Bar Briefs - c.ymcdn.com · The Trailblazer Macomb County Bar Association 2017-2018 Board of Directors President Karen Trickey Pappas (586) 465-8227 President Elect Dawn Prokopec

Official Publication of the Macomb County Bar AssociationVolume 36 Number 05

Bar BriefsBar BriefsNovember 2017

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IN THIS ISSUE:

4 From The President The Trailblazer By Karen Trickey Pappas Macomb County Bar Association President

6 Circuit Court Corner By 16th Circuit Court Administration

8 Some Evidence By Hon. Carl Marlinga, Macomb County Circuit Court

10 From the Juvenile Law Committee Calling All MCBA Members...Its the Juvenile Law Committee By Michael Gibbs, Esq, MCBF Juvenile Law Committee Chair

12 Rec’d with the President Spotlight

15 Lunch with Legends

18 From the Family Law Committee Prenuptial Agreements In the Wake of Allard III By Randall Chioini, Chioini Law Group PLLC and Family Law Committee Chair

22 Classifieds

Macomb County Bar Association Macomb County Circuit Court Building

40 North Main St., Suite 435

Mount Clemens, MI 48043-1037

Phone: (586) 468-2940

Fax: (586) 468-6926 • MacombBar.org

Editor’s Note: The opinions expressed in Bar Briefs do not reflect the official position of the MCBA, nor does this publication constitute an endorsement of the views expressed. Bar Briefs (ISSN0886-506X) is published monthly by the Macomb County Bar Association. Copyright 2017 by the Macomb County Bar

Association. Call (586) 468-2940 for advertising information. Periodical class postage paid at Royal Oak MI 48043. POSTMASTER: Send address correction to MCBA Bar Briefs, 40 North Main St., Suite 435, Mt. Clemens, MI 48043-1037.

Bar Briefs

Prenuptial Agreements In the Wake of Allard III

By Randall Chioini, Chioini Law Group PLLC and Family Law Committee Chair

FEATURE:

Full Calendar of Events available online at Macombbar.org. Register for events today!

The Trailblazer

Macomb County Bar Association2017-2018

Board of Directors

PresidentKaren Trickey Pappas(586) 465-8227

President ElectDawn Prokopec(313) 778-7778

SecretaryJon C. Biernat(586) 493-5377

TreasurerJoseph Golden(586) 226-2627 Immediate Past PresidentStephen Becker(586) 615-5617

Directors / Term Ending

Francesco Briguglio [2018](248) 593-9090Annemarie Lepore [2018](586) 783-3300Calvin Brown[2019] (586) 778-7778Dana Freers [2019] (586) 795-4150 Peter W. Peacock [2019] (586) 466-7605Donald Gillain [2017] (586) 481-4297 Lori Smith [2017] (586) 420-3707Young Lawyers Section Chair Laura Marji [2018](586) 991-1783 Women Lawyers Association of Michigan - Macomb Region Angela Medley [2018](586) 954-9500

MCBA StaffExecutive DirectorRick R. [email protected]

Associate Executive & Communications Director Dawn M. Fraylick [email protected]

ReceptionistPatty [email protected]

Editor in ChiefAaron J. Hall

Managing EditorDawn M. Prokopec

FROM THE PRESIDENT

by Karen Trickey Pappas,Macomb County Bar Association

President

MACOMBBAR.ORG 4 NOVEMBER 2017

I have always looked up to Lori Finazzo as an attorney, a leader, a woman and a mother. Lori received her undergraduate degree from Wayne State University in 1983 and received her Juris Doctorate from WSU in 1986, the same year she passed the Michigan Bar Exam. She began her practice with Freeman McKenzie in Mt. Clemens doing municipal prosecutions for the City of Mt. Clemens for 2 years. She then worked at O’Reilly Rancilio for 2 years practicing Municipal, Corporate and Civil Law. She then became a partner with Royce, Bowman and Finazzo practicing Family and Criminal Law. She has been

practicing exclusively Family Law in Macomb County for the last 26 years. She is married to Paul Drzyzga and has two children Grant, 25, and Kirsten, 22.

She was the Macomb County Bar Association President in 1998-1999 and has served as the Macomb County Bar Foundation President. She currently Co-Chairs the Macomb Bar Foundation’s Law Day Program with Judge Matthew Switalski. Lori was the second woman president of our Bar Association and she was elected

to that post after only 13 years of practicing law. She has been a trailblazer for woman in this county and I am proud to count her has a friend and mentor.

