Friday, January 9, 2015

VICTEM OF DOMESTIC VIOLENCE STUCK WITH ANTENUPTIAL AGREEMENT

WIFE BEATER STILL GETS THE BENEFIT.

Discussed  are Issues of Divorce, Validity of the parties' antenuptial agreement and  "Change in circumstances" (COC); Presented by FLINT DIVORCE LAWYER Terry R. Bankert 235-1970 1/9/15.#flintdivorce

The Michigan Court of Appeals  Decided 12/18/14,  among other issues  that the parties' antenuptial agreement was valid and enforceable, concluding that to invalidate it on the basis of one party's fault would contravene the agreement's clear and unambiguous language, and that as a matter of law, the defendant-wife failed to show that a change of circumstances [ COC] was sufficient to void it.[1] The claimed change in circumstances was the domestic violence  inflicted on the  wife  by the husband.

The overriding principle is that “parties who negotiate and ratify antenuptial agreements should do so with the confidence that their expressed intent will be upheld and enforced by the courts.” Id. at 145. [2]

The definition of an #antenuptial .  A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is acontract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other.[3]
The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.[3]
They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well.[3]
It should not be confused with the historic marriage settlement which was concerned not primarily with the effects of divorce but with the establishment and maintaining of dynastic families.[3]
In some countries, including Belgium and the Netherlands, the prenuptial agreement not only provides for the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy.[3]
Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married.[1]     [3]

The  Defendant wife in this case is trying to set aside the prenuptial agreement she signed.
Her argument is essential she could not foresee her husband would be a wife beater when she signed the prenuptial agreement.

Defendant  here did not provide any case law supporting "her position that someone's 'fault' in a divorce can constitute an unforeseen" COC. Further, assuming that the alleged abuse "occurred and was unforeseeable," this COC was "not sufficient to void the parties' antenuptial agreement in this instance.[1]

The types of changes of circumstances that may void an otherwise valid antenuptial agreement must relate to the issues addressed in the antenuptial agreement.[1]

Since the primary focus of the antenuptial agreement addressed spousal support and the division of the parties' assets, any changes of circumstances must relate to these aspects, and here, the domestic abuse does not." The court found that Hutchison did not stand for the proposition that abuse, alone, can constitute a sufficient COC to void an otherwise valid antenuptial agreement.[1]

Defendant here  appeals as of right a judgment of divorce entered by the trial court. We  the Michigan COurt of Appeals affirm in part, reverse in part, and remand for further proceedings. [2]

The parties signed an antenuptial agreement on September 9, 1993, two days before their wedding on September 11, 1993. This case primarily deals with the validity and enforcement of that antenuptial agreement.[2]

THE FOLLOWING ARE PARTS OF THAT AGREEMENT

It said “ In the event that the marriage . . . terminate[s] as a result of divorce, then, in full satisfaction, settlement, and discharge of any and all rights or claims of alimony, support, property division, or other rights or claims of any kind, nature, or description incident to marriage and divorce (including any right to payment of legal fees incident to a divorce), under the present or future statutes and laws of common law of the state of Michigan or any other jurisdiction (all of which are hereby waived and released), the parties agree that all property acquired after the marriage between the parties shall be divided between the parties with each party receiving 50 percent of the said property”.[2]

However, notwithstanding the above, the following property acquired after the marriage will remain the sole and separate property of the party acquiring the property and/or named on the property: [2]

a. As provided in paragraph Two and Three of this antenuptial agreement, any increase in the value of any property, rents, profits, or dividends arising from property previously owned by either party shall remain the sole and separate property of that party.[2]

b. Any property acquired in either party’s individual capacity or name during the marriage, including any contributions to retirement plans (including but not limited to IRAs, 401(k) plans, SEP IRAs, IRA rollovers, and pension plans), shall remain the sole and separate property of the party named on the account or the party who acquired the property in his or her individual capacity or name.[2]
* * *
8. Each party shall, without compensation, join as grantor in any and all conveyances of property made by the other party or by his or her heirs, devises, or personal representatives, thereby relinquishing all claim to the property so conveyed, including without limitation any dower or homestead rights, and each party shall further, upon the other’s request, take any and all steps and execute, acknowledge, and deliver to the other party any and all further instruments necessary or expedient to effectuate the purpose and intent of this agreement.[2]
* * *
10. Each party acknowledges that the other party has advised him or her of the other party’s means, resources, income, and the nature and extent of the other party’s properties and holdings (including, but not limited to, the financial information set forth in exhibit A attached hereto and incorporated herein by reference) and that there is a likelihood for substantial appreciation of those assets subsequent to the marriage of the parties.[2]

Included with the agreement was plaintiff’s disclosure statement, which provided that he already had approximately $400,000 in net worth.[2]

Because the antenuptial agreement prohibited the award of any spousal support, the trial court did not award any.[2]

YOU MAY BE INTERESTED TO KNOW.

