michigan property division statutes (00969014) · pdf fileof law that parallels – but...

Michigan Property Division Statutes

MCL 552.19, .23 and .401

(The Rubik’s Cube of Property Division)

James P. Cunningham B. Andrew Rifkin

Williams, Williams, Rattner & Plunkett, P.C. The Law Firm of John F. Schaefer

When read independently, Michigan’s three essential property division statutes and case

law might seem logical. However, when one attempts to reconcile case law and statute, and

consider the body of law as a whole, Michigan’s equitable distribution system becomes confusing,

even messy.

Michigan’s property division statutes have not been holistically revised since the passage

of RS 1846, “Of Divorce.” The fact of the matter is these three statutes do not interrelate and there

is no better evidence than in the past 15 years, over 300 cases (both published and unpublished)

have had appellate review, with widely varying results in application to fact-sensitive cases.1

Our judiciary has labored remarkably over this plethora of work, attempting to weave

whole cloth in the absence of past legislatures’ call to duty. The economic toll on the public who

have chosen to divorce, and the efforts expended by our courts in reviewing the same issues over

and over again, cannot be calculated.

I. Introduction

A. Three Principles of Michigan Jurisprudence

The following features are historically prominent in the manner Michigan divides property

upon divorce. From its earliest statute and case law to the present, three principles of jurisprudence

have remained largely undisturbed.

1) Michigan’s Chosen Model of Property Division is Long-Standing

Our Supreme Court, long before its 1999 decision in Dart v. Dart2 recognized that a

1 A. Cervantes, Michigan Case database, Lexis. Compare, 1980-1996 there were 68 cases using the same

parameters. 2 Dart v. Dart, 460 Mich. 573,591 (1999), cert denied 529 US 1018 (2000). “Normally property received by a

married person as an inheritance, but kept separate from marital property is deemed to be separate property not

subject to distribution.”

Michigan Property Division Statutes (Cunningham - Rifkin).docx 2

married persons’ separate property will be preserved upon divorce. Wait v. Bovee3 held:

“By the law of 1846 . . . the estate of Mrs. Wait owned on her

marriage . . . was kept and preserved to her as her separate property

after the marriage to the “same extent as before the marriage.”

* * *

“She held her property interest as though she were sole owner under

the impression of statute it continued so . . . there could be no

blending as the law kept her right distinct.”

Johnson v. Johnson4 even earlier, made the same pronouncement, albeit more dramatically:

“Upon dissolution of a marriage the wife was entitled to immediate

possession of all her real estate, in the same manner as if her

husband was dead.”

In summary, it is axiomatic to say that Michigan’s unique history recognizes and protects

the separate property of its citizens.

2) Courts have Jurisdiction Only to Divide “Marital Property”

Under common law, no property rights arose “by reason of the marriage.”5 This was also

true upon a decree of divorce. In the absence of a statute, courts had no power to order transfers

of property.6

Michigan courts have recognized that the exercise of their power to divide property is

limited by statute to “marital” property. It is the legislature’s duty to provide to the courts statutes

for enforcement and interpretation, if necessary, not for the courts make law on their own.

In 1976 Charlton v. Charlton7 held:

“The laws of divorce are statutory in nature, and the equitable

disposition of property is confined to the limits of the applicable

statutes.”8

3 Wait v. Bovee, 35 Mich 425, 428 (1887) Accord: Peck v. Peck, 66 Mich 586 (1877) “We do not consider this a

proper proceeding to bring about an accounting between a husband and wife’s separate property . . . it was her

separate estate, subject to her entire control independent of her husband,” citing for authority, Uhl v. Uhl, 52 Cal.

250. 4Walker’s Chancery Report 309 (1843). 5 §19. 6 For further discussion, see Gregory, Understanding Family Law 3rd LexisNexis (2005) p. 387, and Ellman Family

Law LexisNexis (2004) p. 272. 7 Charlton at p. 92. 8 See also, Sparks v. Sparks, 440 Mich 141, 157 (1992): “The trial judge must follow the “statutory scheme.” See

Also Deyo v. Deyo, Mich. App 245210, 5/25, 2004.


This pronouncement is also not new. In 1911, Root v. Root9 held that:

“Divorce is purely a statutory proceeding.”

In 1917 in Allen v. Allen,10 the Supreme Court reviewed the statutory construction of the

divorce laws, holding them to be:

“. . . unambiguous, and clothes the court with the plenary authority to award

the whole or part of the lands held by the parties as tenants by the entireties

to either of the parties . . . the purpose of the legislation was undoubtedly to

provide for an equitable elimination of the whole property held by the

entireties irrespective of the character of the tenancy.”