Which historical figure do you most identify with? Abraham Lincoln When and where are you most

happiest?

Whenever I’m in the presence of my husband and children. Who is your hero of fiction? Charles Dickens Who are your heroes in real life? People who are willing to shun the status quo and do

MCBA Past Presidents Çharles Trickey III and Lori Finazzo

something unexpected and entrepreneurial. What is your favorite place in the World? Harbor Springs, MI. We have a second home there and it is super-duper, super-duper, relaxing, and chill. We always say that we leave our Detroit problems behind once we get to Gaylord. What is your favorite MCBA Moment? When I took over the chairing of Law Day What is the best part about being a lawyer? Helping people out of terrible, difficult, sad situations. What is the most difficult part about being a lawyer? Not being able to always manage peoples unreasonable expectations. Who are your Mentors? George Freeman and Dan Stepek Who are your MCBA Mentors? Bob McKenzie and Dan Stepek Who do you see as an up and coming Young Lawyer?

Chase Robl

Chase Robl received his undergraduate degree from Northern University in 2007 and his Juris Doctorate from Cooley Law School in 2014. He has worked for Femminineo Attorneys, PLLC, for 3 years practicing Family, Criminal and Personal Injury Law. He enjoys golfing and traveling in his spare time. Chase received the Most Active Young Lawyer Award from the MCBA in April of 2017. What is something interesting that most people do not know about you? That’s hard as I am so bloody front and center! But, I would say that I love to work with my hands in a way that provides immediate return or instant gratification. I love to garden, polish brass and silver, bake, and split wood. What would you be if you weren’t a lawyer? Nothing else. From the time I was 5, being a lawyer was all I have ever wanted to do. Why do you love the MCBA? I starting participating in the Bar Association immediately. I was one of only a few woman lawyers in my first years and I was always treated fairly. The

members of the Bar were warm and welcoming. I also love the Bar Association because, in conjunction with the Macomb County Bar Foundation, we do so many great things. When we give as lawyers we get back two-fold. I see the work that the Foundation does as interchangeable from the Association. The great work that is done with the public, especially with the children: public education, sharing legal knowledge, the Kimberly Cahill Reading Program, Law Day. Both organizations give us as lawyers the much needed respect within our community.

Save the Dates

Hopefully, everyone was able to participate in the Macomb County Bar Foundations Fall Harvest Fundraiser! As Lori discussed in our interview, the Bar Foundation has so many amazing programs. If you weren’t able to make the fundraiser, please consider a donation to the Foundation. The MCBA Holiday Party put on by the Young Lawyers will be returning to the Black Fin on December 7, 2017. Save the date and enjoy some great company, food and holiday spirit! If anyone is interested in sponsoring the event, please contact Sherman Abdo at [email protected] or any of the Young Lawyers Board of Directors.


FROM THE PRESIDENT

Circuit Court Corner

CIRCUIT COURT CORNER

by Macomb County Circuit Court Administration

Judge Tracey A. Yokich was sworn in by Michigan Supreme Court Chief Justice Stephen J. Markman as president of Michigan Judges Association (MJA) during the MJA’s annual conference in August. Judge Yokich will begin her term as President of the MJA on December 1, 2017. The MJA is one of three judges associations sanctioned by the Michigan Supreme Court, along with the Michigan Probate Judges Association and the Michigan District Judges Association. The MJA was established in 1927 to improve the administration of justice, professional excellence, and the general welfare of its members. Judge Yokich was appointed to the Macomb County Probate Court in 2003, and subsequently elected to the 16th Judicial Circuit Court in 2004 and reelected in 2011. In addition to her work with the MJA over the last 12 years, Judge Yokich is an active member of the Children’s Hospital of Michigan Board of Trustees, the Michigan and Macomb Bar Associations, the Michigan State Bar Foundation, the Michigan Air Guard Historical Association, and the Selfridge Air Force Base Community Council. For more information on the MJA, please visit mijudge.org.


