Tuesday, February 26, 2013

GOOD MORNING FLINT! by Flint Divorce Attorney Terry R. Bankert terry@attorneybankert.com

GOOD MORNING FLINT! by  Flint Divorce Attorney Terry R. Bankert terry@attorneybankert.com
02/26/13 ...Chapter 2: Marriage, Annulment, and Separate Maintenance.
I will talk about these issues live at 8:45 am 02/26/13 WFLT 1420 a.m. radio Flint Mi.
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Annulment
General rules regarding annulment. §§2.8–2.9, §§2.20–2.23.
Annulment is a judicial determination that a valid marriage did not occur.
Annulment dissolves two categories of marriage:
  • Marriages void ab initio—void from beginning (although not favored, can be attacked after death of one or both parties)
  • Voidable marriages—valid until a party brings an action to annul (must be brought while both parties are living)
Either party may file a petition or complaint for annulment in the family division of the circuit court in the county where at least one party resides. There are no length-of-residence requirements.
Children of an annulled marriage:
  • the children are legitimate (for nonage, incompetence, and bigamy, the children are the legitimate offspring of the party capable of contracting marriage)
  • the court provides for the custody and support of the children of an annulled marriage, regardless of grounds (and while annulment action is pending)
Property awards—same principles as in a divorce.
Attorney fee awards—same principles as in a divorce.
Grounds.


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Separate MaintenanceProcedure. §2.24.
  • The action is filed in the same manner and on the same grounds as divorce (same residency requirements) (see §1.3).
  • When a judgment of separate maintenance is entered, the parties are still married, but the court may divide marital property and order spousal support.
  • A separate maintenance action will result in a divorce if the defendant files a counterclaim for divorce and the statutory grounds are met.


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Marriage
A. Requirements for Marriage
§2.1 For a marriage to be valid in Michigan, the parties must
  • not be married already,
  • not be of the same sex,
  • not be related within a prohibited degree of consanguinity or affinity,
  • be of marriageable age,
  • be capable in law of contracting, and
  • enter the marriage without fraud or duress.
MCL 551.1, 552.1, .2.
People who wish to marry must first obtain a license from the clerk in the county where one of the parties resides. If neither party is a Michigan resident, the license should be obtained in the county where the marriage will be performed. MCL 551.101.


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1. Foreign Marriages
§2.2 A marriage valid where contracted is valid everywhere. Toth v Toth, 50 Mich App 150, 152, 212 NW2d 812 (1973); see also Noble v Noble, 299 Mich 565, 300 NW 885 (1941). This includes a marriage solemnized in another country, even though the marriage would not have been valid had it taken place in Michigan. Toth (court upheld validity of marriage of first cousins that occurred in Hungary and was valid under Hungarian law). However, a marriage that is valid in another country generally need not be recognized as valid if it is bigamous, incestuous, or otherwise violates a strong public policy of the forum state. 52 Am Jur 2d Marriage §§82–84. A same-sex marriage solemnized in another state is not valid in Michigan. MCL 551.272. See §2.4.
A marriage that takes place on Indian territory and that conforms to local Indian laws or customs is recognized as valid. See 55 CJS Marriage §5 at 555, §12.


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2. Common-Law Marriages
§2.3 Common-law marriages are invalid in Michigan as of January 1, 1957. MCL 551.2. The only common-law marriages recognized in Michigan are those (1) entered into before that date or (2) legally consummated in a state recognizing them. A common-law marriage is one that does not meet the requirements of a formal statutory marriage. Typically, it is an agreement to take each other as husband and wife, followed by cohabitation. See John De Witt Gregory, Peter H. Swisher, & Sheryl L. Wolf, Understanding Family Law §2.05 (3d ed 2005). See also Michigan Family Law exhibit 4.1 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011) for a list of states that recognize common-law marriages.