Allen read the 1846 ‘Of Divorce’ statute to permit a court to award jointly held property,

i.e., “marital property,” to one spouse. That the same statute would be interpreted by the majority

opinion in Charlton and its progeny 70 years later that a court could “invade” separate property

and deem it marital.11

3) Division of the Marital Estate is Equitable in Nature

Derived from the common law chancery courts, there is no more firm principle than

division of marital property is equitable in nature.12 Division of marital property is left to the

sound discretion of the court, under terms that are “just and reasonable” 13 and will not be

overturned in the absence of a clear showing of an abuse of discretion.14

Division of marital property is governed by established “certain principles of general

application,” and as well, by “additional factors as may be relevant to the disposition of assets,”

again by the equitable and discretionary power of the court to produce a fair result.15

Equity is the rule of law in the division of the marital estate.

B. Michigan Property Division Statutes

9 Root v. Root, 164 Mich 638, 639 (1911). 10 Allen v. Allen, 196 Mich 292, 296 (1917), citing Jeske v. Jeske, 147 Mich. 367,368 (1907). 11 See discussion hereafter, Reeves v. Reeves, 226 Mich App 490 (1997); Hanaway v. Hanaway, 208 Mich App 278

(1995). 12 Sparks v. Sparks at p. 157, citing Johnson v. Johnson, 346 Mich App 418 (1956). 13 MCL 552.19. 14 Sparks at p. 159. 15 See factors set forth in Sparks at p. 159; Johnson at p. 159.


Michigan’s “dual classification” model of property division recognizes separate and

marital property. As mentioned earlier, this is not a recent revelation. By doing so it has rejected

the other property division models extant in the United States.16

The present statutes can be summarized as follows:

MCL 552.19 (§19) requires the court to divide “the real and

personal estate that shall have come to either party by reason of

the marriage.” This is Michigan’s divorce property statute.

MCL 552.23 (§23) permits the court to make an additional

property award “if the estate and effects awarded to either party

are insufficient for the suitable support and maintenance” of that

party or the children.

MCL 552.401 (§401) permits the court to award one spouse

property of the other party, “if it appears from the evidence in

the case that the party contributed to the acquisition,

improvement or accumulation of the property.”

It is not possible to determine when by reading the above statutes, what marital property is

and what is not, and what to do on those occasions where the property gets mixed up, or

“comingled.”

As mentioned, this reconciliation of case law and 150 year old statutes has been left to the

courts, one case at a time. Also as mentioned, the continuing necessity to interpret each fact

sensitive case has encouraged an explosion of litigation, discourages settlement and increases court

costs.17

II. Statutory Interpretation

A short history of ‘invasion’ and other big words

The three seminal cases necessary to understand property division in Michigan in lieu of,

or actually in spite of our three property division statutes are: Charlton v. Charlton, Reeves v.

16 For a more detailed discussion of property division systems, see Turner, Equitable Division of Property 3rd

Thompson West 2005. 17 In the past 15 years, over 300 cases, published and unpublished, have had appellate review, compared to 68 cases

in the 15 years earlier.


Reeves and Hanaway v. Hanaway.18 The hundreds of published and unpublished decisions grow

like branches as if from a three rooted tree.

A. Charlton v. Charlton

Case law prior to 1976 often, but not always, returned separate property “without

comment.”19 There is little debate that Charlton v. Charlton commenced the challenge of statutory

interpretation that continues today. 20

The issue in Charlton was under what conditions separate property, in this case the wife’s

inheritance, some of which was ‘comingled,’ could be considered as “marital” property, and

therefore subject to division.

The opinion focused on statutory construction. It noted, “however,” the legislature had

“deliberately” left §401 intact after amending §23. It thus implied that these two statutes had their

own separate functions, and relying upon the principle of construction that the legislature never

intends to pass a superfluous statute, held:

“We must therefore conclude that (§401) remains because the

legislature intended to provide for separate situations and that the

provisions of §401 do not apply to §23 and vice versa. Because the

trial judge must consider all of the statutes provided and each statute

must be given meaning, plaintiff’s inheritance could be awarded as

part of the property to be divided with defendant if the husband in

this case contributed to the acquisition, improvement or

accumulation of such property or if an award is otherwise

insufficient to maintain either party.”21

Whether the Court really believed it or not, it found that the Legislature “intended” §401

and §23 to be independent sources of authority to divide “marital” property. Because the two

statutes are to be construed as equal, all property could be divided if either the non-owner “may”

have contributed to it, or it was necessary for the “support” of the non-owning spouse. So, while