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Some Evidence

SOME EVIDENCE

Hon. Carl Marlinga, Macomb County Circuit Court Judge

One of the joys of serv-ing as a probate court judge for four years was presiding over the many cases in which the litigants were unrepresented by counsel. No – I do not mean this as some snarky, disrespectful comment about lawyers. I am simply refer-ring to the great pleasure I take in questioning and cross-examining witnesses. Since no lawyers were present to get the ball rolling, it was left to me to do a “Judge Judy” imitation to make sure that the multi-faceted collection of competing interests and parties had their respective day in court. Nowadays in circuit court (where almost everybody lawyers up), I am very much relegated to the passive task of being a judge, ceding to lawyers the tasks of lawyers. I know I can still ask a question or two, but my role is carefully circumscribed by MRE 614 and the cases annotating that rule. MRE 614 is entitled

“Calling and Interrogation of Witnesses by Court”, and it reads as follows:

(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

Irealizethatatfirstblushthis rule appears to have little re-straint on the questions a judge

may ask or the manner in which he or she asks them; but case law supplies the necessary check and balance. In People v Stevens 498 Mich 162; 869 NW2d 233 (2015), the defendant was convicted of second degree murder and sec-ond degree child abuse. He ap-pealed. On appeal, the defendant argued that the circuit court judge deprived him of a fair trial by the judge’s aggressive questioning of the defendant and the defendant’s expert witness. By such ques-tioning, the defendant contended, the trial judge “pierced the veil of impartiality” in front of the jury, making it appear that the judge thought the defendant guilty. The Court of Appeals split in deciding the case. All three judges agreed with the maxim that a judge may not “pierce the veil of impar-tiality.” The two judge majority held that the veil was not pierced because the court’s conduct or comments were not “of such a


natureastoundulyinfluencethejury”. [People v Stevens, unpub-lished opinion per curium of the Court of Appeal, issued April 10, 2014 (Docket No. 309481), citing People v Conley, 270 Mich App 301; 715 NW2d 377 (2006).] The dissenting judge opined that the proper statement of the test was whether the conduct “may well have unjustifiably aroused sus-picion in the mind of the jury as to a witness’ credibility…and whether partiality quite possibly couldhaveinfluencedthejurytothe detriment of the defendant’s case.” [Stevens (SERVITTO, J., dissenting), unpublished opin-ion at 1, quoting People v Ster-ling, 154 Mich App 223; 228, 397 NW2d 182 (1986).] Using this formulation, the dissenting judge would have reversed. The Supreme Court ac-cepted leave to appeal, reversed the Court of Appeals and remand-ed the case for a new trial. The Supreme Court’s opinion correct-ly perceived that the problem in the lower court opinions (in the cases cited by the majority and dissenting opinions of the Court of Appeals panel in Stevens, and in a number of other prior appel-late cases as well) is that there are a number of formulations

which are all ultimately aimed at trying to determine whether the trial court’s conduct is harm-less error or reversible error. The Stevens Supreme Court opinion solves this riddle by calling such conduct structural error; mean-ing that once an appellate court determines that the veil of impar-tiality has been pierced, there is a structural error which requires automatic reversal. The court ar-ticulated the test as follows:

A judge’s conduct pierces this veil and violates the constitutional guarantee of a fair trial when, con-sidering the totality of the circumstances, it is reasonably likely that the judge’s conduct improp-erlyinfluencedthejurybycreating the appearance of advocacy or partiality against a party.[Stevens, 498 Mich at 171]

Of course, looking at the above formulation, it does not appear that the Supreme Court moved very far away from the various prior formulations found in the opinions of the Court of Appeals. The big difference in

the Supreme Court opin-ion is that by calling this conduct “ s t r u c t u r a l error” (like not swearing in the jury or comment-ing upon the

defendant’s failure to testify in his own behalf) the high court re-moved the secondary analysis of whether the quantum of evidence against the defendant is such as to make any error harmless. The usefulness of the Stevens case is that without it, an attorney listening to a judge take over a case is fairly help-less. MRE 614, on its face, does not appear to have any check and balance against a runaway judge who is determined to relive his or her perceived glory days as a tough prosecutor or brilliant defense attorney. Just citing the court rule is not enough because the rule says, time and again, that a judge “may” call witnesses and that the judge “may” interro-gate witnesses. The rule appears to invite judicial activism, and does not appear to set any limits on how far a judge may go. It is only by counsel politely suggest-ing that the court’s questioning may exceed the limits of People v Stevens that an overly enthusi-astic judge may pause to consider his or her conduct. In the ensuing sidebar conference, one might also softly and subtly reference the term “structural error.” Of course, it is still proper for a judge to ask questions. A tri-al court may intervene to clarify an ambiguous answer or to pro-vide relevant information as long as the questions are not intimidat-ing, argumentative, prejudicial, or partial. People v Weathersby, 204 Mich App 98; 514 NW2d 493 (1994). Ultimately, a judge must always be seen as an impartial ar-biter, and never an advocate.

