Saturday, November 18, 2006

Property division in divorce, marital home, pension etc...

By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA

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In Barger, Michigan Court of Appeals unpublished no 263020 from Monroe Circuit Court LC NO. 04-029627-DM

Issues: Divorce; Property distribution; Sparks v. Sparks; The trial court’s award to the plaintiff-wife half of the proceeds from the sale of the marital home; Korth v. Korth; Whether the defendant-husband was entitled to the equity in the home because it was his separate asset; Reeves v. Reeves; Award to the plaintiff of half of the defendant’s IRA pension; MCL 552.18(1); Magee v. Magee

Court: Michigan Court of Appeals (Unpublished)

Case Name: Barger v. Barger

e-Journal Number: 33807 [modified here for this venue by Terry Bankert]

Judge(s): Per Curiam – Fort Hood, Murray, and Donofrio

Concluding the trial court’s factual findings were not clearly erroneous and its division of the proceeds from the sale of the marital home and the defendant-husband’s IRA pension were fair and equitable, the court affirmed the judgment of divorce.

The parties were married for several years and the evidence showed each contributed to the family expenses during the marriage. While defendant entered into a land contract to buy the home before the parties married, they lived together in the home before and during the marriage and improved the property together.

Plaintiff took out a mortgage on the home in her name, using the proceeds to pay off the land contract and to make home repairs. Improvements were made to the patio, landscaping, kitchen, and other areas.

Plaintiff also contributed to the addition of an extra room to the home and an outside pool. Her contributions to the home more than likely increased its value.

The trial court properly determined the home was a marital asset and plaintiff was entitled to half its value. Defendant admitted he started the IRA when the parties first married and he contributed to it during the marriage. Plaintiff liquidated an $11,000 IRA she had during the marriage when defendant was unemployed and family finances were "tight."

Both parties worked for most of the marriage and contributed to the family finances. Defendant’s pension was clearly part of the marital estate, which entitled plaintiff to half of its value.

—end e journal— notes follow
-The conduct of the parties during the marriage may be relevant to the distribution of property. The trial court must consider all the relevant factors and not assign disproportionate weight to any circumstance. Sparks v Sparks 440 Mich 141, 158 , 485 NW2d 893 (1992)


1.duration of the marriage

2.contribution of the parties

3.age of the parties of the parties status of the parties

6.necessities of the parties

7.earning abilities

8.past relations and conduct of the parties

9. Principals of equity.

-The goal in distribution of marital assets is to reach an equitable distribution in light of all of the circumstances. Gates v Gates 256 Mich App 420, 423, 664 NW2d 231 (2003)

-The parties shared and maintained the marital home which gave both parties an interest in any increase in value during the course of the marriage. Korth v Korth 256 Mich App 286, 293-294, 662 NW2d 111 (2003)

- Pensions are considered part of the marital estate and may be distributed through a property division upon divorce. MCL 552.18 (1). Magee v Magee 218 Mich App 158, 164, 553 NW2d 363 (1996)

By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA

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Tuesday, November 14, 2006

#17 Domestic Violence.

By Attorney Terry Ray Bankert 810 235-1970
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

Articles on Divorce and lawyers in Flint, Genesee County Michigan USA

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What Is Domestic Violence?

Domestic violence is defined a pattern of behavior used to establish power and control over another person through fear and intimidation.

This is accomplished by:

physical violence
isolation from friends and family
verbal abuse( belittlement, taunting)
intimidation (destroying property, abusing pets, displaying firearms)
economic abuse ( controlling access to money,
preventing or interfering with employment)
coercion ( threatening to commit suicide or to report incidents to protective services)
use of the children ( harrassment during parenting time, threatening to kidnap the children)sexual abuse

Domestic violence occurs when one household member chooses to use a pattern of physical assaults, threats of violence and emotional abuse to maintain power and control over another.

All 50 states have statutes authorizing courts to issue orders of protection to domestic violence victems.

