235-1970 PATERNITY WHERE TO FILE CASE, WHEN TO FILE, BEFORE BABY BORN? Flint Paternity Lawyer Terry Bankert

June 18, 2012

PATERNITY OVERVIEW 06/17/12 [ Source-Michigan Judges BenchBook]

A. Governing Authority
§10.1 The governing authority for paternity actions is the Paternity Act, MCL 722.711 et seq., and MCR 3.217, Actions Under the Paternity Act.

Presented here by Flint Divorce, Paternity, Child Custody, and Child Support Flint Attorney Terry Bankert 810-235-1970, http://www.atorneybankert.com

§10.3 To establish standing in a paternity action, the plaintiff must allege that the child was born out of wedlock. Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991). A child is born out of wedlock if the mother was unmarried for the entire time from conception to birth or if a court has previously determined that the child was not the issue of the marriage. MCL 722.711(a); Spielmaker v Lee, 205 Mich App 51, 517 NW2d 558 (1994).

Once the pleading requirements are met in a paternity action, the court has subject matter jurisdiction to determine whether the child was born out of wedlock. Department of Soc Servs v Carter, 201 Mich App 643, 506 NW2d 603 (1993); see also McHone v Sosnowski, 239 Mich App 674, 609 NW2d 844 (2000) (following Girard). Denying a putative father standing to challenge paternity constitutes a denial of due process only if the putative father has an established relationship with the child. Sinicropi; Family Independence Agency v Heier (In re CAW), No 235731, 2003 Mich App LEXIS 2650 (Oct 23, 2003), vacating and replacing Family Independence Agency v Heier (In re CAW) (On Remand), 259 Mich App 181, 673 NW2d 470 (2003) (due to clerical error).

§10.8 The family division of the circuit court has jurisdiction over paternity actions. MCL 600.1021(1)(h), 722.714(1).
Venue is in the county where the mother or the child resides. If the mother and the child reside outside the state, venue is in the county where the putative father resides or is found. That the child was conceived or born outside of Michigan does not bar a complaint from being entered against the putative father. MCL 722.714(1).
Jurisdiction over a putative father who is out of state can be established under Michigan’s long-arm statute. See MCL 600.705. Paternity may also be established under the UIFSA, which has its own long-arm provisions. See §§10.55–10.47.

Statute of Limitations
§10.9 A paternity action may be instituted while the child’s mother is pregnant or at any time before the child reaches age 18. MCL 722.714(3). However, unless the defendant parent consents, there can be no trial before the child’s birth. MCL 722.715(2).

722.714 Paternity proceeding; parties; venue; action not required; commencement of action; statute of limitations; initiating and conducting proceedings; utilization of child support formula; verification of complaint; charge; summons; default judgment; genetic paternity testing; next friend or guardian ad litem; rights of indigent defendant; order of filiation.
Sec. 4.
(1) An action under this act shall be brought in the circuit court by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the family independence agency as provided in this act. The Michigan court rules for civil actions apply to all proceedings under this act. A complaint shall be filed in the county where the mother or child resides. If both the mother and child reside outside of this state, then the complaint shall be filed in the county where the putative father resides or is found. The fact that the child was conceived or born outside of this state is not a bar to entering a complaint against the putative father.
(2) An action to determine paternity shall not be brought under this act if the child’s father acknowledges paternity under the acknowledgment of parentage act, or if the child’s paternity is established under the law of another state.

(3) An action under this act may be commenced during the pregnancy of the child’s mother or at any time before the child reaches 18 years of age. For a child who became 18 years of age after August 15, 1984 and before June 2, 1986, an action under this act may be commenced before January 1, 1995. This subsection applies regardless of whether the cause of action accrued before June 1, 1986 and regardless of whether the cause of action was barred under this subsection before June 1, 1986. A summons issued under this section shall be in the form the court determines and shall be served in the same manner as is provided by court rules for the service of process in civil actions.