In Michigan, antenuptial agreements “may be voided (1) when obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of a material fact, (2) if it was unconscionable when executed, or (3) when the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.” Reed v Reed, 265 Mich App 131, 142-143; 693 NW2d 825 (2005). The party challenging the validity of an antenuptial agreement carries the burden of proof and persuasion. Id. at 143. [2]

“To determine if a prenuptial agreement is unenforceable because of a change in circumstances, the focus is on whether the changed circumstances were reasonably foreseeable either before or during the signing of the prenuptial agreement.” Woodington v Shokoohi, 288 Mich App 352, 373;793 NW2d 63 (2010).[2]

DID YOU KNOW THE FOLLOWING IS HOW THE COURTS DECIDE TO DIVIDE YOUR PRIOPERTY.

However, generally, assets earned by one spouse during the marriage are nonetheless considered part of the marital estate. Korth, 256 Mich App at 291. When dividing the marital estate, trial courts may consider the following factors:
(1) the duration of the marriage, (2) the contributions of the parties to the marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life situation of the parties, Prenuptial agreements . . . provide . . . people with the opportunity to ensure predictability, plan their future with more security, and, most importantly, decide their own destiny.[2]

The overriding principle is that “parties who negotiate and ratify antenuptial agreements should do so with the confidence that their expressed intent will be upheld and enforced by the courts.” Id. at 145. [2]

In this case, there is an antenuptial agreement that unambiguously provides that “[a]ny property acquired in either party’s individual capacity or name during the marriage . . . shall remain the sole and separate property of the party named on the account or the party who acquired the property in his or her individual capacity or name.” Nevertheless, defendant claims that the trial court incorrectly refused to consider dividing the property instead pursuant to MCL 552.23(1) and MCL 552.401. [2]
Presented by FLINT DIVORCE ATTORNEY  Terry R. Bankert 235-1970 1/9/15.#flintdivorce




SOURCE
[1]
Court: Michigan Court of Appeals (Published),Case Name: AXXXXX v. AXXXXX
e-Journal Number: 58909,Judge(s): Wilder, M.J. Kelly, and Fort Hood Decided 12/18/14


[2]
AXXXXX v AXXXXX,Before: M.J. Kelly, P.J., and Wilder and Fort Hood, JJ.,
Published Michigan Court of Appeals Opinion,Docket No(s) 308194
Lower Court Docket No(s) 10-110358-DM,Wilder, J.

[3]

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Monday, January 5, 2015

DO YOU WANT YOUR CHILDREN TO LIVE WITH YOU?



When you feel your children would be better of living with you rather than your ex spouse who has child custody what can you do? #childcustody

PROVE A PROPER CAUSE OR  CHANGE IN CIRCUMSTANCES

There are several important steps the first discussed here is a court determination that a” change of circumstances exists.”

Additional questions about change in custody can be found by contacting  Flint Divorce Attorney Terry R. Bankert 1000 Beach St. Flint MI 810-235-1970 or terry@attorneybankert.com #flintdivorce

A RECENT DENIAL OF A FATHER'S MOTION TO CHANGE CUSTODY
In a recent Michigan Court of Appeals Case, looking at Kent Circuit Court,LC No. 12-005913-DM case Defendant father  appeals as of right a May 13, 2014 order, with several other issues, denying his motion for change of custody in regard to the parties’ minor child,

TO DETERMINE CHANGE OF CIRCUMSTANCES REQUIRES IS WHAT IS COMMONLY CALLED A VODVARKA HEARING

In Child custody modification of a custody order the controlling state statute is; MCL 722.27(1)(c) while the controlling case law is Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “

When the Michigan Court of Appeals reviews a child custody modification of a County trial court decision, here ,Kent Circuit Court,LC No. 12-005913-DM,  to deny a motion for change in custody   it determines  whether the trial court's finding that there was no "change of circumstances" or "proper cause" was against the great weight of the evidence; MCL 722.28;[1]

The Michigan Court of Appeals recently  held that the trial court,Kent Circuit Court,LC No. 12-005913-DM,  did not err by denying the defendant-father's motion for change of custody of the parties' minor child.[1]

The Michigan Court of Appeals held that the trial court's, In the Kent case,  finding that there was no change of circumstances or proper cause to support a change in custody was not against the great weight of the evidence.[1]

"None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child's life or well-being.[1]

 HOW A CHANGE OF CUSTODY DECISION IS MADE. THE FIRST HURDLE .

A child custody award may only be modified after there has been “proper cause
shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “[1]

The movant, the parent that wants a change,  of course has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists . . . .” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “ [1]

Proper cause” sufficient to warrant revisiting a custody order “means one or
more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.[1]

THE COURT LOOKS AT FACTS THAT HAVE CHANGED  SINCE THE ENTRY OF THE LAST ORDER  THAT ARE IMPORTANT OR MATERIAL TO THE CHILDS BEST INTEREST

To demonstrate a change of circumstances meriting consideration of a custody change, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially ]changed.” Id. at 513.  [1]




“[T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513-514. [1]

In the Kent Circuit Court,LC No. 12-005913-DM case the court did not find the required change in circumstances


As stated above a child-custody award may only be modified after there has been “proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c).  [2]