In Michigan, a victem of domestic violence may obtain a personal protection order (PPO) to enjoin abusive behavior. PPOs may enjoin specific actions such as assulting, attacking, beating, molesting, stalking, or wounding the petitioner. In addition they may be prohibited from entering specific premises usually including the petitioners home and place of employment.

They may also prohibit the removal of minor children from the legal custodian, purchasing or possessiong firearm and any other act that interferes with the petitioners personal liberty or that causes a reasonable apprehension of violence.

Knowing the definition of domestic violence can help you take action against it.

What kind of behavior is considered domestic violence?

Domestic violence can take a number of forms, including: physical behavior (slapping, punching, pulling hair or shoving) forced or coerced sexual acts or behavior (unwanted fondling or intercourse, or sexual jokes and insults) threats (threatening to hit, harm or use a weapon) psychological abuse (attacks on self-esteem, attempts to control or limit another person's behavior, repeated insults or interrogation) stalking (following a person, appearing at a person's home or workplace, making repeated phone calls or leaving written messages), or cyberstalking (repeated online action or email that causes substantial emotional distress).

Typically, many kinds of abuse go on at the same time in a household. Are PPO’s ( Personal Protection Orders) available only when the abuser is a spouse?No, the victim of an abusive live-in lover can obtain a PPO or emergency protective order.

In a few states, the victim of any adult relative, an abusive lover (non-live-in) or even a roommate can obtain such an order.

To learn about your state's rule, contact a local crisis intervention center, social service organization or battered women's shelter.

Domestic Violence: Taking ActionSuggestions to help you stop domestic violence.

If I leave, how can I make sure the abuser won't come near me again?

The most powerful legal tool for stopping domestic violence is the temporary restraining order (PPO).

A PPO is a decree issued by a court that requires the perpetrator to stop abusing you. The order may require, for example, that the perpetrator stay away from the family home, where you work or go to school, your children's school and other places you frequent (such as a particular church).

The order will also prohibit further acts of violence. In Genesee County MI go to the 2nd floor of the County Court House and The Genesee County Clerk has a special office to help you fill out a PPO.

Domestic Violence: Taking Action

In my community, judges don't issue PPO after 5 p.m. How can I get protection?Contact your local police department.How can I help my domestic violence case?

Many people go to court on their own to obtain a PPO. Some people go the very first time they are abused, while others wait until they can't live with it any longer -- sometimes for many years. What some fail to understand is that, despite the social awareness and sympathy surrounding domestic violence, the decision to grant a restraining order is based on law and legal process.

Because of this, there are steps you can take to increase your chances of succeeding in court. Police Reports. You should call the police if you feel threatened or have been a victim of violence. This is important for your physical safety, but it will also help your case in court.

The police must file a report documenting the incident whether you seek a restraining order or not. If you go to court for that particular episode or a future one, you get a copy of the report from the police station and take it to court. Photographs. Whether or not the police take pictures of any injuries, you should have a friend or family member do the same. (Police photos don't always make their way from the police file to the judge's courtroom in time for a restraining order hearing.) Ask your friend to take approximately ten pictures -- and be sure that she or he photographs your injuries from different angles, using both outdoor and indoor light. It's also important to photograph any property damage. Take pictures, for example, of any broken furniture, unhinged doors or holes in walls that resulted from the violence.

Domestic Violence: Taking Action

When you go to court dress as if you were going to a job interview. If this isn't an option for you, just be as neat and well-groomed as possible. Don't ever interrupt the judge while she is speaking.

This is the golden rule. No matter what she's saying, wait until she's through. Interrupting or arguing is a surefire way to prejudice that judge against you. When she's finished, you should politely ask permission to speak. Don't interrupt the opposing party. No matter what verbal concoction your opponent is spewing, he or she has the right to speak freely. Know that you will get your chance to explain or deny what's been said. Don't make faces of disgust or shake your head in disbelief during the proceedings. Also, try not to jump up and down if the judge decides in your favor. Very rarely does the decision rendered please everyone. It's best to adopt a professional demeanor and save the anger or celebration for private moments.

