Elizabeth Cioffi-Petrakis used FRAUD BY INDUCEMENT BREAK A PRE NUP AGREEMENT

Elizabeth Cioffi-Petrakis used FRAUD BY INDUCEMENT BREAK A PRE NUP AGREEMENT

Flint Divorce Attorney Terry Bankert discusses a New York case and applying Michigan Law. For additional information call 810-235-1970 or www.attorneybankert.com

IN MICHIGAN The decision in Rinvelt v Rinvelt, 190 Mich App 372, 475 NW2d 478 (1991), imposes a requirement of ostensible fairness. [2]

A NEW YORK MOTHER WAS TREATED UNFAIRLY

A Long Island mother of three has become a postnuptial hero, after a prenup nearly cost her everything. In a landmark case, Elizabeth Cioffi-Petrakis, 39, won an appeal overturning a bizarre premarital agreement with her millionaire husband.[1]

Prenuptial (also called antenuptial or premarital) agreements are becoming increasingly popular as divorce rates climb and second marriages become more common.[3]

Now she says she may be entitled to half of her ex’s worth when their divorce becomes final.[1]

In Michigan,MCL 557.28 provides that “[a] contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place.”

The win, say matrimonial law experts, is huge.
“This is unprecedented in the family law world,” celebrity divorce lawyer Vikki Ziegler told Yahoo! Shine. “This is a landmark decision that will likely be litigated a great deal in the future in similar cases for those who feel their prenups are unconscionable.”[1]

RINVELT CONTROLS IN MICHIGAN

The landmark case that removes any doubt about the enforceability of antenuptial agreements in Michigan divorce cases is Rinvelt v Rinvelt, 190 Mich App 372, 475 NW2d 478 (1991). The court noted that no Michigan case had specifically held that antenuptial agreements are enforceable in the context of a divorce case. Michigan now holds that they are. Id. at 379. [2]



So how did it happen?

“I won it because I pretty much did it myself,” Cioffi-Petrakis told Yahoo! Shine. “I had three prior attorneys who messed up my case big-time. And I was pretty much dead in the water until I got educated.[1]”

To win the case, Cioffi-Petrakis had to prove in a Long Island court that her husband, commercial property developer Peter Petrakis, coerced her into signing the prenup. She claims he dropped the premarital bomb four days before their wedding day in 1998, leaving her with little time for a contractual dispute.[1]
IN MICHIGAN,The Rinvelt court held that the following factors be considered in determining the enforceability of a prenuptial agreement:

1. Was the agreement obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of material fact?
2. Was the agreement unconscionable when executed?
3. Have the facts and circumstances changed since the agreement was executed, to make its enforcement unfair and unreasonable?

Rinvelt, 190 Mich App at 380. [2]



She also told the court the agreement included promises her ex never intended to keep[1]

. Among those promises, she said, was that he would add her name to the deed of their Old Brookville home, and that he would destroy the prenup after the birth of their first child. [1]

“He claimed he was just protecting his business, and that his lawyers made him have a prenup,” Cioffi-Petrakis said. “And me, a naïve young girl, I believed it.” She added that she’d been with Petrakis since she was 18 years old—six years before they were married—and that she was so committed that she’d converted from Catholicism to his religion of Greek Orthodox.[1]

“I loved him, I trusted him and I believed in his word,” she explained.
[1]

But when he did not put the house in her name, and when she first gave birth 12 years ago to twin boys (and then later to a daughter, now 8), the two began what would be come a years-long journey in and out of lawyers’ offices to contest the prenuptial agreement.[1]

Then finally, in January, a judge ruled in Cioffi-Petrakis’s favor, finding that she had successfully proven what is called “fraud by the inducement” in a contract. To do that, Cioffi-Petrakis explained, she presented the court with “patterns of behavior” to show that Petrakis “was not honest when he made the promises.”[1]

Ziegler, author of “The Pre-Marital Planner,” further explained the court’s decision to Shine. “Many couples discuss the terms of their prenups and say they will do or say things in the future that are not memorialized in writing,” she said. “However, this fraudulent inducement to buy a house, put the marital home in joint name and make other financial incentives after the parties wed appeared to sway the appellate panel who agreed to set aside the prenuptial agreement based on fraud.”.[1]

Petrakis did not return a message left for him by Shine at one of his businesses, the One Stop Smoke Shop in Seaford, Long Island. His lavish Old Brookville home was featured in a 2010 New York Times story, “Over-the-Top Houses,” described as a “newly renovated shingle and stone farm ranch on 2.29 acres,” and equipped with a “lower-level nightclub” featuring a 24-foot onyx bar, 1,200-bottle wine cellar and a DJ booth. His chain of smoke shops, according to the New York Post, is worth “at least $5 million.”.[1]

Cioffi-Petrakis told Shine that she (with much help from her parents) shelled out nearly $475,000 in lawyers’ fees over the years, and that her husband has paid more than $600,000. “And we haven’t even gotten to the divorce,” she said. Despite the fact that the couple have been estranged since 2010 when Petrakis first filed for divorce, the proceedings were put on hold by the court until the the prenup matter could be settled. Now the two will be able to move ahead to make their split official..[1]