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3. Same-Sex Marriages
§2.4 Michigan does not recognize same-sex marriages. In 1996, the Michigan legislature amended the statutes governing marriage to provide that same-sex marriages are invalid, MCL 551.1, and that a same-sex marriage solemnized in another state is not valid in Michigan. MCL 551.272.
On November 2, 2004, Michigan voters approved Proposal 04-2, adding article 1, section 25 to Michigan’s Constitution, which states:
To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.
Mich Const 1963 art 1, §25.
In 2005, the attorney general opined that this amendment prohibits state and local governmental entities from conferring benefits on their employees on the basis of a “domestic partnership” agreement that is characterized by reference to the attributes of a marriage, but that the amendment applies prospectively only, i.e., it does not invalidate existing contractual obligations. OAG No 7171 (Mar 16, 2005). In National Pride at Work, Inc v Governor of Michigan, 481 Mich 56, 748 NW2d 524 (2008), the Michigan Supreme Court held that the marriage amendment prohibits public employers from providing health-insurance benefits to their employees’ qualified same-sex domestic partners.
The attorney general has also opined that because same-sex marriages are not recognized in Michigan, a same-sex couple may not adopt a child together in Michigan. OAG No 7160 (Sept 14, 2004). However, under MCL 710.24, one of them may adopt a child as a single person.


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5. Presumption of Validity; Retroactive Validation
§2.6 A strong presumption exists favoring a marriage’s validity. Once the celebration of a marriage is shown, the contract of marriage, the capacity of the parties, and everything necessary to the validity of the marriage are presumed. Doertch v Folwell Eng’g Co, 252 Mich 76, 233 NW 211 (1930); Mogk v Stroecker, 243 Mich 668, 220 NW 730 (1928) (final divorce decree not entered in court files; based on equities of controversy, court recognized validity of second marriage). This presumption includes that the person officiating has the necessary authority to perform the ceremony. In re Estate of Adams, 362 Mich 624, 107 NW2d 764 (1961); Boyce v McKenna, 211 Mich 204, 214, 178 NW 701 (1920). The presumption of validity is one of the strongest presumptions known and its strength increases with the lapse of time, the birth of children, and the parties’ acknowledgment of their marriage. See May v Meade, 236 Mich 109, 210 NW 305 (1926); 55 CJS Marriage §52.
Once a marriage has been shown, the presumption is that the marriage continues. Doertch. A seven-year absence of one of the parties, however, gives rise to a presumption of death. Beckwith v Bates, 228 Mich 400, 200 NW 151 (1924); Heagany v National Union, 143 Mich 186, 106 NW 700 (1906).
If a person has been married to two different people, the presumption favors the validity of the second marriage. In re Williams Estate, 164 Mich App 601, 417 NW2d 556 (1987). The presumption favoring the validity of a second marriage prevails over the presumption of a prior marriage’s continuity. Weinert v Tallman, 346 Mich 388, 78 NW2d 141 (1956); Doertch. The presumption favoring the validity of a second ceremonial marriage may be rebutted by a showing of facts conclusively establishing the invalidity of the second marriage. Beaudin v Suarez, 365 Mich 534, 113 NW2d 818 (1962); Starr-Pope v Pope (In re Pope Estate), 205 Mich App 174, 517 NW2d 281 (1994). See also LeBlanc v Lentini, 82 Mich App 5, 266 NW2d 643 (1978), where the Michigan court recognized a California court’s order nunc pro tunc that changed the date of one of the spouse’s California divorce to a date before the couple’s marriage.


[] source
Michigan Family Law Benchbook ch 2 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2006553550&chapter=02
(last updated 02/15/2013).

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Monday, February 25, 2013

PERSONAL INJURY AND DIVORCE AWARDS-DIVISION OF MARITAL PROPERTY by Flint Divorce Attorney Terry R. Bankert 810-235-1970

PERSONAL INJURY AND DIVORCE AWARDS-DIVISION OF MARITAL PROPERTY by Flint Divorce Attorney Terry R. Bankert 810-235-1970

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The question presented follows.
“It was a very serious accident, it happened in 2008. I stayed home from work for my 12 allotted weeks to care for him. I worked every day, 12 hrs a day to ensure we got could hold out till the settlement and not lose our house. We got the settlement and he decided he wants a divorce and refuses to give me any money even though he got enough that if he gave me 1/3 I would not have to work ever again. If I hadn't worked the way I did he would have never gotten that much. We have 2 children and he is verbally abusive to them and me. Am I entitled to anything?” The short answer is yes.