18 Charlton v. Charlton, 397 Mich 84, 94 (1976); Reeves v. Reeves, 226 Mich App 490 (1997); Hanaway v.

Hanaway, 208 Mich App 278 (1995). 19 Charlton, citing Johnson v. Johnson, 346 Mich. 418 (1956). In another case of this period, Raymond v. Raymond,

345 Mich 563 (1956), The Court returned to each party their premarital holdings upon a short marriage, and equally

divided the property accumulated during their marriage. 20 “Courts continue to exercise broad discretion . . . to the point that separate property division now has its own body

of law that parallels – but does not follow the equitable division law long applied to marital property.” Kelly, et al.,

Mich. Family Law, ICLE 7th Ed. Diane Raimi, Chapter 13, Property Division. 21 See Charlton at p. 93.


separate property is separate property, and while there cannot be an award of separate property

itself, it can be “brought” into the marital estate, subject by statute to division, when equity so

requires.

In retrospect, it is doubtful the Legislature had any such intention, unaware of the

consequences piecemeal passage of statute instead of a comprehensive scheme. Instead of pointing

out the paradox for the legislature to fix, as Sparks would do 15 years later, the Charlton Court

launched a policy sea change of its own.22

Charlton was not a unanimous decision. Former Governor Justice G. Mennen Williams,

in dissent, in commenting the trial court should have been tasked on the thinness of facts supporting

“invading” Mrs. Charlton’s inheritance (and a more appropriate consideration of alimony), he

found the majority analysis, and result, was plainly wrong. “Neither the trial court nor the Court

of Appeals” cited the “relevant” statutes that, as a result now appropriated her separate property.

Justice Williams viewed §401 and §23 to be “internally inconsistent.” His opinion held

restoring the wife’s separate property, including her “traceable” funds, is the only appropriate

property division when construing the relevant statutes together, “as we must.” He further opined:

“Our legislature has decreed that these amounts should not be part

of the joint property.” 23

Justice Williams’ would have left the separate property with its owner, as well as the

traceable, comingled separate property of the owner. The non-owner should be compensated to

the extent he “contributed” to the acquisition, improvement or accumulation under §401, not

putting the separate property into the marital estate, subject to division.

Furthermore, the Charlton majority did not even consider §19, the “by reason of the

marriage” statute. By the logic of its own holding, Michigan has not one, but three equitable

division statutes and that property can be divided if it meets the requirements of any one of them.

Hence would follow the “invasion” adjective, and the nomenclature of these two statutes

became the “invasion” statutes. For the next 20 years, case law was in chaos. Two distinct lines

22 Hon. Marilyn Kelly who authored the majority opinion in Sparks v. Sparks, 440 Mich 141 (1992) said:

“Unfortunately, the Legislature in Michigan did not amend the property division section along any of these lines; in

fact the 1971 Act (“No Fault Divorce Act”) did not amend the alimony support or property division section at all.”

. . . “The Legislature, if unhappy with the court’s interpretation could have corrected the statute. At this time, it

chose not to do so. . .” 23 Charlton at p. 103. A year earlier in Davey v. Davey, 106 Mich App 579 (1981), under almost identical facts as

Charlton, the Court of Appeals denied an “invasion” of separate property.


of authority even developed in the Court of Appeals, which was finally put to rest with the 1999

decision of Dart v. Dart.24

B. Hanaway v. Hanaway and Reeves v. Reeves

The significant decisions that followed, Reeves v. Reeves and Hanaway v. Hanaway, 1995-

1997, are the bellwether cases important not only for the legal effect of their rulings, but as the

starting point for the litigation explosion for the next 20 years.

The combined import of these two cases is what Charlton was trying to accomplish: when

the circumstances provided for in §23 or §401 exist, a party’s contribution or need for support

requires addressment and protection.

Or, as stated elsewhere:

“In facing these issues courts must balance the owner’s spouse’s

legitimate ownership claims against the interest of the non-owner

spouse whose financial needs and expectations may have been

established in reliance on that property.”25

Reeves provided the classification instruction, relevant today, that a trial court’s first

obligation is to “weed out” the separate assets of the parties.” 26 It continued the “invasion”

propriety of Charlton that separate property could be “reclassified” (when the parties haven’t done

it themselves) to marital property if either of the other two statutes were construed to be met.