The pressure of the case pushed her to extremes. “I almost took my own life because of the depression and stresses,” she said. “I wound up in the hospital with a nervous breakdown.”.[1]

A positive outcome of the ordeal, though, has been Cioffi-Petrakis starting her own business, Divorce Prep Experts, a divorce-court advisement service, which has been slowly getting off the ground since 2008.[1]

“I’m not a lawyer, but I think I have advocated for myself better than any lawyer has,” she said. “My mission is to empower and protect anyone in this position. I know what to look out for, and I bring reputable professionals together to help.” Her company, she said, offers her clients invaluable advice and knowledge from judges, mediators, divorce coaches and child psychologists, in the hopes of saving time and money through the divorce process. [1]

Prenuptial agreements are clearly enforceable under Michigan law. MCL 557.28 provides that “[a] contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place.[4]

SOURCE---

[1]
http://shine.yahoo.com/love-sex/wife-of-millionaire-wins-unprecedented-case-to-overturn-prenup-agreement-182017682.html


[2]
Michigan Family Law ch 3 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2011553510&chapter=03
(last updated 03/01/2013).

[3]
Michigan Family Law ch 15 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2011553510&chapter=15
(last updated 03/01/2013).

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Attacked by Domestic Partner you may consider a PPO call 235-1970

On 03/05/12 on WFLT 1420 AM Radio I will Talk about Personal Protection Orders or PPOs


When you are in a domestic relationship a PPO is appropriate if you can demonstrate that you have been assaulted or threatened with harm by the your partner MCL 600.2950.

Specifically, the Judge must issue a PPO if it is found that there is reasonable cause to believe that your partner might commit one of the prohibited acts. MCL 600.2950(4).

When you file a PPO you must include specific incidents of assaults or threats and describe the injuries resulting from the specific incidents of abuse.

We know that Emotional abuse can be as devastating as physical battering; therefore, such incidents should be included in your petition.

In ruling on the motion, your judge must consider testimony, documents, and other evidence and whether your partner previously committed or threatened to commit acts of violence. Id.

You should ask for entry of the order ex parte if notice to your partner might precipitate additional harm.

To justify a request for an ex parte PPO, the you must clearly allege facts that support the conclusion that “immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before the PPO can be issued.” MCL 600.2950(12).

Most domestic violence survivors can easily meet this standard with specific reference to their partners past violence and allegations that prior notice will result in the partners further violence or coercion of you to dismiss the petition.

The ex parte provisions of the PPO statute were declared constitutional in Kampf v Kampf, 237 Mich App 377, 603 NW2d 295 (1999).

The PPO petition should focus on the imminence of the actual or threatened harm and the irreparable injury you will suffer if the PPO is not granted.

The attorney representing you must allege facts, not merely generalizations. The petition must give persuasive reasons why you need the protection of a PPO.

For example, a threatened harm could be a promise to kill you, to beat you senseless, or to never allow you to sleep. A completed harm might be sexual assault, punching, kicking, slapping, choking, or stabbing you. Especially chilling are the acts designed to defeat criminal detention by inflicting maximum pain with minimal evidence of physical injury, such as pulling hair and squeezing or bending limbs and fingers. Completed harm could also include frequent or late-night telephone calls at home or at work, following the victim, slashing car tires, banging on or breaking into doors and windows at the victim’s home, burning the victim’s house, or torturing or killing pets.

A pattern of past and an expectation of future harm and the degree of seriousness of the harm are essential concepts. To establish such a pattern, the complaint should recite the specific dates that incidents occurred, along with the extent of bodily harm, the extent of property damage, the explicit content of threats, whether medical treatment was necessary, whether any of the couple’s children were present during the assault or were in danger, and whether the police were involved.

Repeated minor offenses or at least one serious incident coupled with indications of continuing trouble may justify issuance of a PPO. By the same token, one isolated incident or a pattern that ended some time ago (without an explanation of why a PPO is needed now) may not be sufficient.

There are few reported appellate decisions that address domestic relationship PPOs and the facts that are sufficient to justify their issuance. In Kampf, allegations of verbal abuse, spousal rape, bruising, pushing, and shoving were sufficient. In Pickering v Pickering, 253 Mich App 694, 702, 659 NW2d 649 (2002), partner’s threats to break down a door that you had braced shut, “rage” in partner’s voice, and partner’s use of a yardstick to probe underneath the braced door were sufficient to authorize a PPO. However, the judge of appeals noted that the facts in Pickering made the issuance and continuation of the PPO a “close call.” 253 Mich App at n3. In Jannaro v Schamp, No 210740, 1999 Mich App LEXIS 2235 (Dec 21, 1999) (unpublished), partner’s use of abusive language, violent behavior, and threats to kill you and her family were sufficient to justify a PPO.
[source]
Michigan Family Law Judges Bench Book.

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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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DID YOU KNOW;
www.attorneybankert.com

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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