UPDATES IN MICHIGAN FAMILY LAW

Separate property award | Effect of contribution

In Couvier v Laubernds, Docket No 272842, Michigan Court of Appeals, decided on February 5, 2008, the COA upheld almost all of a judgment entered in Chippewa County, Michigan. The husband appealed the trial court's award of significant property that he claimed as "separate property," including a farm he had owned prior to the marriage, but the COA affirmed. He also appealed the T/C's order that he pay Wife's attorney fees (about $20,000). The COA did correct one minor mistake (well, OK, not so minor:  $63,574.51) mistake in the balancing award made by the trial court to equally divide the marital property between husband and wife.

Can divorce be made more affordable?

Just as I hit "Enter" to post the last article dealing with the dangers consumers face when using Internet websites to do "cheapie divorces,"  incoming email offered a breath of fresh air.

Scott Bassett, a veteran lawyer who practices Michigan family appellate law, had this to say in a post to the Family Law Listserv about how the State of Michigan might better serve innumerable citizens who need and want a divorce and who cannot afford legal representation. He recommended an unusual and practical approach to legal services called "the unbundling of services." Scott Bassett said:

How sanctions can defuse scorched-earth litigation tactics

Yesterday on the Michigan Family Law Section's Listserv, Judge Hammond stated in response to a query about the award of sanctions for bad faith pleading / litigation:

"An old - but still solid - rule is "follow the money".  The pocket-book nerve is the second most sensitive nerve in the human being.  (The kid nerve comes first, in normal people.) Making a client (and even more so, an attorney) pay money for his or her sins is a very effective way of getting someone's attention."

Just prior to his death, Greg Justis sent me an opinion from a case before Judge Johnson in Emmet County.

When Will a Trial Court Order Your Spouse to Pay some or all of your Attorney Fees?

In Michigan, attorney fees in a divorce action are not recoverable as of right. But a statute, MCL 552.13, allows the trial court to order a party “to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency.” A court rule, MCR 3.206(C) allows for the award of attorney fees if (1) A party, at any time, requests that the court order the other party to pay all or part of the attorney fees and expenses related to the action, and (2) The party who requests attorney fees and expenses alleges (and proves) facts sufficient to show that the party is unable to bear the expense of the action, and that the other party is able to pay.

Unreasonable conduct that adds to the cost of a divorce by forcing a party to incur fees and costs because of the other party’s unreasonable conduct in the course of the litigation is also grounds for an award of attorney fees.

Examples of unreasonable conduct that has resulted in a trial court awarding fees and costs include the following: (1) The filing of numerous pretrial motions concerning discovery and related to preserving the property ultimately to be divided between the parties; (2) A refusal or failure to pay spousal support as required by the trial court; (3) Discovery abuse that causes the other party to seek court intervention in order to find out what the marital assets and debts really are; (4) The hiding of assets resulting in extra fees and costs in order to discover them.

To contact Jeanne Hannah with your questions or to view her Family Law website, click here.