Thursday, June 23, 2011

Michigan separate property laws at risk

Currently, there is proposed legislation in Lansing that attempts to completely change the separate property laws in Michigan that we know today. They are House Bills 4672 and 4673 and were taken up by the House Judiciary Committee beginning this morning.

The Michigan Probate Court Judges, the SBM Family Law Section and the Oakland County Family Law Committee all unanimously oppose this bill. It has been introduced so suddenly and is being pushed with such vigor that many have not yet had the opportunity to weigh in. This bill is sponsored by Representative John Walsh (R) from Livonia and is being backed by Richard McClellan Esq. as well as Jay Cunningham, Esq., who has been hired as an expert. It is believed that this is being privately pushed by a well-connected individual who may have a personal reason for wanting to change the current laws in Michigan when it comes to property division.

While it's sponsor claims the law simply codifies existing law (he does admit it is a policy shift but can't articulate why it is needed), the fact is that the proposals obliterate the separate property law as we know it today. Highly appreciated family owned businesses (and other property) "shall be" awarded to the spouse who brought them to the marriage, disregarding the equitable ownership approach currently in existence. The non-owner spouse would be relegated to requesting some sort of "reimbursement"... limiting the non-owner to something similar to an employee at best and a locked out spouse begging for reimbursement for "expenses" at worst. This flies in the face of our partnership theory--the bedrock of the institution of marriage. This is one example of the problems with this legislation. Our "invasion" statute is eliminated as a part of this law, thereby eliminating the discretion of a court to do equity where need or contribution exists. This proposed statute obliterates the well reasoned and precedential Hanaway v Hanaway case, now the settled law of the State of Michigan. This proposed change sets us back decades relative to seeking fundamental fairness in the outcome of divorce actions, especially in long term marriages. The proposed law is sweeping and extreme.

This issue was also highlighted in today's Detroit Free Press in an article by Brian Dickerson. Click here for the full article.

Carol F. Breitmeyer of our firm has been one of the most vocal critics of these proposed bills since they were discovered. She has been in Lansing for the last few days, with other members of the SBM Family Law Section, doing everything within her power to see that these radical bills do not become the law in Michigan.

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