SOME EVIDENCE

MACOMBBAR.ORG 9NOVEMBER 2017


Calling All MCBA Members...It’s the Juvenile Law Committee

FROM THE JUVENILE LAW COMMITTEE

by Michael Gibbs Esq.,Juvenile Law Committee Chair

As the new chair of our MCBA’s Juvenile Law Committee, I’d like to take a moment to bring you the scoop on our monthly meetings format and invite all MCBA Members to join in. First, however, I must say that there is a lot going on in the Gibbs household right now. My wife and I have just been blessed with the birth of our son, Morgan. This, of course, means that our home has been completely taken over by baby gear and will likely never be neat and tidy again. Baby Morgan also loves lots of attention and enjoys having mom and dad stay up all night with him. Nonetheless, there is always a little extra time for juvenile law - as this experience has helped put into perspective for me just how special children

are and what an important field this is in our justice system. Juvenile Law Committee Meetings will now be held at noon on the 2nd Wednesday of each month in the Jury Room of the Hon. Tracey A. Yokich.

I think you will find these meetings to have an informative and friendly atmosphere. Judge Yokich is the judicial member of our Juvenile Law Committee and attorney Donald Gillain is our Committee’s Board of Directors liaison. In addition to their regular presence at meetings, we will be joined by Chief Juvenile

Court Referee Linda Harrison who will discuss updates from our appellate courts on juvenile law (quick tip for those that want to keep on top of the latest in appellate opinions, orders, and news: you can subscribe

at courts.mi.gov to receive e-mail updates through the Michigan One Court of Justice website). We will also have other judges and referees join us from time to time to discuss juvenile topics and provide perspective

from the Bench. In the near future, we will be discussing plans for upcoming seminars and Bar Briefs articles. In addition, there will always be the opportunity at meetings to share your thoughts, concerns, and questions. Our meetings are open to all and you can simply drop in. However, if you send us a quick RSVP

Michael Gibbs and Family. Congratulations!


through the MCBA website we will then know how much pizza to order for each meeting. In closing, most of us attorneys on the juvenile side have known and worked with one another for quite a while. I want to share how heartwarming it was recently while my wife and I were in the hospital for the delivery of our son and many of you dove right in to help me and, importantly, my clients. This made me feel that we are a family of juvenile practitioners rather

than just individual lawyers wandering around on our own. And, I am grateful to all of you for that. With our combined efforts, it is my intent that our Juvenile Law Committee will be productive, rewarding, and foster this spirit as we enter the year ahead. You can also feel free to e-mail me [email protected], Donald Gillain, or Judge Tracey Yokich at any time with input and questions. We look forward to seeing you at the next meeting.

FROM THE JUVENILE LAW COMMITTEE

This Event is FREE. Appetizers,

Cash Bar

If you would be

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please contact

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Annual Macomb County Bar Association Holiday Party

Hosted by Young Lawyers Section

Thursday, December 7, 2017 • 5:00pm

Blackfinn at Partridge Creek 17380 Hall Road, Clinton Township, MI 48038

Rec’d With the PresidentInstallation of Karen Trickey Pappas and

the 2017-2018 Board of Directors


1.

2. 3.

4.5.


1. Hon. Tracey Yokich swearing in the 2017-2018 MCBA Board of Directors. Karen Trickey Pappas, President, Dawn Prokopec President-Elect, Frank Briguglio, Director, Stephen Becker, Immediate Past President, Calvin Brown, Director, Joe Golden, Treasurer, Jon. C. Biernat, Secretary, Annemarie Lepore, Director, Tim Kohler, Laura Marji, YLS Chair, Ryan Zemke, Director and Angela Medley, WLAM President. 2. State Bar of Michigan President Donald G. Rockwell, Immediate Past President Stephen Becker, President Karen Trickey Pappas, Secretary Jon C. Biernat and President-Elect Dawn Prokopec.3. Hon. Mary Chrzanowski, Stephen Becker and Lynn Davidson.4. MCBA Board of Directors: Frank Briguglio, Director, Dana Warnez, State Bar of Michigan Treasurer, Dana Freers, Director, Calvin Brown, Director, Donald G. Rockwell, State Bar of Michigan President, Stephen Becker, Immediate Past President, Karen Trickey Pappas, President, Jon C. Biernat, Secretary, Dawn Prokopec, President-Elect, Lori Smith, Director, Angela Medley, WLAM-Macomb Region President, and Peter W. Peacock, Director.5. Referee Kristin Stone, Hon. Tracey Yokich and President Karen Trickey Pappas.6. Randy Chioini, Hon. Tracey Yokich and Past President Carl Chioini.7. Hon. Tracey Yokich swearing in President Karen Trickey Pappas.8. Jon. C Biernat, Allesandra Sabatini, and Hon. James Maceroni.9. President Karen Trickey Pappas.