(4) If the county family independence agency of the county in which the mother or alleged father resides first determines that she or he has physical possession of the child and is eligible for public assistance or without means to employ an attorney; if the family independence agency is the complainant; or if the mother, alleged father, or child is receiving services under part D of title IV of the social security act, 42 U.S.C. 651 to 667, then the prosecuting attorney or an attorney employed by the county under section 1 of 1941 PA 15, MCL 49.71, shall initiate and conduct proceedings under this act. The prosecuting attorney shall utilize the child support formula developed under section 19 of the friend of the court act, 1982 PA 294, MCL 552.519, as a guideline in petitioning for child support. A complaint filed under this act shall be verified by oath or affirmation.
(5) The party filing the complaint shall name the person believed to be the father of the child and state in the complaint the time and place, as near as possible, when and where the mother became pregnant. If the family independence agency is the plaintiff, the required facts shall be stated upon information and belief.
(6) Upon the filing of a complaint, the court shall issue a summons against the named defendant. If the defendant does not file and serve a responsive pleading as required by the court rules, the court may enter a default judgment. Neither party is required to testify before entry of a default judgment in a proceeding under this act.
(7) If, after service of process, the parties fail to consent to an order naming the man as the child’s father as provided in this act within the time permitted for a responsive pleading, then the family independence agency or its designee may file and serve both the mother and the alleged father with a notice requiring that the mother, alleged father, and child appear for genetic paternity testing as provided in section 6.
(8) If the mother, alleged father, or child does not appear for genetic paternity testing as provided in subsection (7), then the family independence agency or its designee may apply to the court for an order compelling genetic paternity tests as provided in section 6 or may seek other relief as permitted by statute or court rule.
(9) It is unnecessary in any proceedings under this act commenced by or against a minor to have a next friend or guardian ad litem appointed for the minor unless required by the circuit judge. A minor may prosecute or defend any proceedings in the same manner and with the same effect as if he or she were of legal age.
(10) If a child born out of wedlock is being supported in whole or in part by public assistance, including medical assistance, the family independence agency may file a complaint on behalf of the child in the circuit court in the county in which the child resides. The mother or alleged father of the child shall be made a party plaintiff and notified of the hearing on the complaint by summons. The complaint made by the family independence agency shall be verified by the director of the family independence agency, or his or her designated representative, or by the director of the county family independence agency of the county in which an action is brought, or the county director’s designated representative.
(11) 1986 PA 107, which added this subsection, does not affect the rights of an indigent defendant in proceedings under this act as established by decisions of the courts of this state before June 1, 1986.
(12) If a determination of paternity is made under this act, the court may enter an order of filiation as provided in section 7. Regardless of who commences an action under this act, an order of filiation entered under this act has the same effect, is subject to the same provisions, and is enforced in the same manner as an order of filiation entered on complaint of the mother or father.
——

722.715 Mother and alleged father competent to testify; cross-examination; exclusion of public; continuance until birth of child.
Sec. 5.
(1) Both the mother and the alleged father of the child shall be competent to testify, and if either gives evidence he or she shall be subject to cross-examination. The court may exclude the general public from the room where proceedings are held, pursuant to this act, admitting only persons directly interested in the case, including the officers of the court, officers or public welfare agents presenting the case, and witnesses.
(2) If the child is not born at the time set for trial, the case, unless the defendant mother or defendant father consents to trial, shall be continued until the child is born.

Hope this helps, Terry Bankert 810-235-1970


FLINT DIVORCE AND BANKRUPTCY, TERRY BANKERT 235-1970

October 9, 2011

NEED ATTORNEY IN FLINT FOR BANKRUPTCY? CALL BANKRUPTCY LAWYER TERRY BANKERT 810- 235-1970

DID YOU KNOW-The Bankruptcy Code is embodied in Title 11 of the United States Code and, within Title 11, four different types of bankruptcy are available to individuals—namely Chapters 7, 11, 12, and 13. There are two ways in which a bankruptcy may be commenced—voluntarily and involuntarily—and both forms of commencement invoke the automatic stay. See 11 USC 362(a) discussed in §17.11. In a voluntary bankruptcy, the debtor files the bankruptcy petition. In an involuntary bankruptcy, the statutory number of creditors file the bankruptcy against the debtor under 11 USC 303. An involuntary case against an individual may only be commenced under Chapters 7 or 11 of the Bankruptcy Code. Only a debtor may voluntarily file a case under Chapters 12 and 13.

