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Thursday, June 30, 2011

Proposed Divorce Legislation Distinguishes Marital From Separate Property

Two new bills pending in the Michigan legislature attempt to address a long-perceived problem in Michigan family law: how to classify property [separate or marital] in a divorce proceeding.  This legislative proposal has judges and divorce attorneys up in arms.

The tie-barred bills, 4672 and 4673, introduced by Livonia Republican John Walsh, propose standards for the division of marital property, and comingled marital and separate property; create a presumption of non-division for separate property; and revises the procedures by which a family court could "invade" one spouse's separate property and award it to the other spouse.

In Michigan, a family court judge's power to apportion property in a divorce comes strictly from statutes; a confusing patchwork of four separate statutes, to be precise.  Because of this legislative patchwork, a significant body of common law has developed over the past 30-years addressing the classification and division of property.

Although every divorce case is decided on its own merit, the present state of divorce law allows the distinct possibility, if sufficent and compelling factors are proven, for the invasion of separate property.  The new legislation is largely viewed as making such an invasion more difficult, if not impossible.

Birmingham divorce attorney James P. Cunningham summarized the problem in a 2008 Michigan Bar Journal article, calling for legislation to "fill the gap" between the cases.  Cunningham was on the floor of the house in Lansing last week to testify as an expert about the need for this legislation and, presumably, to endorse the content of Walsh's bills.

So why such a fuss from the family court bench and bar?  First, they contend that Walsh is fast-tracking the legislation without input from their professional organizations.  Second, these groups also assert the proposed measures are grossly unfair to the non-propertied spouse.

When cornered by a reporter at the Capitol last week, a lobbist for the bills denied they were being fast-tracked but wryly noted that the family court bar was a veritable "graveyard" for good ideas.

Is this going to be a case of the rich getting richer?  The so-called "missionaries for the family" certainly think so and are determined to quash the measures; you should have seen the chatter about these bills appearing on the State Bar of Michigan's Family Law listserve...

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Blogger Liaise said...

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September 14, 2011 at 6:34 AM 
Blogger Shane said...

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October 7, 2011 at 5:35 AM 
Blogger Timothy P. Flynn said...

To Divorce Lawyers Virginia:
Although we published your comment, and welcome your time spent on our blog, why do we get the feeling that English is not your first language? Is it because you are a cleverbot, or a bot of any kind?

By the way, what is "Divorce Lawyers Virginia"? Anyway, try cleaning up the grammar and diction in your comments so that it is easier for your audience to read...

October 7, 2011 at 8:06 AM 
Anonymous Divorce Attorney said...

I found this post really informative. Thanks!

November 16, 2011 at 10:24 PM 
Blogger Criminal Lawyers in USA said...

A significant body of common law has developed over the past 30-years addressing the classification and division of property.
Divorce Lawyers

February 26, 2013 at 12:44 AM 

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