6. 7.

8.

9.


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Lunch with a Legend: Florence Schoenherr-Warnez By Charles Trickey III

Over the next few months, I will be meeting for lunch with other legends of our legal community at their favorite dining establishments, with my reports to follow in each edition of Bar Briefs during Karen Pappas’ presidency.

MCBA Past Presidents Kim Cahill and Dana Warnez have followed in the professional footsteps of their accomplished mother, Florence Schoenherr Warnez. But as a young woman, there were no footsteps for Florence to follow. There wasn’t even a pathway. In the 1950s, she, and the few other women in her U of D Law School night class, were on their own, striving to succeed in a man’s world. And succeed Florence did. Florence Schoenherr Warnez was a pathfinder for 21st Century women lawyers. Working for an attorney during the day, going to law school at night, passing the bar, building a practice, and also raising three daughters, she became the model for women lawyers of today. Born and raised in Center Line, she graduated summa cum laude from St. Clement High School. After high school, Florence worked for attorney Guy Frost, whose office was in Center Line. She enrolled at the University of Detroit in undergraduate commerce and finance classes

in 1951. The following year, she made special application for, and was admitted to, the U of D Law School, as the sole special student admitted to her class. Attending night school, Florence continued to work for

Guy Frost, adding to her legal experience. Graduating from U of D Law School, cum laude (are you sensing a pattern?) in 1957, Florence passed the bar exam and continued with the Frost law firm. While in law school, Florence was one of only five other women students, and they all banded together. Her good friend, Kay (Downs) Buiteweg, and she were study partners.

Her favorite law school professor was none other than a Macomb County legend himself, George Deneweth. Florence remembered Judge Deneweth as a compassionate law professor who treated her and the other

women students with respect and concern. To Florence, Judge Deneweth continued those courtesies when she began appearing before him as an attorney. In the early 1960s, Florence was one of only a few women attorneys in Macomb County. She, along with Judge Mary McDevitt of Roseville, Justine Orris (who became the first woman president of the MCBA) and Mildred

Vlaich (who became a judge in the 52nd District Court), were the founding members of the Women Lawyers Association of Macomb County. Since there were only four of them, they would hold their meetings in one of their cars, most famously in a Cadillac. In 1986, with its membership grown far beyond the original four, the Women Lawyers Association of Macomb County honored Florence with



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its Special Service Award, and also bestowed upon her the WLAM Macomb Award in Recognition of Integrity and Achievement for its 2014/2015 bar year. Her first trial expericence was a divorce trial before Judge Alton Noe. Divorce trials in the era were a little different, because the plaintiff had to prove that the other spouse was at fault in order to obtain a judgment of divorce. Complicating the trial was the defendant husband, who showed up in court on the first day of trial wearing a very conspicuous crucifix, probably hoping for some divine intervention. His fervent prayers went unanswered, as Florence carried the day for her client, with Judge Noe granting the divorce. A case in which Florence takes great pride involved a suit to set aside a deed conveyance, in which the opposing attorney was another legendary Macomb attorney, Ed Gallagher, who later sat on the circuit bench. Although her client did not prevail in the trial court, Florence’s appellate advocacy convinced the Court of Appeals

to set the deed aside. Besides the professional victory, Florence liked the rewarding feeling of helping a client who had chosen her to fight for the client’s cause. Florence built a successful real estate practice, taking pride in closing many million dollar deals. In our interview she said that she always wanted to be considered “tough, but fair”. From the one case I had against her, I found her to be just that. When I asked Florence for advice to young lawyers, she said these words: “Committment, integrity and honesty. Follow those three words if you want to be a success”. For this interview, Florence chose one of her favorite restaurants, The Pantry, in Sterling Heights, where we were joined by her daughter, Dana Warnez. After enjoining our main course, we shared one of Florence and Dana’s favorite treats, an Apple Pancake, as shown in the accompanying photo.