A brief overview of the attributes and eligibility requirements of these four chapters is as follows:

Chapter 7—Liquidation: In this bankruptcy proceeding, the debtor turns over all nonexempt property to the Chapter 7 trustee, whose job it is to sell or liquidate the property and distribute the proceeds to creditors pro rata, usually in a one-time payment once all of the assets have been administered. The Chapter 7 trustee will also investigate the debtor’s financial affairs to determine the location of any nonexempt property (including causes of action) that can be turned into cash for distribution to creditors. The debtor will be released (i.e., discharged) from the unpaid portion of most types of debts. However, DSOs (defined in 11 USC 101(14A)) and debts owing to a spouse, former spouse, or child of the debtor and arising out of a divorce or separation are nondischargeable. See 11 USC 523(a)(5), (15). See §§17.16 and
17.17. The Chapter 7 trustee is always appointed by the U.S. trustee and is usually a member of a panel of trustees.

Chapter 11—Reorganization: The purpose of this bankruptcy proceeding is to allow the debtor a breathing spell from creditors and enable the debtor to reorganize his or her financial affairs. The debtor retains control of all of his or her property unless a Chapter 11 trustee is appointed for cause. Chapter 11 is the most expensive and complicated type of bankruptcy and can last for several years. The debtor proposes a plan of reorganization that is subject to the vote of the creditors. Individuals with debts exceeding the dollar limits in 11 USC 109(e) are eligible to file Chapter 11.

Chapter 12—Family farmer bankruptcy: This type of bankruptcy may be filed only voluntarily and only by a family farmer with regular annual income. This proceeding is similar to a Chapter 13, described below, but the debt limits in Chapter 13 do not apply to Chapter 12.

Chapter 13—Adjustment of debts: This type of bankruptcy may be filed only voluntarily and only by individuals with regular income (filing with or without a spouse) and with debts that fall within the statutory limits for secured debt and unsecured debt. Those debt limits are adjusted at three-year intervals pursuant to 11 USC 104. As of July 2010, the most recent adjustment was effective April 1, 2010, and it provides that only an individual with regular income and unsecured debts of less than $336,900 and secured debts of less than $1,010,650 is eligible to be a debtor under Chapter 13. Soon after a Chapter 13 case starts, the debtor must propose a plan but, unlike a Chapter 11, the creditors of a Chapter 13 debtor do not get the opportunity to vote on it. Instead, the bankruptcy court and the Chapter 13 trustee review the plan and must approve it as fitting within the strict requirements for a plan under Chapter 13. See 11 USC 1325. In the Chapter 13 plan, the debtor commits to pay the Chapter 13 trustee an appropriate part of his or her income or other property for a period of time (generally three to five years). A Chapter 13 trustee is appointed in each Chapter 13 case to distribute the debtor’s payments to the creditors in accordance with a confirmed Chapter 13 plan. Once the debtor has completed all payments due under a confirmed Chapter 13 plan, the debtor receives a broader discharge than individuals receive in a Chapter 7 liquidation. Priority debts must be paid in full, see 11 USC 1322(a)(2), and, pursuant to 11 USC 507(a)(1), a debt for a DSO is a priority unsecured claim. See §§17.16 and 17.17.

For help-Michigan, Flint Genesee, Lawyer / Attorney , Bankruptcy, 810-235-1970, Divorce and Family Law
http://terrybankert.blogspot.com

Michigan Family Law ch 17 (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=17 (last updated 09/30/2011


What do family law professors think is important?

June 21, 2011

Sunday, June 19, 2011

 LAW SCHOOL FAMILY LAW PROFESSORS , WHAT THEY THINK IS IMPORTANT!

Flint Family Law,Divorce Attorney Thoughts on the 4th Annual Midwest Family Law Consortium: Family Law in the 21st Century hosted by the Michigan State College of Law June 17-17 2011.

 Reflections of Flint Divorce Attorney Terry Bankert 810-235-1970. http://www.dumpmyspouse.com/

 or http://www.attorneybankert.com/    Yes I am SEO here, you got me. Oh, I forgot, http://www.nojokebeingbroke.com/

 FAMILY LAW IN THE 21ST CENTURY, divorce, child support, parenting time, custody and stuff.

 I recieved a card promoting this event but placed it on the corner of my desk that I keep for wishful thinking.

 I had a scheduled hearing in conflict with the June 16-17 date of the event. Located in Lansing on the campus of Michigan State University College of Law I was interested.

 Mid week my conflict left and I reached out to go hastely sending in my lonely $100 bucks.

 The program talked of a reception and dinner the night before, we made inquiry and were given the location and time. This I attended.

 The promo stated “ The first decade of the 21st century has been an exciting time for Family Law Scholars, Teachers and Practitioners.” I believe I was the only current practitioner.( lab rat).