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The presumption is the jurisdiction is Michigan and that the husband has to yet file for divorce. The wife should file for divorce or separate maintenance to stop dissipation of assets. The court will divide the assets as they exist on the date the judgment is entered or tried. A temporary order is used to preserve the assets. The wife is entitled to 50% of the joint assets and should be advised to file immediately

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To reach an equitable division of marital property, a trial court should consider the duration of the marriage, the contribution of each party to the marital estate,each party’s station in life, each party’s earning ability, each party’s age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal, 451 Mich at 89; Sparks, 440 Mich at 158-160. [1]

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The determination of relevant factors will vary with the circumstances of each case, and no one factor should be given undue weight.[1]

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Generally, an award for pain and suffering is separate property, but it may be divisible as separate property on a proper showing of need or contribution. Lee v Lee, 191 Mich App 73, 477 NW2d 429 (1991) (accident settlement); see also Wilson v Wilson, 179 Mich App 519, 446 NW2d 496 (1989). However, a recipient could be ordered to pay spousal support based on his or her enhanced estate or income from investing an award for pain and suffering. Bywater v Bywater, 128 Mich App 396, 340 NW2d 102 (1983).[2]

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Generally, marital assets are subject to division between the parties but the parties’ separate assets may not be invaded. McNamara, 249 Mich App at 183. [1]


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Stoudemire v Stoudemire, 248 Mich App 325, 639 NW2d 274 (2001), upheld the trial court’s finding that injured plaintiff’s pain and suffering award was his separate property, and that the lost wage portion of his award was marital property to be divided 50-50. The court relied on expert testimony to calculate what portion of the award was truly for economic damages.[2]

SOURCES
[1]
Woodington v Shokouhi, 288 Mich App 352, 792 NW2d 63, published 5/4/10

[2]
Michigan Family Law Benchbook ch 8 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2006553550&chapter=08 (last updated 02/15/2013)

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Sunday, February 24, 2013

RIGHT TO WORK AND THE MICHIGAN WORKER




In competition for scarce resources when battling public policy or opposing candidates I know that my opponents will bring the Giants of Corporate America with them to do battle. I will want to bring my own giant to this fight and that would be organized labor. Without Organized Labor the fight can never be fair because they will not.
see; http://www.aflcio.org/Legislation-and-Politics/State-Legislative-Battles/Ongoing-State-Legislative-Attacks/Right-to-Work-for-Less shown as IDW#100


By making unions weaker, these Right to work laws lower wages and living standards for all workers in the state. In fact, workers in states with these laws earn an average of $5,680 less a year than workers in other states. IDW#100-1


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Higher Rates of Death on the Job
The rate of workplace deaths is 36 percent higher in states with these Right to Work laws, according to data from the Bureau of Labor Statistics.IDW#100-1


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Less Investment in Education
States with "right to work" laws spend $3,392 less per pupil on elementary and secondary education than other states, and students are less likely to be performing at their appropriate grade level in math and reading.IDW#100-1


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The infant mortality rate is 15 percent higher in states with these Right to Work laws.IDW#100-1


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Higher Poverty and Infant Mortality Rates
Poverty rates are higher in states with "right to work" laws (15.3 percent overall and 21.5 percent for children), compared with poverty rates of 13.1 percent overall and 18.1 percent for children in states without these laws IDW#100-1
.


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Only 50.7 percent of employers in states with these Right to Work laws offer insurance coverage to their employees, compared with 55.2 percent in other states. That difference is even more significant among small employers (with fewer than 50 workers)—only 34.4 percent of them offer workers health insurance, compared with 41.7 percent of small employers in other states.IDW#100-1


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States with Right to Work Laws are less likely to have job-based health insurance than people in other states (56.2 percent, compared with 60.1 percent).IDW#100-1

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Less Job-Based Health Insurance Coverage
People in states with "right to work" laws are more likely to be uninsured (16.8 percent, compared with 13.1 percent overall; among children, it’s 10.8 percent vs. 7.5 percent).IDW#100-1

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