LUNCH WITH A LEGEND


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Prenuptial Agreements In the Wake of Allard III

FROM THE FAMILY LAW COMMITTEE

by Randall J. Chioini, Chioini Group PLLC and Family Law Committee Chair

As most attorneys are aware, prenuptial agreements are contracts that allow parties to predetermine their financial fate in the event their marriage ends in a divorce. For many years, attorneys and parties have suc-cessfully used prenup-tial agreements as a reasonably efficient mechanism of avoid-ing the expense and acrimony of divorce litigation by resolv-ing and negotiating property settlement and financial matters in advance of the mar-riage and arguably, in a more fair and rea-sonable manner. As divorce rates continue to rise, parties and practitioners alike have hedged their bets by draft-ing prenuptial agreements that they believed would best protect their clients and would stand the

test of time. Unfortunately, with the continued evolution of this area of law, the one thing that

is becoming readily apparent is that even the most carefully tai-lored prenuptial agreement, may not be as steadfast as we once

thought. This article seeks to give a broad and basic overview of the recent Allard decision and the

continued changes in this area of law.

MCL 557.28 provides that “[a] con-tract relating to prop-erty made between persons in contem-plation of marriage shall remain in full force after the mar-riage takes place.” It was not until 1991 that prenuptial writ-ten agreements were confirmed to be bind-ing and enforceable in Michigan subsequent to a divorce. Rinvelt v Rinvelt, 190 Mich App 372; 475 NW2d 478 (1991). Not only was it deemed enforceable,

but a prenuptial agreement was determined to encourage rather than discourage marriage. The Rinvelt Court imposed require-


ment of fairness. It further re-quested that the circumstances be reasonably unchanged to make its enforcement fair and reasonable. The court of appeals established that the following factors need to be considered in order to deter-mine whether a prenuptial agree-ment is enforceable:

1) Was the agreement obtained through fraud, duress, mistake, or misrepresentation or nondisclosure or material fact?

2) Was the agreement unconscionable when executed?

3) Have the facts and circumstances changed since the agreement was executed, to make its enforcement unfair and unreasonable?

Rinvelt, 190 Mich.App at 380.

What constituted as a change in circumstances or facts, the third factor in the Rinvelt test, was determined in Reed v Reed, 265 Mich App 131; 693 NW2d 825 (2005). The Reed Court held that that trial court erred by finding that the length of parties’ marriage and the increase of assets over the years justified voiding their clear and unambiguous prenuptial agreement. In Reed, the parties’ total marital estate was less than $20,000 at the time of the execu-tion of the prenuptial agreement. At the time of divorce, it was in excess of $5,000,000.00. The terms of the prenuptial agreement resulted in husband being award-ed a significantly greater share of the estate. The court of appeals

found that the long-term aspect of a marriage is not an unfore-seeable change of circumstance that would satisfy the requisite to deem a prenuptial agreement unenforceable. Additionally, the clear language of the agreement took into account that the parties would acquire substantial assets during the marriage. One party’s assets growing much greater than the other’s is not unforeseeable and thus, it is not an adequate change in circumstance requiring the court to void the agreement.

Even if the prenuptial agreement was very carefully drafted and agreed upon by the parties, a recent Michigan Su-preme Court decision calls into question whether the agreement can be upheld.

In Allard v Allard, two days before their wedding, Chris-tine and Earl entered into a pre-nuptial agreement. Per the terms, each party retained sole owner-ship of all real, personal property owned prior to marriage and they would split 50/50 of any prop-erty acquired after marriage. The agreement also stated that this settlement discharged any claims to alimony, support, or property division incident to the marriage or divorce. The parties were mar-ried for roughly 17 years and had children before Earl filed for di-vorce. Christine argued that the prenuptial agreement was void because the terms were uncon-scionable and there was proper change in circumstances that war-ranted setting aside the agree-ment. Christine signed the agree-ment by coercion pending her wedding night, did not have inde-pendent counsel, and was abused

throughout the marriage. Earl filed a motion for summary dis-position, claiming that all issues regarding property have been pre-determined by the agreement and should not be litigated. The trial court agreed and granted his mo-tion, stating that the agreement was not unconscionable and no change in circumstance occurred that would make the contract un-fair and unreasonable. The court of appeals, in Allard I, 308 Mich App 536; 867 NW2d 866 (2014) held that a party’s fault in the breakdown of the marriage is not considered as a change in circum-stance sufficient to set aside an agreement.