 The Professors I am sure had extensive practice expierence before assending the Ivry Tower.

 Justice Marilyn Kelly was the keynote speaker at lunch on Friday the program day. How could I not go, the holy grail of Michigan Family Law intelligence was speaking. I am moitivated to protect the fatherhood rights of putative fathers. Her presentation was motivating.

 But back to the Thursday reception. We dined at Michells Fish Market in a location called East Gate(?). I thought I was in a new commercial development in Atlanta Ga. It sure did not look like Flint to me.( Yes  it was Lansing).

 What I was at was the preconference reception for the presenters, I think I basically crashed it. I am told I did not. But I think the are just being polite.

 The program facilitators were very gracious and made me feel at home and welcome. I had the time of my life. I was able to engage in a level of conversation that is usually fleeting for me. In the end though they were the scientists and I was the lab rat.

 Scholarly law professors toying with a court house practice family law lawyer from violence & depression ridden Flint MI. I thank everyone for the great time.

 The last time I was in the MSU Law Library was when I debated Profesor Bitinski on the use of force and child protective proceeding. I took the side of parents being able to beat disobedience out of the little miscreants.

 It was sponsored by the Federalist Society. I was in unfriendly territory but had my usual good time.Did I tell you I am from Flint MI the most violent city in America and was a 5th Army Drill Sergeant! Bring it on. After all life is to short not to.

 The dinner was great I ordered clam chowder, steak and key lime pie. I prattled on so much, I am a talkative lab rat, that I finished only ½ of the best steak I will have this year. Just where were my priorities. Interesting discussion on the rights of putative fathers.

Combining this with the presentation of Justice Kelly my awarness of this travisty of justice in Family Law was enhanced.

 The Consortium, a room full of law school professors, went well. The presentations were broken up into panels.

 WELCOME

We were welcomed by Melanie B. Jacobs Michigan State University College of Law, Cynthia Lee Starnes Michigan State College of Law, and Dean Joan H. Howarth Michigan State College of Law.

PANEL NUMBER ONE “ ISSUES IN REPRODUCTION.”

 (1)First up was Jamie R Abrahams Hofstra University Law School of Law Presenting “ Distorted and Diminished Tort remedies for birthing mothers.”

(2) Mary Patricia Byrn William Michell College of Law “ Why Banning anonymous Gamete (sperm & egg) donation is a bad idea and probably unconstitutional”

(3) Deborah L. Forman Whittier Law School “ Embryo Disposition and Divorce: Why Clinic consent forms are not the answer.”

(4) Maya Manian University of San Francisco School of Law.” Parents, Minors, and Minor Parents: A Family Law Perspective on Adolescents Reproductive Rights.” The above panel was moderated by Helene S. Shapo Northwestern University School of Law.

PANEL NUMBER TWO “ ISSUES IN INTERNATIONAL AND COMPARATIVE LAW.”

(5) Ann Laquer Estin University of Iowa College of Law “ International Issues in Child Welfare Cases”.

(6) Richard F. Storrow “ The City University of New York School of Law.” The Phantom Children of the Republic: Surrogacy, Globialization and the New Illegitimacy.

(7) Shani M. King Universaity of Florida Levin College of Law “ The right to counsel for unaccompanied minors” This panel was moderated by Leslie J.Harris University of Oregon School of Law.

(8)KEYNOTE ADDRESS DURING LUNCH BY JUSTICE MARILYN KELLY

PANEL NUMBER THREE “ ISSUES IN PATERNITY AND PARENTHOOD”

(9) Cynthia Godsoe Brooklyn Law School “ Parsing Parenthood.”

(10) Jeffrey A. Parnes The John Marshall Law School “ Paternity After Lehr and Michael H.”

(11) Dara E Purvis, University of Illinois College of Law “ Same-Sex intended Parents and the Problem of perspective.” This panel moderated by Maya Manian, University of San Francisco School of Law.”

PANEL NUMBER FOUR “ ISSUES IN MARRAIGE AND DIVORCE”

(12) Jessica Knouse University of Toledo College of Law “ Civil marraige: threat to democracy”

(13) Mark Strasser Capital University Law School “ Child Welfare and promotion of marraige.” This Panel moderated by Nina W. Tarr, University of Illinois College of Law”

PANEL NUMBER FIVE” FAMILY LAW IN PERSPECTIVE”

(14) June Carbone University of Missouri- Kansas City School of Law “ The emergence of Family as a marker of class.”

