May 24, 2011, Introduced by Rep. Walsh and referred to the Committee on Judiciary.
A bill to amend 1846 RS 84, entitled
"Of divorce,"
by amending sections 18 and 19 (MCL 552.18 and 552.19), section 18
as amended by 1991 PA 86.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
18. (1) Any There is a
presumption that rights in and to
vested pension, annuity, or retirement benefits, or accumulated
contributions in any pension, annuity, or retirement system,
payable to or on behalf of a party on account of service credit
accrued
by the party during marriage shall be considered part of
the
are marital estate property subject to award by
the court under
this chapter.
(2)
Any There is a presumption
that rights or contingent
rights in and to unvested pension, annuity, or retirement benefits
payable to or on behalf of a party on account of service credit
accrued
by the party during marriage may be considered part of the
are
marital estate property subject
to award by the court under
this
chapter where if just and equitable.
(3) A presumption under this section may be rebutted by the
introduction of evidence that the property is nonmarital property
as defined in section 19 of this chapter.
(4) (3)
Upon motion of a party or upon
consent of the parties,
an
order of the court under this section entered before the
effective
date of the amendatory act that added this subsection
July 18, 1991 shall be amended to satisfy the requirements of an
eligible domestic relations order and to effectuate the intent of
the parties or the ruling of the court. As used in this subsection,
"eligible domestic relations order" means a domestic relations
order that is an eligible domestic relations order under the
eligible domestic relations order act, 1991 PA 46, MCL 38.1701 to
38.1711.
Sec.
19. (1) Upon the annulment of a marriage, a divorce from
the
bonds of matrimony or a judgment of separate maintenance, the
court
may make a further judgment for restoring to either party the
whole,
or such parts as it shall deem just and reasonable, of the
real
and personal estate that shall have come to either party by
reason
of the marriage, or for awarding to either party the value
thereof,
to be paid by either party in money.For purposes of
distribution of property under this section, all property acquired
by either spouse after their marriage and before either spouse
files a complaint for annulment or divorce in a proper court,
including nonmarital property transferred into some form of co-
ownership between the spouses, is presumed to be marital property,
regardless of whether title is held individually or by the spouses
in some form of co-ownership such as joint tenancy, tenancy in
common, or tenancy by the entirety. The presumption under this
subsection may be rebutted by the introduction of evidence that the
property is nonmarital property.
(2) For purposes of distribution of property under this
section, a stock option or stock award granted to either spouse
after the marriage and before a judgment of annulment or divorce,
whether vested or nonvested or whether the value is ascertainable,
is presumed to be marital property. This presumption may be
rebutted by the introduction of evidence that the stock option or
award is nonmarital property. The court shall award a stock option
or award or divide it between the parties at the time of a judgment
of annulment, divorce, or separate maintenance recognizing that the
value of the stock option or award may not then be determinable and
that the actual division of the option or award may not occur until
a future date. In making the award or division between the parties,
the court shall consider, in addition to the factors in subsection
(4), all of the following:
(a) All circumstances underlying the grant of the stock option
or award, including whether the grant was for past, present, or
future efforts, whether the grant was to encourage the spouse to
continue employment with the company, or any combination of these
circumstances.
(b) The length of time from the grant of the option to the
time the option is exercisable.
(3) Commingled marital and nonmarital property shall be
treated in the following manner, unless otherwise agreed by the
spouses:
(a) If the marital and nonmarital property were commingled by
contributing 1 estate of property into another resulting in a loss
of identity of the contributed property, the classification of the
contributed property is transmuted to the estate receiving the
contribution, subject to subdivision (b). However, if marital and
nonmarital property are commingled into newly acquired property
resulting in a loss of identity of the contributing estates, the
commingled property shall be considered transmuted to marital
property, subject to subdivision (b).
(b) If 1 estate of property makes a contribution to another
estate of property, or if a spouse contributes personal effort to
nonmarital property, the contributing estate shall be reimbursed
from the estate receiving the contribution for any contribution for
which the contributing spouse was not reasonably compensated
notwithstanding any transmutation. However, this subdivision does
not apply if the contribution is not retraceable by a preponderance
of the evidence, if the contribution was a gift, or, for a
contribution by a spouse of personal effort to nonmarital property,
unless the effort is significant and results in substantial
appreciation of the nonmarital property. Personal effort of a
spouse that has not been reasonably compensated shall be considered
a contribution by the marital estate. The court may provide for
reimbursement out of the marital property to be divided or by
imposing a lien against the nonmarital property that received the
contribution.
(4) In an action for annulment, divorce, or separate
maintenance, the court shall assign each spouse's nonmarital
property to that spouse. It also shall divide the marital property
in just proportions considering all relevant factors, including all
of the following:
(a) The contribution of each party to the acquisition,
preservation, or increase or decrease in value of the marital
property, including both of the following:
(i) Any decrease in value of the marital property attributable
to a payment considered to have been an advance from the parties'
marital estate for the interim payment of attorney fees as ordered
by a court or by agreement of the parties. Payments from a spouse's
nonmarital estate for the other spouse's attorney fees or costs
shall be reimbursed from the marital estate.
(ii) Any significant contribution of a spouse as a homemaker or
to the family unit.
(b) The dissipation by each party of the marital or nonmarital
property.
(c) The value of the property assigned to each spouse.
(d) The duration of the marriage.
(e) The relevant economic circumstances of each spouse when
the division of property is to become effective, including the
desirability of awarding the family home, or the right to live in
the family home for reasonable periods, to the spouse that has
custody of any children.
(f) Any obligations and rights arising from a previous
marriage of either party.
(g) Any prenuptial agreement of the parties.
(h) The age, health, station, occupation, amount and sources
of income, vocational skills, employability, estate, liabilities,
and needs of each of the parties.
(i) The custodial provisions for any children.
(j) Whether the apportionment is in lieu of or in addition to
spousal support.
(k) The reasonable opportunity of each spouse for future
acquisition of capital assets and income.
(l) The tax consequences of the property division on the
respective economic circumstances of the parties.
(5) As used in this section, "nonmarital property" means
property that is either or both of the following:
(a) Property acquired by a spouse before the marriage
regardless of the purpose or intent of the acquisition.
(b) Property to which 1 or more of the following apply:
(i) The property was acquired by gift, devise, intestate
distribution, or inheritance at any time.
(ii) The property was acquired by a spouse in exchange for
property acquired before the marriage or in exchange for property
acquired by gift, devise, intestate distribution, or inheritance at
any time.
(iii) The property was acquired by a spouse after a judgment
of separate maintenance.
(iv) The property is excluded from marital property by valid
agreement of the parties.
(v) The property is the subject of a judgment or property
obtained by a judgment awarded to the spouse from the other spouse.
(vi) The property consists of the increase in value of property
described in subparagraphs (i) to (v), regardless of whether the
increase results from a contribution of marital property,
nonmarital property, or the personal effort of a spouse or from
another source. Property described in this subdivision is subject
to the right of reimbursement under subsection (3).
(vii) The property consists of income from property described
in subparagraphs (i) to (vi).
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No._____ or House Bill No. 4673(request no.
02213'11 a *) of the 96th Legislature is enacted into law.