§401 was read to approve including in the marital estate, post marital, “active

appreciation” of separate property. “However,” “passive appreciation” was not considered

marital.27 While lost in later discussion, Reeves remanded for determination of what the spouse’s

contribution was to the separate property’s accumulation, as opposed to simply including it.

Hanaway v. Hanaway broadened this interpretation to include that the contribution theory

may be direct or indirect, acknowledging the efforts of the non-owner, especially the homemaker

in the marriage partnership as a whole.

A substantial issue in Hanaway, also lost in later discussion (and citation) was the fact

24 For a more thorough and excellent discussion of the two distinct lines of authority, see Raimi, Mich Family Law,

ICLE 7th Ed. (2011); Cunningham, “Separate Property in Michigan.” Michigan Bar Journal (June, 2008). 25 Raimi at §15-17. 26 Reeves at p. 495. In another oft cited case Grotel v. Grotel, 113 Mich App 395 (1982) a contribution eligible for

compensation must be more than “indirect or minor.” “Proportionate” to the contribution is the reasoning found in

Gregg v Gregg, 133 Mich App 23 (1984). 27 McNamara v. Horner, 249 Mich App 177, 642 NW2d 385 (2002).


that now both opinions (Reeves and Hanaway) were disturbed about the failure of the [trial]

court to award alimony.

Hanaway clearly held that defendant’s family owned business to be his separate property.

However, equity needed to recognize Mrs. Hanaway was deserving of “money” for her

“contributions . . . in the form of household and family services.”28 The Hanaway remand “will

require” alimony, given the substantial income defendant was taking out of the business.

This important opinion “concluded” it didn’t make any difference whether this was a §401

situation, due to growth in value of defendant’s separate property post marriage, or a §23 “need”

problem to be met with alimony: plaintiff was entitled to something more for her efforts from the

marital estate.

The remand was very straightforward:

“We note that the court need not award plaintiff’s stock in the

business and may award a sum of money or other assets out of the

marital estate representing her equitable share of the business.”

(emphasis added.) 29

The problem became, evidenced by the legion of appellate decisions that followed, that it

did make a difference in the characterization of the relief accorded to plaintiff. It is difficult to

reconcile the grafting of the theory of “appreciation” in value of separate property during the

marriage, a mere footnote in Hanaway, or “invasion,” to what this panel had in mind: substantial

alimony and “money” from the marital estate, i.e., more than half, to compensate Mrs. Hanaway.30

In summary, there are two takeaways from Reeves and Hanaway: (1) alimony (spousal

support) and division of marital property must be considered hand in glove; (2) above and beyond

fulfilling a need requirement with appropriate “maintenance” (the proper historical term for

alimony) non-owner spouses or the non-separate property spouse that makes a significant

contribution needs to be recognized.

28 Hanaway at p. 294. 29 Hanaway at p. 295. 30 The Court of Appeals made a finding of fact in footnote 9 that the business “must have appreciated” because

defendant’s income tripled in the course of ten years. Expert testimony could just as easily conclude that this is not

necessarily true. If Mr. Hanaway was taking more and more income out, one could conclude that there would be no

increase in value.


C. Summary of Michigan’s Three Step Property Division Process

In conclusion, and notwithstanding our three property division statutes, case law carefully,

and sometimes painfully, gives us a three step process for dividing property in Michigan. None of

this, of course, is discussed or defined in our statutes; this is judicial theory that is becoming

‘codified’:

Step #1: Classification of property as “Marital Property” or “Separate Property”

a. Classify property as marital property or separate property.

b. Consider a reclassification of separate property as marital property based on:

i. Commingling; or

ii. Active appreciation based on either spouse’s efforts.

Step #2: Division of the “Marital Property”

Step #3: (Potential) Invasion of “Separate Property”

a. §.23 Invasion based on need; or

b. §.401 Invasion based on the efforts of the non-owning spouse.

A recent and succinct statement of the law is found in Cunningham v. Cunningham.31

“In any divorce action, a trial court must divide marital property

between the parties and, in doing so, it must first determine what

property is marital and what property is separate. Reeves v. Reeves,

226 Mich App 490, 493-494; 575 NW2d (1997). Generally, marital

property is that which his acquired or earned during the marriage,

whereas separate property is that which is obtained or earned before

the marriage. MCL 552.19. Once a court has determined what

property is marital, the whole of which constitutes the marital estate,

only then may it apportion the marital estate between the parties in

a manner that is equitable in light of all the circumstances. Byington

v. Byington, 224 Mich App 103, 568 NW2d 141 (1997). As a

general principle, when the marital estate is divided “each party

takes away from the marriage that party’s own separate estate with

no invasion by the other party.”