(15) Barbara Glesner Fines University of Misouri Kansas City School of Law “ How Family Law practice has changed in the past 50 years.”

(16) Leslie J Harris University of Oregon School of Law “ Implications of the fragile families studies for the Law of Family Formation and child support.

(17) Charles Reid University of St. Thomas ( Minnesota) “ Lucifers Children; A story of Free Love, Religion, Politics and Law. This panel was moderatede by Mary Jean Dolan The John Marshall Law School.

Now you will note there were 17 presenters and five moderators, plus 3 organizers from Michigan State plus Justice Kelly and one practicioner (me) additionally counting the one student who came in mid afternoon this number is 28. The exact number in attendance. As a practitioner I paid $100, a bargain by any measure. ( possibly the only one who gladly paid anything). No papers were distributed.I will not post my full notes because I was not as attentive during all presentations.

Mabey next year I will offer a paper . Titled? “ HEY…Here is what you should really teach us about Family Law in Law School, just what were you thinking!”

JUST FOR THE RECORD I AM AVAILABLE TO GUEST LECTURE. I work for steak. I can drive buying my own gas and return to my own housing if interested the following schools may contact me for this protein compensated service; Michigan State College of Law , Thomas Cooley Law School( Alma Mater) , University of Michigan Law School.

Jealous your school is not on my list? Give me a call………. Just saying. 810-235-1970.

TERRY BANKERT 810-235-1970

Link to this site. http://goodmorningflint.blogspot.com/2011/06/law-school-family-law-professors-what.html


BANKRUPTCY MAY BE THE HELP YOU NEED

March 28, 2011

BANKRUPTCY is an option to solve your economic problems. Contact Flint Bankruptcy Attorney Terry Banker 1-810-235-1970. Or email through his webpage http://www.attorneybankert.com. We will explain the difference between Chapter 7 and Chapter 13. You will find out how debts are cancelled (discharged).Contact Flint Bankruptcy Attorney Terry Bankert 810-235-1970 or through his web page at http://www.attorneybankert.com


ADAM & EVE THEN FLINT DIVORCE

March 5, 2011

Adam and Eve were followed by families where matrimony turned to acrimoney For an Adam Divorce can be a difficult process, the same is do for Eve. If you have made that tough decision contact Flint Divorce Lawyer Terry Banket. Even in the best of circumstances, tempers may run high, and every decision can seem to be more stressful than the last. It is only human to find yourself reacting emotionally at certain stages of a divorce, but it is important to remember that your actions throughout the process can affect your familial, emotional, and financial situation for years to come. Flint Divorce Lawyer says Following are some “do’s and don’ts” for the divorce process.

THE DO’s

DO be reasonable and cooperate as much as possible with your soon-to-be-ex. Reasonable compromise yields quicker and easier results in divorce cases.

DO support your children through this process. It’s even tougher on them than on you. Don’t make them pick sides.

DO let your spouse know when and where you will spend time with your kids while you work out permanent custody arrangements.

DO fully disclose all your assets and property. A court can throw out a divorce decree based on financial deception, putting you back in court years after you thought everything was final.

DO ask your attorney if anything doesn’t make sense. Your attorney works for you, and should help you understand every part of the divorce process.

THE DON’Ts

DON’T make big plans to take a job in another state or move out of the country until your divorce is final. Your new life could interfere with getting your divorce finalized.

DON’T violate any temporary custody or visitation arrangements. It could make it tougher for you to get the custody or visitation rights you prefer.

DON’T “give away” property to friends or relatives and arrange to get it back later. Hiding property can mean your spouse can take you back to court to settle those assets.

DON’T go it alone. Divorce is complicated, and an attorney can make sure that your interests are protected.

DON’T make wedding plans with your new significant other until your divorce is finalized.

A FEW OF THE ISSUES.

180 day residency in Michigan required of one of the parties.

Friend of the Court becomes involved if there are children or spousal support is requested.

Allegations In a divorce proceeding the only allegation of the grounds for divorce the statute permits is the no-fault grounds, i.e. ” there ha been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likely hood that the marriage can be preserved.

Child Custody proceedings are often part of a divorce action but they may be initiated independent of a divorce proceedings. A married parent may independently commence an action for child support as long as there is no divorce or separate maintenance proceedings.