The purpose of the proper cause or change-of-circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003), [2]

None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child’s life or well-being. See Vodvarka, 259 Mich App at 512-513.[1]

At most, father’s allegations amount to nothing more than normal life changes for the child or minor inconveniences to father in his attempts to interact with mother. See id. at 512-514.[1]

While it is true that “a stipulation by the parties regarding a matter of law is not binding
on a court,” see Staff v Johnson, 242 Mich App 521, 529; 619 NW2d 57 (2000),the Michigan Court of Appeals  cannot characterize the factually based change-of-circumstances issue as purely a “matter of law.” In Vodvarka, 259 Mich App at 512, the Court stated, “Often . . ., the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the
facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.”[2]

In Washtenaw Circuit Court LC No. 13-001155-DC  the consent order did not reflect a clear temporary arrangement. Instead, it explicitly stated, “the parties stipulate that the parties minor child shall attend kindergarten in the State of Michigan until there is a determination of change of custody” (emphasis added).[2]

The parties stipulated on July 29, 2013, that there was, in fact, a change of circumstances, and the legal standard was satisfied. Vodvarka, 259 Mich App512.[2]

Under all the circumstances, the Michigan Court of Appeals  found “we conclude that the Washtenaw Circuit Court LC No. 13-001155-DC  ultimately erred in finding no change of circumstances sufficient to warrant a revisiting of the original custody order.[2]

If you have additional questions about change in custody please contact Flint Divorce Lawyer Terry R. Bankert 1000 Beach ST. Flint MI 810-235-1970 or terry@attorneybankert.com

Source [1]
STATE OF MICHIGAN COURT OF APPEALS,Before: M.J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.PER CURIAM.,UNPUBLISHED November 20, 2014
v No. 322082 Kent Circuit Court,LC No. 12-005913-DM

Source [2]
STATE OF MICHIGAN COURT OF APPEALS
UNPUBLISHED November 18, 2014 v No. 320871
Washtenaw Circuit Court LC No. 13-001155-DC
e-Journal Number: 58667

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Sunday, August 10, 2014

YOUR ARE INVITED TO JOIN THE FACEBOOK GROUP " FLINT CITIZEN COMMITTEE ON GOVERNANCE"

FCCG update 8/10/14 10:30 am
Let's be the first Citizens Group to take a position on the #Flint City Charter related ballot questions  announced to be on the November 2014 ballot .
Join us in person 1714 Oklahoma Flint Mi or online at

WHEN,On Wednesday 08/13/14 at 6 pm.
WHERE in the basement studio of Flint Talk Radio  1714 Oklahoma Flint Mi  or online at the link above.
WHAT, the First meeting of the Facebook group "Flint Citizens Committee on Governance"  (FCCG ) will meet live streamed in the studio.
WHY, advocate master plan implementation, zoning changes to comport with the master plan, charter revision to comport with the master plan.
WHO, those who choose to participate in person or online .
One Mission I will propose is that a process is decided for FCCG to take a position on the November 2014 ballot Q's the the Flint City attorney on 8/12/14 or the day before our meetings has submitted.
I understand the issues  from the City Attorney to be three;
1. Vote in November to form a Flint Charter Commission.
2. Vote in November to eliminate the offices of civil service and
3. Vote in November to eliminate the Ombudsman by charter amendment.
FCCG may be the first organization to take a position on these issues.
An Opportunity for part of the community to voice its opinion.
If FCCG decides to take a position,  how will it be done and when?
If you like transparency it is the order of the day.
FLINT TRILOGY OF CHANGE
At This meeting will also be a discussion concerning, if time permits,my concept of the Flint Trilogy of Change and what other actions can we collectively begin.
I will run it as a GA unless those present decide otherwise.

GA  means general assembly or townhall.
Meeting .

As facilitator I will run/chair the first meeting. The idea is to function by consensus. Total agreement of those present. Work groups create the action. We will let these objectives develop by the group.


The trilogy of change in Flint continues to come together.

1. Creation of a Master Plan.
2.Change the city zoning to match the priorities of the master plan.

3.By ballot form a charter commission some want it with the leaders of step 1 &2 . Use the charter commission to Write a new charter to reflect the values of the master plan and change Flints form of government from the failed strong mayor to city manager .
My opinion is that By human nature those who gained power to do step 1 continue in 2. These same people will be organizing to elect themselves to control step three.

Again my opinion,All is being done in consort with the consent and direction of the emergency manager ,who answers to the Governor ,who is an friend of the Uptown Six a private corporation that effectively owns downtown and is re shaping it to match the vision of the Mott Foundation.
In the use of scarce resources its the Downtown vs Neighborhoods
Downtown is having it’s way .
Trickle Down revitalization of Flint .
What helps downtown will trickle down to the neighborhoods .
The only way left to work for neighborhood revitalization is to back neighborhood candidates for the Flint Charter Commission.
I will join with you and other members of the Flint Community to make sure an informed cross section of Flint is represented on the Charter Commission.
I hope FCCG provides a vehicle to do just that.
What should our plan be ?
What do you think?
Join us by watching the live stream .

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