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Allard v. Allard
Court of Appeals of Michigan
January 31, 2017
EARL H. ALLARD, JR., Plaintiff-Appellee,
CHRISTINE A. ALLARD, Defendant-Appellant.
Circuit Court Family Division LC No. 10-110358-DM.
Before: M.J. Kelly, P.J., and Wilder and Fort Hood, JJ.
matter returns to us on remand from our Supreme Court.
Allard v Allard, 499 Mich. 932 (2016) (Allard
II). We have been instructed to consider two issues on
remand: "(1) whether parties may waive the trial
court's discretion under MCL 552.23(1) and MCL 552.401
through an antenuptial agreement, " and "(2) if so,
whether the parties validly waived MCL 552.23(1) and MCL
552.401 in this case." Id. We conclude that
parties cannot, by antenuptial agreement, deprive a trial
court of its equitable discretion under MCL 552.23(1) and MCL
552.401. Hence, we vacate in part and remand for further
proceedings consistent with this opinion.
pertinent facts on remand remain nearly identical to those
set forth in our prior opinion:
The parties signed an antenuptial agreement on September 9,
1993, two days before their wedding on September 11, 1993.
This case primarily deals with the validity and enforcement
of that antenuptial agreement.
* * *
The pertinent sections of the signed antenuptial agreement
provide as follows:
4. Each party shall during his or her lifetime keep and
retain sole ownership, control, and enjoyment of all real,
personal, intangible, or mixed property now owned, free and
clear of any claim by the other party. However, provided that
nothing herein contained shall be construed to prohibit the
parties from at any time creating interests in real estate as
tenants by the entireties or in personal property as joint
tenants with rights of survivorship and to the extent that
said interest is created, it shall, in the event of divorce,
be divided equally between the parties. At the death of the
first of the parties hereto, any property held by the parties
as such tenants by the entireties or joint tenants with
rights of survivorship shall pass to the surviving party.
5. In the event that the marriage . . . terminate[s] as a
result of divorce, then, in full satisfaction, settlement,
and discharge of any and all rights or claims of alimony,
support, property division, or other rights or claims of any
kind, nature, or description incident to marriage and divorce
(including any right to payment of legal fees incident to a
divorce), under the present or future statutes and laws of
common law of the state of Michigan or any other jurisdiction
(all of which are hereby waived and released), the parties
agree that all property acquired after the marriage between
the parties shall be divided between the parties with each
party receiving 50 percent of the said property. However,
notwithstanding the above, the following property acquired
after the marriage will remain the sole and separate property
of the party acquiring the property and/or named on the
a. As provided in paragraphs Two and Three of this
antenuptial agreement, any increase in the value of any
property, rents, profits, or dividends arising from property
previously owned by either party shall remain the sole and
separate property of that party.
b. Any property acquired in either party's individual
capacity or name during the marriage, including any
contributions to retirement plans (including but not limited
to IRAs, 401(k) plans, SEP IRAs, IRA rollovers, and pension
plans), shall remain the sole and separate property of the
party named on the account or the party who acquired the
property in his or her individual capacity or name.
* * *
8. Each party shall, without compensation, join as grantor in
any and all conveyances of property made by the other party
or by his or her heirs, devises, or personal representatives,
thereby relinquishing all claim to the property so conveyed,
including without limitation any dower or homestead rights,
and each party shall further, upon the other's request,
take any and all steps and execute, acknowledge, and deliver
to the other party any and all further instruments necessary
or expedient to effectuate the purpose and intent of this
* * *
10. Each party acknowledges that the other party has advised
him or her of the other party's means, resources, income,
and the nature and extent of the other party's properties
and holdings (including, but not limited to, the financial
information set forth in exhibit A attached hereto and
incorporated herein by reference) and that there is a
likelihood for substantial appreciation of those assets
subsequent to the marriage of the parties.
* * *
The parties were married on September 11, 1993. During the
course of the marriage, the parties held a joint checking
account with Private Bank, which was closed in November 2010.
There were no other jointly held accounts. Defendant worked
at two different advertising agencies during the first
several years of the marriage. At the end of her employment,
she earned approximately $30, 000 per year. In 1999, after
she became pregnant with the couple's second child,
defendant stopped working and did not seek further
Plaintiff received numerous cash gifts from his parents
during the marriage, often totaling $20, 000 per year.
Plaintiff also testified to having received loans from his
father during the course of the marriage, and claims that he
used those funds to acquire some of the real estate he
purchased during the marriage. Plaintiff also formed six
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