of the other certainty by making a testamentary will. Everyone should have a testamentary will and here are some reasons why.

Guardian of Your Minor Children

Although it is a remote possibility that both parents of minor children will die simultaneously or within a very short time of one another, unfortunately this does happen. And if you and your spouse do not have a will which names who you want to be the guardian of your children and, perhaps more importantly, who you don’t want to be the guardian, a probate court judge will have to make the decision without any input from you. In addition, these types of court proceedings are usually very litigious, very expensive and the attorney fees and costs are often paid from your estate!

All Estate Assets May Go Only to One Side of Your Family

If you have no surviving children, grandchildren or great grandchildren and you and your spouse die under circumstances such that you die instantly and your spouse survives you by an hour or two (e.g. an automobile accident), then because you and your spouse did not have a will which deals with this near simultaneous death situation, all of the jointly held assets in your estate will go exclusively to your spouse’s blood relatives because he or she survived you and your blood relatives will receive nothing.

All Assets May Go to Your 18 Year Old Child

Do you really want your child to gain control of all of the assets in your estate the moment that he or she turns 18 years old? Probably not. With a will, you can have your assets managed by a trustee for the benefit of your child until he or she becomes 25 or 30 or 35.

Avoid Family Conflicts

By leaving specific instructions on what to do with your remains and what to do with personal possessions such as jewelry and family heirlooms, you can avoid many post-death family squabbles which can poison relationships for years.

Reduced Rate for Wills, Living Wills and Powers of Attorney

The attorneys at Nichols & Eberth, P.C. are very experienced in helping our clients draft testamentary wills, living wills, powers of attorney upon disability and other estate planning documents. And if you tell us that you came to us because of this Legal News Alert, we will discount our usual hourly rate.

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Changes In Social Security

Posted by nicholseberth on January 23, 2008

There are many changes that have taken place in Social Security law, for more information, please click HERE.

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