By John J. Schrot, Jr.

Be careful with what you ask for. An Illinois man who was awarded a $20 million wrongful-conviction settlement has to divide same with the woman he met and married while in prison but is now divorcing. He cannot exclude this fortune from the marital estate, on a claim that it is his separate property, and therefore not subject to division in the divorce.

The exonerated inmate spent 20 years incarcerated in a 1992 child-murder case after having been tried and convicted three times. His third conviction was reversed by an Appeals Court, as he was cleared by DNA evidence and freed. The DNA evidence excluded him and linked another suspect to the rape and murder of an 11 year old girl.

The exonerated husband’s conviction was overturned in 2011. He went on to sue various law enforcement agencies, and in 2015 settled those claims for $20 million dollars. In the interim, he filed for divorce in May, 2014, from a woman that he met in 1998 after he was convicted in a second jury trial. The woman had taken an interest in and volunteered to work on the man’s case, but thereafter developed a personal relationship. The parties were married on October 31, 2000, while he was still serving a life sentence. The divorce action is still pending.

The wife therein claims that she has a right to a portion of the settlement monies. She maintains she was a loving wife who visited him hundreds of times and provided him with invaluable emotional support during the many years that no one believed in him. He maintains that the injuries he suffered began before the marriage, continued through the marriage, and will continue for the rest of his life. He claims he was tortured into confessing to a crime he didn’t commit. Nevertheless, the Illinois Appeals Court ruled that the inmate “did not have a property interest in his lawsuit (or stated differently no lawsuit existed) until the appellate court vacated his conviction in 2011.” “Because the lawsuit accrued in 2011, during the marriage, it is marital property subject to division.”

Michigan Courts“may divide all property that came to either party by reason of the marriage…” The fruits of a spouse’s efforts during the marriage have always been classified as marital property. Furthermore, a spouse’s otherwise separate property “could be awarded as part of the property to be divided … (if the other spouse) had contributed to the acquisition, improvement or accumulation of such property or if an award otherwise was insufficient to maintain either party.”

In addition, where a spouse actively manages the separate property during the marriage, the appreciation in the value of that separate property is part of the marital estate. Even if an asset is entirely separate property that has never grown by active (versus passive) appreciation, been commingled, or the result of the other spouse contributing to the acquisition, improvement or accumulation of such property, a court may still invade that separate asset where there is insufficiency of wealth without regard to the source of the property.

Equity is the rule of law in the division of a marital estate. Michigan has a “dual classification” model of property division that recognizes separate and marital property. Michigan is the only state with an equitable division, dual classification model for divorce without a comprehensive statute that defines the terms “marital property” or “separate property”. The foregoing sets forth the substance of the present Michigan statutes. Accordingly, it is often difficult to determine what is and what is not marital property. This reconciliation of case law and more than 150 year old statutes has been left to the court on a case-by-case basis. Therefore, the necessity to continue to interpret each case, with an appreciation for sensitivity to certain facts, promotes litigation, discourages settlement, and increases costs for both the litigants and the court.

Property division in divorce in Michigan, and elsewhere, is complex. A divorcing party with any measurable property needs an experienced and knowledgeable advocate. Should you, a family member or friend be in a position of contemplating and/or defending a divorce, one will need an energetic, expert and experienced law firm such as Berry Moorman. Berry Moorman is a firm with expertise in a wide-variety of legal practice areas so that they compliment one another and provide the ability to protect your personal and/or business assets. Our team excels at developing strategies to protect you and your family, whatever the issue. For more information on our family, domestic matters, settlements and divorce services, please call our Family Law, Settlement and Divorce Services group at (248) 645-9680.