Mediation, Arbitration and Final Property Division

posted here By Attorney Terry Ray Bankert 810 235-1970
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Issues: Divorce; Property division;

The parties in this case have adult children in a 42 year marriage and a separate maintenance agreement had ben entered after 36 years. The Husband was 71 yrs old and a retired bricklayer. The wife never worked outside the home and was 56 yrs of age.

Here the court must divide marital property.

Generally , the division must be equitable, just, and reasonably fair under the circumstances. This generally means a 50/50 split. Any significant departure from congruence must clearly be explained.

The following factors should be considered.
The duration of the marriage.
The parties contribution to the marital estate.
The parties age.
The parties health.
The parties life status.
The parties necessities and circumstances.
The parties earning ability.
The parties past relations and conduct.
The general principles of equity.[fairness]
see Sparks at 440 Mich 141.

The parties had agreed to binding arbitration.

The parties may stipulate to binding arbitration by the Domestic Relations Arbitration Act. DRAA MCL 600.5070 et seq and MCR 3.602. Among other domestic relations issues arbitration may resolve real and personal property division, costs and fees, enforce ability of prenuptial and antenuptial agreements and the allocation of marital debt. MCL 600.5071

The award and any other orders issued by the arbitrator are enforceable in circuit court in the same manner as if the court had issued them MCL 600.5079 (1).

Here the issue was whether the trial court properly incorporated the arbitrator’s binding decision concerning the property division (adopted in the prior judgment of separate maintenance) into the divorce judgment.

Whether the trial court should have instead resolved the property settlement anew in the divorce judgment; Lentz v. Lentz; Keyser v. Keyser; Res judicata; Engemann v. Engemann; Spousal support; Moore v. Moore; Magee v. Magee; Kurz v. Kurz;

Whether the trial court was obligated by the arbitration award to impose a sanction for the plaintiff-husband’s attempt to conceal or dispose of a small portion of monies in a brokerage account; Binding effect of an arbitrator’s decision; MCR 3.602(1); Attorney’s fees; Reed v. Reed; Appellate fees and costs; MCR 3.206©)(1) and (2)(a); Reassignment of the case by the chief judge; Waiver; Doctrine of invited error

Court: Michigan Court of Appeals (Unpublished)

Case Name: Carl Lucio Vendittelli Plaintiff v.Wanda June Vendittelli Defendant
Lower Court Wayne County NO. 04-412147 DO

e-Journal Number: 33768 State Bar of Michigan Monday 11/13/06 this posting has modified 33768

Judge(s): Per Curiam – Borrello, Jansen, and Cooper

Under the reasoning of Lentz,271 MA 465,2006 because the parties clearly and unambiguously agreed to binding arbitration of the division of their marital property in a consent order for binding arbitration, the trial court did not err in incorporating the arbitrator’s decision concerning the property division (which was adopted in a prior judgment of separate maintenance) into the judgment of divorce rather than resolving the property distribution anew in the divorce judgment.

The parties’ agreement must be enforced as written, which rendered the property division in the arbitration award binding.

Like the separation agreement in Lentz,, the parties’ arbitration agreement was a contract. The public policy reasons favoring upholding a property agreement negotiated by parties seeking divorce or separate maintenance equally apply where the parties enter into an agreement to permit an arbitrator to resolve issues such as property distribution.

By agreeing to arbitration, the parties essentially consented in advance to the arbitrator’s distribution of their property.

There was no evidence of coercion, duress, or fraud and the defendant-wife did not argue there was coercion, duress, or fraud in the context of signing the consent order to arbitrate. Rejecting both parties’ arguments regarding the award of spousal support, the court further held the trial court’s award to the defendant of $600 monthly spousal support, together with its order plaintiff pay $220 a month for defendant’s health insurance, was equitable.

The judgment of divorce was affirmed. --end case-

Any contested issues in a divorce proceeding may be submitted to mediation. MCR 3.216 (C ) (2 ). This does not affect the Friend of the Court Mediation process. A domestic relations mediation action is referred to mediation through written stipulation, on a party's written motion, or the judges own order. MCR 3.216 (C ) (2).

If the parties request and the mediator agrees, the mediator may provide a written recommendation for settlement of any isues that remain unresolved at the end of mediation. MCR 3.216 (A) (2).

Each party must agree in writing before mediation to pay the mediator and it can be expense.
Domestic mediation is done by one mediator usually appointed by the court. A session is scheduled within a reasonable time. Each side before the mediation will provide a summary of the case.
-the facts and circumstances of the case
-the issues in dispute
-a description of the marital assets and their estimated value
-the partiers income and expenses
-a proposed settlement
-documentary evidence

Mediation is a negotiated settlement by the mediator. Arbitration is a final decision with the arbitrator stepping into the shoes of the judge. Arbitration is:
-voluntary
-binding and the right of appeal is limited
-arbitrators power and duties outlined in written agreement
-the cout will enforce the arbitrators decisions
-the parties may have attorneies
-the parties pay for the arbitrator.

Arbitration is governed by DRAA MCL 600.5070


Posted here By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.http://terrybankert.blogspot.com/

Articles on Divorce and Lawyers in Flint, Genesee County Michigan USAhttp://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html

Do you need help now? Call 810 235-1970 !