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DIVORCE 66: Defendant not entitled to any portion of the house’s appreciated value.

In this case, the trial court conducted a trial and determined that plaintiff would have sole physical custody of the child, the parties would share joint legal custody of the child, and defendant was not entitled to any portion of the house’s appreciated value while the parties were married.

Defendant argues that he is entitled to a portion of the house’s appreciated value during the time that he was married to plaintiff.

Marital and Separate Assets

The trial court’s first consideration when dividing property in divorce proceedings is the determination of marital and separate assets. The parties agree that plaintiff bought this home before the marriage. Generally, each party takes away from the marriage that party’s own separate estate with no invasion by the other party.

Growth of Asset

When one significantly assists in the acquisition or growth of a spouse’s separate asset, the court may consider the contribution as having a distinct value deserving of compensation.

The record establishes that defendant attempted to make house repairs to the sunroom and the garage; he also completed the back splash in the kitchen as well as some electrical work. But testimony from plaintiff, plaintiff’s mother, and a contractor revealed that the work defendant performed was not adequate and either needed to be redone or removed.

Although defendant argues that his funds were comingled with plaintiff’s payment of the mortgage, defendant does not demonstrate that his actions significantly assisted in the growth of the home’s value. The testimony provides that defendant’s payments into the joint checking account did not continue and only contributed to less than half of the household expenses before considering the mortgage payments.

Trial Court

The trial court’s determination not to divide the appreciation of the home was equitable.

Providing Advice to Clients Facing Divorces

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REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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