The case went up and down the appeals, and eventually to the Michigan Supreme Court, who remanded it to the court of appeals. The court of appeals (Al-lard III, 3188 Mich App 583; 899 NW2d 420 (2017)), found that parties cannot waive the statu-tory authority of a court to invade a party’s separate property when ordering a property division in a divorce, regardless of the exis-tence of an prenuptial agreement. Under MCL 552.23(1), a court is allowed to award either spouse a portion of the property of their counterpart where the property within the marital estate initially awarded is insufficient for family support. Per the statutory lan-guage, parties cannot agree to de-prive a trial court of its equitable discretion, especially when the result of a prenuptial agreement would be so inequitable that it shocks the conscience of the court.

The question now is where does the Allard decision leave us now? Does this mean that all pre-



nuptial and postnuptial agreements are at risk of being unenforceable? Surely many attorney-doom-sayers believe that may be the natural progression. One thing is for sure is that no matter how perfect a prenuptial agreement is tailored, unforeseen events and circumstances or the simple inequity of the agreement itself, may ultimately result in the Court exercising its discretion to invade property pursuant to MCL 552.23(1).

While the prenuptial agreement will likely not go extinct, it is important as practitioners that our clients understand that the constant flux of the law in this area. Further, to avoid problems and to attempt to avoid the risk of separate property be-ing invaded in contravention of parties’ prenuptial agreement, we have the following recommendations.The Family Law Committee’s Practical Tips in Drafting Prenuptial Agreements:

• Assure full and frank disclosure. Attor-neys must investigate whether the informa-tion contained in the prenuptial agreement is accurate and complete. Any incomplete and vague statements of assets may be the basis to set the contract aside.

• Both parties should retain indepen-dent representation. In order to avoid the argument that the agreement was ob-tained through fraud, duress, or mistake, it is vital for each party to have independent counsel to negotiate, review and sign the pre-nuptial agreement. This way, each party will have representation to discuss the validity of the agreement, its enforceability, and the le-gal consequences.

• Creatively draft the agreement to take into account various circumstances. Though it is impossible to predict what chang-es of circumstances may occur during a mar-riage, you can draft language that take into account various changes. The focus of this factor is to determine whether “the changed circumstances were reasonably foreseeable, either before or during the signing of the pre-nuptial agreement.” Woodington v Shokoohi, 288 Mich App 352; 372 (2010). Therefore, aspects that are foreseeable include: length

of a marriage, increase in the parties’ earn-ing potential, and commingling of separate assets into marital assets. It would be wise to go over these scenarios with your client when drafting the agreement. For example, if there is a family business, you should determine the money each party should receive.

• Negotiate equitable terms from the beginning. You want to avoid any notion of unconscionability when the agreement is executed. Make sure the other party is free to accept or reject any term to avoid any pro-cedural unconscionability during negotia-tion and drafting. Further, it is important to also consider substantive unconscionability - is any term so extreme that it would shock the conscience? If so, do not include it in the agreement. The agreement needs to be able to stand the test of time. Make sure the ne-gotiation and drafting process was fair out of the gate.

• Make sure client understands the cur-rent (and potential) law on this topic. An important facet of our attorney-client re-lationship is ensuring that are clients are in-formed and apprised of the law and the po-tential effect it may have on their prenuptial agreement. As a matter of course it may be wise to include a written correspondence or acknowledgement by the client that the pre-nuptial agreement has been drafted with con-siderable care and caution, however, as a re-sult of changes that may occur in the law and the changes that may come about in parties’ lives, there can never be any guarantee that the agreement while be strictly enforced nor has the practitioner provided any warranty to that effect.

What are your thoughts on Allard III? We’d like to know. Send your questions/comments (and any suggestions for topics for future Family Law sem-inars to Randall J. Chioini, MCBA Family Law Committee Chair at: [email protected]



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Macomb County Bar Association and Criminal Defense Attorneys of Michigan (CDAM) Present

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Documents

Bar Briefs - c.ymcdn.com · The Trailblazer Macomb County Bar Association 2017-2018 Board of Directors President Karen Trickey Pappas (586) 465-8227 President Elect Dawn Prokopec