OTHER PARTIES Generally it is beyond the jurisdiction of the divorce court to adjudicate third- party rights regarding property. An example is a car loan with both names on it. One may be ordered to pay it in the divorce but both can be sued by the lien holder.

Filing and Serving the Divorce/Dissolution Petition

The divorce complaint is a legal document that is filed in court by a spouse who seeks a divorce. This complaint informs the court of the filing spouse’s (called the “petitioner”) desire to end the marriage, and its filing with the court signifies the initiation of the divorce process. Once the divorce/dissolution petition has been “served” on the petitioner’s spouse, it also notifies him or her that the divorce process has begun.

Contents of the Divorce/Dissolution Petition: Information and Requests

A complaint typically contains the following information:

Identification of the spouses by name and address;

Date and place of marriage;

Identification of children of the marriage;

Acknowledgment that the petitioner and/or his or her spouse have lived in the state or county for a certain amount of time prior to filing the petition;

Grounds for divorce;

Declaration or request as to how the petitioner would like to settle finances, property division, child custody, visitation, and other issues related to divorce.

A divorce complaint should be as neutral a document as possible. Inflammatory language can

open up wounds that will never heal.

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

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/
Posted by Terry Ray Bankert at 7:37 PM 0 comments Labels: alimony, Child Neglect, child support, Flint Custody, flint divorce, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/


TORT SETTLEMENT SEPARATE MARITAL PROPERTY AND NOT INVADED

November 16, 2010

Is Your tort settlement part of the marital estate in divorce?

DID YOU KNOW- “Proceeds from a personal injury lawsuit meant to compensate for pain and suffering are not joint marital property.” Pickering v Pickering, 268 Mich App 1, 10; 706 NW2d 835 (2005). Nevertheless, those proceeds can be distributed as part of the property division under MCL 552.23 or MCL 552.401. Id. Also, a personal injury settlement can be treated as marital property where the original action included a loss of consortium claim and the settlement check was made payable to both parties and was treated by the parties as marital property. Id. at 11.
Flint Divorce lawyer Terry R. Bankert presents several marital Property Issues. Questions call 810-235-1970 or go to http://attorneybankert.com
ISSUES :

1.Appeal from a judgment of divorce;

2.Whether the trial court should have determined the proceeds from a tort lawsuit settlement were marital property and included them in the marital estate; Berger v. Berger; McDougal v. McDougal; McNamara v. Horner; Reed v. Reed; MCL 552.19; MCL 552.23; MCL 552.401; Pickering v. Pickering;

3.Whether the trial court correctly found that defendant did not use any of the Gocha Enterprises loan proceeds for marital interests; Woodington v. Shokoohi (Unpub.); 4.Whether the property division was inequitable

SEE
Court: Michigan Court of Appeals (Unpublished),Case Name: Gocha v. Gocha
e-Journal Number: 47237,No. 292442,Genesee Circuit Court Family Division
LC , Theile, No. 07-278858-DO,Appellate Judge(s): Per Curiam – Borrello, Cavanagh, and Owens

LOWER COURT RULES TORT SETTLEMENT NOT PART OF MARITAL ESTATE

The court held, inter alia, that the trial court properly refused to determine whether the proceeds from a tort lawsuit settlement based on a botched surgery claim by the plaintiff-wife were marital property or separate property and did not include the lawsuit proceeds in the marital estate.

FORTY YEAR MARRAIGE

The parties were married for nearly 40 years. They had three children, all of whom were adults when plaintiff filed for divorce. At that time, she was employed as a nurse and the defendant-husband was employed as a mechanic/technician, and they earned about the same amount per year.

COURTS JOB IS TO DETERMINE A FAIR DISTRIBUTION OF THE PROPERTY

Absent a binding agreement, the goal in distributing marital assets in a divorce
proceeding is to reach an equitable distribution of property in light of all the circumstances. Berger, 277 Mich App at 716-717. To reach an equitable division, the trial court should consider the duration of the marriage, the contribution of each party to the marital estate, each party’s station in life, each party’s earning ability, each party’s age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal v McDougal, 451 Mich 80, 89; 545 NW2d 357 (1996).

SEPARATE ASSETS MAY NOT BE INVADED GENERALLY

The court noted that generally, marital assets are subject to division between the parties, but the parties’ separate assets may not be invaded.

