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Divorce 61: Terminal illness should not play a significant role in the distribution of the parties’ property.

In this case, the trial court awarded plaintiff a lesser portion of the marital estate because of her illness and anticipated short life expectancy. The trial court awarded plaintiff a life estate interest in the marital home, while granting defendant a remainderman interest. The court also granted plaintiff a life estate interest in the personal property located at the marital home. Defendant was awarded a remainderman interest in the marital-home personal property.

Division of Marital Assets

Once a trial court determines which assets are to be considered marital property, it may apportion the marital estate between the parties in a manner that is equitable in light of all the circumstances. Mathematical equality is not required, but any significant departure from congruence must be clearly explained. An unequal distribution of the marital estate is not inherently inequitable, so long as an adequate explanation for the distribution is provided.

Property Division Factors

The following factors are to be considered wherever they are relevant to the circumstances of the particular case: (1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity. There may even be additional factors that are relevant to a particular case.

Court Decision

The trial court’s division of the marital estate was essentially fashioned around providing plaintiff with just enough assets to keep her afloat and in good care until her soon-to-be-expected death, instead of simply dividing the marital estate as if plaintiff were like any other litigant. Her terminal illness should not have played such a significant role in the distribution of the parties’ property. Furthermore, awarding life estate interests in real and personal property because plaintiff had a terminal disease was, at a minimum, questionable. Awarding life estate and remainder interests to the parties in a divorce action is the antithesis of finality, leaving one ex-spouse waiting on the death of another to obtain fee ownership.

Experienced Advice to Clients Facing Divorces

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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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FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

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