Domestic Violence: Taking Action

What should I do once I have a PPO?Register it with the police located in the communities in which the abuser has been ordered to stay away from you -- where you live, work, attend school or church and where you children go to school. Call the appropriate police stations for information about how to register your order.

What if the abuse continues even if I have a PPO?Obviously, a piece of paper cannot stop an enraged spouse or lover from acting violent, although many times it is all the deterrent the person needs. If the violence continues, contact the police. They can take immediate action and are far more willing to intervene when you have a PPO than when you don't. Of course, if you don't have a PPO or it has expired, you should also call the police , domestic violence is a crime and you don't have to have a PPO for the police to investigate.

The police should respond to your call by sending out officers. In the past, police officers were reluctant to arrest abusers, but this has changed in many communities where victims' support groups have worked with police departments to increase the number of arrests. You can press criminal charges at the police department, and ask for criminal prosecution. Documentation is crucial if you want to go this route.

Be sure to insist that the officer responding to your call makes an official report. Also, get the report's prospective number before the officer leaves the premises. If you do press charges, keep in mind that only the district attorney decides whether or not to prosecute. If you don't press charges, however, the chance is extremely low that the district attorney will pursue the matter.

Domestic Violence: Civil Liability Information to help you take legal action against your abuser. Can I sue the abuser for my injuries?Possibly.

When one person injures another in some way, that act is called a "tort." The person injured by the tort may sue the wrongdoer for damages. Legally, torts are known as civil (as opposed to criminal) wrongs. But some acts of domestic violence, such as battery, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties. One now famous example of a civil case is Goldman v. Simpson, in which Ron Goldman's parents sued O.J. Simpson for their son's death. Because Mr. Simpson was acquitted in the criminal trial, the Goldmans sued for money damages in civil court and won.

Domestic violence refers to physical harm inflicted on one member of a household or family, by another member of the same household or family (usually between spouses).

Domestic violence (sometimes called "spousal abuse") usually involves repetitive physical and psychological abuse, and a "cycle of violence".

Specific crimes charged vary based on 1) severity of the victim's injuries, 2) whether a minor was present, and 3) whether a protective or restraining order was violated.

Domestic Violence
Q : Do protective orders actually protect the victim of domestic violence?
A : In many cases, yes. Studies have shown that issuing a protective order or arresting a person who commits an act of domestic violence does reduce future incidents of domestic violence.

When perpetrators of domestic violence see that the police and court system will treat domestic violence seriously, many persons who commit domestic violence may be deterred from future violence.

But orders of protection are not guarantees of protection or safety.

For some individuals with intense anger or rage, no court order will stop their violence, and a court order might even add to the rage. Newspapers periodically carry stories of women murdered by their husband or boyfriend despite numerous arrests and orders of protection.

The legal system cannot offer perfect protection, although it can reduce violence. Domestic Violence

Q : Where does one turn for help in cases of domestic violence?
A : In a crisis situation, a call to the police is a good place to start. Many people complain that police do not take accusations of domestic violence seriously.

That can be true in some circumstances, but on the whole, police are treating domestic violence situations more seriously, and police officers are receiving increased training on the subject.

The Genesee County Prosecutors office also may be able to offer some help. An increasing number of hospitals, crisis intervention programs, and social service agencies have programs to help victims of domestic violence. Agencies offering help in cases of domestic violence might be found in the Yellow Pages under "Domestic Violence Help," "Human Services Organizations," or "Crisis Intervention."

By Attorney Terry Ray Bankert 810 235-1970
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
Articles on Divorce and lawyers in Flint, Genesee County Michigan USA

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Monday, November 13, 2006

Mediation, Arbitration and Final Property Division

posted here By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA

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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:
-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

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA

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