Generally, marital assets are subject to division between the parties but the parties’
separate assets may not be invaded. McNamara v Horner, 249 Mich App 177, 183; 642 NW2d 385 (2002). Marital assets are those assets a spouse earns during the course of a marriage. MCL 552.19; Reed v Reed, 265 Mich App 131, 152; 693 NW2d 825 (2005). However, a spouse’s separate estate can be opened for redistribution when one of two statutorily created exceptions is met. Separate property may be invaded if, upon entry of a divorce judgment, the property awarded to one party is not sufficient for the suitable support of one party or the party’s children. MCL 552.23. In the alternative, separate property may be invaded if one “party contributed to the acquisition, improvement or accumulation of the property.” MCL 552.401.

PERSONAL INJURY [PI] AWARDS FOR PAIN AND SUFFERING ARE NOT MARITAL PROPERTY
“Proceeds from a personal injury lawsuit meant to compensate for pain and suffering are not joint marital property,” based on Pickering.

WHEN THERE IS NEED THEY CAN BE ALLOCATED BETWEEN THE PARTIES
Nevertheless, those proceeds can be distributed as part of the marital property division under MCL 552.23 or MCL 552.401.

LOSS OF CONSORTIUM MAKES IT JOINT PROPERTY
Also, a personal injury settlement can be treated as marital property where the original action included a loss of consortium claim, the settlement check is made payable to both parties, and was treated by the parties as marital property.

THIS CASE WAS PAIN AND SUFFERING ONLY
However, in this case the record indicated that the settlement proceeds were intended to compensate the plaintiff for pain and suffering related to the surgery.

THE PI AWARD WAS SEPARATE PROPERTY
Thus, they were properly treated as her separate property.

SHE SUFFERED
Plaintiff suffered horrible injuries as the result of a failed tummy tuck and hernia repair procedure. She was on a ventilator for four days and in the ICU for six days. She was in the hospital for more than 3 weeks and was out of work for 14 weeks. She suffered permanent scarring of her abdomen and thighs.

NO EVIDENCE THAT HUSBAND MADE A LOSS OF CONSORTIUM CLAIM
There was no evidence in the record that defendant made a loss of consortium claim in her original case. While both the wife and husband signed the settlement release, there was no evidence that the settlement check was made out to both. The only evidence indicated the wife was compensated for her pain and suffering as a result of medical malpractice.

LOWER COURT CALLED PI PROCEEDS SEPARATE
Thus, the trial court did not clearly err in finding the settlement proceeds amounted to separate property.

Generally, as noted above, marital assets are subject to division between the parties but
the parties’ separate assets may not be invaded. McNamara, 249 Mich App at 183. Marital assets are those assets that came to a spouse “by reason of the marriage . . . .” MCL 552.19; Woodington v Shokoohi, ___ Mich App ___; ___ NW2d ___ (Docket No. 288923, issued May 4, 2010), slip op, p 3. “The goal of a court when apportioning a marital estate is to equitably divide it in light of all of the circumstances.” Reed, 265 Mich App at 152. As noted above, to reach an equitable division, the trial court should consider the duration of the marriage, the contribution of each party to the marital estate, each party’s station in life, each party’s earning ability, each party’s age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal, 451 Mich at 89.

LOWER COURT REFUSED ALLOCATED THIS SEPARATE PROPERTY
Further, the trial court did not err in refusing to invade plaintiff’s separate property under either MCL 552.23 or MCL 552.401. The settlement proceeds were not required to insure the support of the defendant, he did not request alimony, and he recognized he did not need financial support from plaintiff. Also, defendant did not contribute to greatly relieving plaintiff’s pain and suffering after her surgery. He testified he was not even aware she was having the surgery until the day before. He did help her recover by assisting with bathing and changing her dressings, but he lost at most two days of work. The trial court did not clearly err in refusing to invade plaintiff’s settlement proceeds and distribute them as part of the marital property. The court also held that the other issues raised on appeal by the defendant had no merit and affirmed.

Presented here 11/15/10
By Terry R. Bankert
http://attorneybankert.com


Mel Gibson, Charles Sheehan, Domestic Violence , Hollywood and a Flint Divorce attorney

July 13, 2010

Flint Divorce Lawyer talks about The Mel Gibson domestic violence case as a classic example of what happens in private from publicly looking responsible people who engage in domestic violence.

BITTER CUSTODY FIGHT, IS THIS AN EXCUSE?

