Friday, November 9, 2007

Division of marital property

Terry Bankert
first post to Flint Talk

I will talk about this following case on my radio show WFLT 1420 a.m. radio. Call in your family law questions 239-5733 9 a.m. until 9:30 a.m. every Saturday morning.

In a case called Bowditch
unpublished from the Michigan Court of Appeals , No 270647 was decided on 10/23/07. It arose from the Ottawa Circuit Court N0. 05-051948-DO the following issues were decided.
See full article at:

Issues: Divorce;

1.Whether the trial court properly subtracted certain real property from the marital estate and awarded it to the plaintiff-husband as his separate property; Sparks v. Sparks; Reeves v. Reeves; Dart v. Dart;

2.Whether plaintiff intended for his property to be commingled with the marital property; Pickering v. Pickering;

3.Whether the trial court should have invaded the husband’s separate property to pay for the defendant-wife’s reasonable expenses; Grotelueschen v. Grotelueschen; Charlton v. Charlton;

4.Whether defendant contributed to the acquisition, improvement or accumulation of the property;

5.Whether the trial court equitably divided the marital property; Hanaway v. Hanaway; Whether the trial court considered the Thames factors; MCL 552.23; Olson v. Olson; Korth v. Korth;

6.Whether the trial court properly awarded defendant $205 per month from plaintiff’s pension benefit


1.The trial court did not err when it held, inter alia, the plaintiff-husband was entitled to certain real property as his separate property.
2.The parties did not dispute the real property at issue was owned by plaintiff before the marriage or received by him as an inheritance or gift after the marriage.
3.Although the defendant-wife contended all of plaintiff’s real property was commingled and became marital property because he transferred the ownership of the properties into joint title with her a year or two after the marriage, the court disagreed.
4.Transfer of title into joint names can indicate the parties’ intent the separate property had become marital property.
5.However, title alone is not dispositive—rather, the parties’ intent to make separate property marital property is the determining factor.
6.After review of the record, the court concluded the trial court did not clearly err when it determined plaintiff did not intend to make his separate property marital property when he redeemed the property into joint names.
7.Further, less than two years after plaintiff deeded the real property into joint ownership, the couple redeemed the properties to their individual trusts.
8.The court also found unpersuasive defendant’s contention because plaintiff executed a will and wrote a letter explaining his wish to ensure defendant’s financial well-being should he predecease her, his separate property became part of the marital estate.
9.Defendant provided no authority to support her claim testamentary intent is relevant to whether or not property is commingled during life, and the court found no such authority.
10.The court held it did not believe testamentary intent was indicative of the intent to commingle property in life.
11.The court also affirmed the remaining aspects of the trial court’s decisions regarding the property settlement, spousal support, and the award of plaintiff’s pension.


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