In conclusion and with thanks to our judiciary, and no thanks to our legislature, we have a

property division procedure in spite of our statutes. Until something else comes along, we are

31 Cunningham v. Cunningham, 289 Mich App 195 (2009).


going to have to live with “weeding out,” “active appreciation,” and “invasion.”

III. State of the Law? A Trio of Appellate Cases

A. Zerrener v. Zerrener

Fairly recently, the Supreme Court had three opportunities to engage in a sweeping policy

discussion and statute interpretation as Charlton did some 40 years ago. Its disinclination may

be telling.32

In Zerrener v. Zerrener33 Plaintiff maintained a successful law practice, in place ten years

prior to the parties’ marriage. Defendant worked as an assistant, and according to the opinion,

aborted a college education to work for plaintiff. Although not paid a salary, defendant “was

allowed to spend a significant amount of the law firm’s revenue ...”

The Court of Appeals concurred that the plaintiff’s business was separate property, and

concluded that the trial court “did not err in concluding that it should be excluded from the marital

estate.” It also agreed that defendant’s claim did not rise to the level of “invasion” pursuant to §23

or §401. Defendant had not met the burden of a finding substantial contribution to the

“acquisition, accumulation or improvement,” nor was there a finding of need not met with spousal

support.

Instead of affirming the trial court’s decision, or finding it had not “abused its discretion”

in the treatment of Defendant, or remand, this panel instead attempted to make new law.

It concluded, in equity, that defendant deserved something for her “personal effort,”

believing defendant had made “contributions,” both pecuniary and non-pecuniary, concluding

this spouse was “deserving of compensation.”

The panel analyzed other case law in the manner of compensating a spouse who assisted

in a “concerted family effort.”34 It held that, notwithstanding the business was plaintiff’s separate

property, and there was no appreciation of it during the marriage, and defendant did not prove had

anything to do with its acquisition, accumulation or improvement, or in need:

“…nonetheless, we are of the opinion that Defendant made significant

contributions, both pecuniary and non-pecuniary, entitling her to an

32 Actually, now for the fourth time. Henderson v. Henderson, COA 295765 2011, Lexus 1032 was a well-tried,

well-argued case involving the issues of Charlton, Hanaway and Reeves. The Supreme Court refused to hear the

well-articulated Court of Appeals reversal of a trial court decision. 33 Zerrener v. Zerrener, Court of Appeals Docket No. 219301, 2001. 34 Postema v. Postema, 189 Mich App 89 (1991); Krause v. Krause, 177 Mich App 184 (1989)


equitable claim for restitution rather than a claim for a portion or percentage

of the practice itself. In cases where one spouse has earned an advanced

degree during the marriage, compensation is awarded on equitable grounds

with the stated goal of attempting to financially return the non-student

spouse what that spouse contributed towards attainment of the degree.

Similarly, pursuant to MCL 552.401, when one spouse significantly assists

in the acquisition, improvement or accumulation of the other spouse’s

separate asset, the Court may consider the contribution as having a distinct

value of deserving of compensation…. Such an award of compensation is

premised upon the concept of restitution rather than possession by [the other

party] in the advanced degree [i.e., separate property] itself. The actual

value of the degree [separate property] is irrelevant.” [emphasis added.]

The Supreme Court reversed.35

In spite of Zerrener’s innovative approach, to affirm it would have made new law. Courts

are not the branch of government in business of making law. It held:

“We do not agree with the Court of Appeals that Defendant has an

equitable claim of restitution based on uncompensated services

performed for Plaintiff’s law firm. Plaintiff’s law firm was a

separate asset, not a marital asset, which did not appreciate in value

during the time of the parties’ marriage as required by MCL

552.401. Because the law firm was not a marital asset…cannot

justify Defendant’s claim to equitable restitution.”36

Mrs. Zerrener’s victory of compensation for her contributions was short lived.

B. Deyo v. Deyo

Deyo v. Deyo37 was also an appeal of a separate property decision. The trial court found

the marital estate to be some $700,000 plus defendant’s $2.3 million of inherited property.

Defendant appealed the ruling that separate property was improperly included in the marital estate.

Plaintiff appealed the rather modest alimony award of $200 per week. Two of the judges on the

panel affirmed, one dissented.