Gibson, 54, and Grigorieva, 40, are now locked in a bitter custody dispute and the superstar facing domestic abuse allegations and the fallout from leaked audiotapes in which Gibson berates and threatens Grigorieva during profane rants. [1]

DEATH THREAT

On a new recording released today, 07/12/2010, Mel Gibson allegedly threatens to “bury” the mother of his child. Although just one listen and it’s clear the actor’s digging his own grave.[3]

TAPES RELEASED
A source close to the case claims the tapes were recorded in February on the heels of a heated exchange in January. [1]

WAS MOM SHAKING THE BABY?

Both sides agree they argued in January but differ on what exactly transpired. Grigorieva claims Gibson punched her in the face “more than once,” breaking a tooth and knocking out a veneer. Another Gibson source says the actor only “tried to stop [Oskana] from shaking their baby like a ragdoll” during the altercation. [1]

ANOTHER HOLLYWOOD IDOL IN DOMESTIC VIOLENCE, MEL IS NOT ALONE.

Charlie Sheen’s

IT’S A PATTERN OF BEHAVIOR

Domestic violence ,said Flint Divorce Attorney Terry Bankert ,is a pattern of behavior in
which one intimate partner uses physical violence, coercion,
threats, intimidation, isolation or emotional, sexual
or economic abuse to control the other partner in the
relationship.

PERSONAL CHOICE, HABIT?

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 victims. [5]

IS PPO AN OPTION?

In Michigan, a victim of domestic violence may obtain a personal protection order (PPO) to enjoin abusive behavior. PPOs may enjoin specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. In addition, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. They may also prohibit the removal of minor children from the legal custodian, purchasing or possessing a firearm, and any other act that interferes with the petitioner’s personal liberty or that causes a reasonable apprehension of violence. [5]

 

DOMESTIC VIOLENCE IS MORE THAN POOR COUPLES HITTING EACH OTHER

A divorce Attorney points out Domestic violence does not necessarily
involve physical violence and it equally affects all
aspects of our society, rich or poor, regardless of race,
ethnicity, religion or national origin.

DOMESTIC VIOLENCE IS WIDE SPREAD
Domestic violence is an epidemic. One out of nearly
every three women will be the victim of domestic violence
in her lifetime. Between three and ten million
children are exposed to domestic violence every year
and that exposure has a negative impact on their development.

HOLLYWOOD KEEPS DOMESTIC VIOLENCE QUIET

when it comes to Mel Gibson, who seems to have offended everyone possible with his racist, sexist, anti-Semitic, and outright terrorist rants in the tapes that have been “leaked” to the world over the past week, Hollywood seems to be keeping its usually highly-opinionated mouth closed.[2]

 

SPOUSES ARE AWARE OF HOW BAD THEIR ACTIONS ARE

The troubled state of his relationship with girlfriend Oksana Grigorieva was not lost on Mel Gibson. “He realized how unhealthy the relationship was and recognized that they were in a bad place and he was getting his buttons pushed,” a friend tells [1]

WHAT ARE EXAMPLES OF DOMESTIC VIOLENCE

Domestic violence is defined as a pattern of behavior used to establish power and control over another person through fear and intimidation, often including the threat or use of violence. National Coalition Against Domestic Violence, at http://www.ncadv.org. In addition to physical violence, abusers may use many forms of control against their partners, including

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 (harassment during parenting time, threatening to kidnap the children);

sexual abuse; and

stalking.[5]

 

 

DOMESTIC VIOLENCE CAN MOVE FROM SPOUSE TO CHILDREN
Moreover, studies indicate that forty to sixty
percent of men who abuse women also abuse children

Posted here by

Terry Bankert

 

[1]

 

[2]

 

[3]

 

[4]

 

[5]

Michigan Family Law ch 18 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=18

(last updated 07/02/2010).

http://www.examiner.com/x-36751-Canada-Celebrity-Headlines-Examiner~y2010m7d12-Charlie-Sheen-hearing-delayed-until-August–filming-jeopardizedhttp://ca.eonline.com/uberblog/b189914_death_threats_admission_of_violence.htmlhttp://www.foxnews.com/entertainment/2010/07/13/isnt-hollywood-outraged-mel-gibsons-racist-sexist-rants/http://www.people.com/people/article/0,,20401383,00.htmlhttp://attorneybankert.com hearing for domestic violence, which was scheduled to begin today, has been delayed until August 2, 2010 — just as filming for the new season of Two And A Half Men is due to begin.[4]


Follow

Get every new post delivered to your Inbox.