The inheritance was included in the estate upon the reasoning that plaintiff took care of

defendant’s ailing father and, therefore, “contributed” to his leaving the inherited estate to the

parties so that both could share in it. Presumably the gratefulness of the dying father-in-law

35 Zerrener, MSC 127273 (2006). 36 Even this Opinion had a dissent, Justice Elizabeth Weaver would not have “peremptorily” reversed. 37 Court of Appeals No. 245210 (May 25, 2004).


ensured, therefore, the two of them would benefit.

While citing Reeves with approval that a party’s separate property “may not be invaded,”

the panel’s majority nonetheless found under §401 that plaintiff “did” contribute to the acquisition,

improvement and accumulation of defendant’s inheritance and affirmed inclusion of all of the

inheritance in the marital estate. 38

In dissent, Judge David H. Sawyer noted the judiciary has power under statute for the

equitable distribution of marital property “only.” Neither the trial court, nor the Court of Appeals,

has the authority to do otherwise. By plain reading, as Justice Williams said in dissent in Charlton,

the “invasion” statutes could not be “so liberally construed” to reach this result.

However, Mrs. Deyo clearly made a contribution to, if nothing else the life of her father-

in-law, and her “contribution” was clearly entitled to reimbursement or compensation.

In its reversal, The Supreme Court ironically agreed with Judge Sawyer:

“Invasion is permitted only if the court specifically determines that

MCL 552.401 the non-owning spouse “contributed” to the

acquisition, accumulation and improvement of the separate property

or the other invasion statute 552.23 that they were unable to support

him or herself and there was “need.” [Emphasis added.]

It held that the evidence was “insufficient” to support the trial court’s “invasion.” Was the

Court signaling “invasion” and the apparent overlooking of the statutory word “may” have gone

too far? On remand, the Court was intimating that while plaintiff’s inheritance be returned to him,

he could expect the “need” statute §23 be met by a substantial improvement on the $200 a week

alimony order.

C. Maher v. Maher

If Zerrener and Deyo were rebukes of the Court of Appeals for making law, Maher v.

Maher was for making a conclusion of fact.

Maher v. Maher,39 dealt with the ‘appreciation of separate property after marriage’ issue.

The trial court ruled that the growth, post marriage of a premarital investment account (funded by

an employment discrimination settlement) was marital property, but the value of the account at the

time of marriage was defendant’s separate property. The trial court did not find either of the

38 A discussion of the continued use of the word “may” is in order. 39 Maher v. Maher; COA 287308 (September 29, 2010).


statutory “exceptions” applied to justify an “invasion” of the initial settlement funds. Both parties

appealed.

Plaintiff argued entitlement to “invade” defendant’s separate property because she

contributed to the “…accumulation…” of the property per §401, relying on Hanaway. The panel

found plaintiff did not contribute to the acquisition improvement or accumulation of the property,

and therefore, also in reliance on Hanaway, however cited for the proposition, was misplaced:

“From the record it appears that Smith Barney managed the account

and neither Plaintiff nor Defendant had to actively handle the

account.”

This appellate panel held the investment account, and its appreciation to be defendant’s

separate property. Neither “invasion” statute was applicable, nor the fact-sensitive proofs between

‘active’ and ‘passive’ appreciation favored inclusion in the marital estate, subject to division.

The Supreme Court reversed. It did not disagree with the panel’s ruling, but it disagreed

with its substituting itself as the fact finder, “concluding” the account was not sufficiently managed

to invoke it as “active.”

The remand required “full consideration of the issue.” The hair splitting of ‘active’ versus

‘passive’ is the province of the trial court, not the appellate court. Of course, after remand, nothing

will prevent either party from another appeal.

In summary, can all three reversals be read together as against a policy of expansion of the

marital estate? Could it be, as case law ebbs and flows naturally, that the pendulum swing from

Charlton has hit its apogee? Or, is the Supreme Court itself getting impatient with the plethora of

work and time the judiciary is spending on this?

As it turns out, Michigan is the only state with an equitable distribution, dual classification

model for divorce without a comprehensive statute,40 and prompting by our judiciary has fallen on

deaf ears in the legislative branch of government.

The Rubik’s cube of property division in divorce continues.

40 See discussion at Turner, Equitable Division of Property 3rd Ed. Thompson West 2005, 2013-14 Suppl.; Also,

“Statute does not define the term marital property, nor has any case presented a comprehensive definition, Raimi 15-

13, nor the term separate property,” 15-17.

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