Wednesday, November 17, 2010

Overreaching, Post-Divorce Style: Michael Douglas' Ex Demonstrates "Greed is Good"

Michael Douglas divorced his ex-wife, Diandra, in California back at the turn of the century.  She reportedly received $45 million as well as rights to half Douglas' earnings from the "spinoffs" of his completed movie work.

Demonstrating the chief principle from Douglas' hit movie Wall Street, that "greed is good", Diandra filed suit in Manhattan last summer seeking half the actor's royalties from the reprise of Douglas' character, Gordon Geckko. A Manhattan Supreme Court Judge dismissed the case on procedural grounds, finding that venue was improperly laid.

The judge got it right.  Diandra's rights to Douglas' earnings would come from the terms of their divorce decree rather than a separate cause of action filed in another state.

Here at the Law Blogger, we have to wonder why Diandre's attorney advised her to file in Gotham rather than California.  The reason stated in the pleadings was that both parties currently reside in New York.

Procedural defects aside, Douglas' lawyer asserted that Diandre was not entitled to any of Douglas' earnings from his new movie to the extent they are derived from a "sequel" to the original movie and thus does not qualify as a "spinoff", as referenced in the divorce judgment.

Sequel vs Spinoff?  Sounds like Diandre's lawyers have twice let her down...

Thursday, November 11, 2010

Macomb Woman Obtains Divorce from the Grave

In a recent case originating from Macomb County, the Michigan Supreme Court held that a woman, scorned by her long-time but absentee husband, could effectively divorce him from her grave. The case, Tkachik v Mandeville, reversed the Court of Appeals' decision that ruled she could not do so.

In this case, the wife became ill and died of breast cancer after nearly three decades of marriage. Although the long-married couple was estranged at the time of wife’s death, they never filed for divorce or legal separation (known as separate maintenance in Michigan).

Because her husband had abandoned her during the 18-months she battled breast cancer, the wife executed a trust and will which left him nothing and appointed her sister as personal representative of her estate. At the time she died in 2002, the wife had spent years maintaining the “marital home” as well as a vacation property near West Branch. She paid all the property-related expenses without contribution from her husband.

Six-months after his wife’s death, the husband filed a petition in the Macomb Probate Court to set aside his deceased wife’s will and trust and to remove the cloud his wife placed on their marital properties. In the resulting probate court battle, the wife’s sister, relying almost extensively on out-of-state caselaw, asserted equitable contribution and abandonment theories, arguing that allowing husband to posthumously reap the benefits of his deceased spouse’s labors amounted to an unjust enrichment.

The sister was granted summary disposition and the Husband's challenge to his deceased wife's will and estate plan was thrown out of the Macomb County Probate Court.  In doing so, the probate court made a finding that Husband should not be considered a "surviving spouse" because he had abandoned his wife for more than a year.

Next, the sister went on the attack, suing her former brother-in-law on behalf of her sister's estate and seeking a determination that the probate court's finding (i.e. that Husband was not a "surviving spouse") destroyed the "tenancy by the entireties"; the mode of ownership of the former marital home.

When that didn't work, the sister amended her complaint to seek contribution from the Husband for Wife's sole maintenance of the properties.

The Court of Appeals was not persuaded by the sister's legal arguments in equity, deciding that a married person cannot execute an estate plan that effectively acts as a “posthumous divorce”. The appellate court’s ruling emphasized the sanctity of marital property intact and declined to “invent a claim” from which a decedent spouse can reach her surviving husband from her grave.

In reversing the intermediate appellate court, the Supreme Court extended the doctrine of contribution to find Husband liable for his portion of the maintenance of the property.  The high court was persuaded to fashion an equitable remedy where Sister had no remedy at law.

Essentially, the Supreme Court found that Husband had been unjustly enriched by reaping the benefits of his wife's maintenance and improvements to the properties, while contributing nothing.

The case is illustrative of how our court system processes a case.  The initial decision is never final.  In this case, the sister's case went all the way to the Michigan Supreme Court; went back down to the Court of Appeals for an opinion after that court passed on the case; then went back up to the Supremes.

After its epic journey, this case is binding common law and will determine the result for other subsequent and similar cases.  Lesson: if your spouse abandons you with ongoing obligations, he or she may be liable, either in family or probate court, for past maintenance and the cost of  improvements on an equitable contribution theory.   

Wednesday, November 3, 2010

Cheating Spouse App Gets Pulled by Droid

A controversial new application for Motorola's popular Droid phone has apparently been pulled before it had a chance to hit the cell phone application market-place.

The idea behind the "Secret SMS Replicator" application is to forward text messages from the target phone to a designated phone.  What's more, the application on the target phone is invisible and cannot be detected.

Similar applications have failed Apple's application store approval process.  In the case of the SMS Replicator, Google said the covert application violates the "Android Market Content Policy."

Just because this application did not make it to market does not mean it won't be applied.  The technology is available to those who do not mind installing rogue applications.

In Michigan, it is illegal to download the emails of another person without permission by using spyware and keystroke programs.  These products, however, remain on the market.

Perhaps the best policy if you are in a marriage or a committed relationship is to stay faithful.  On the other hand, if you believe your spouse or significant other has strayed, or is thinking of doing so, it may be time to move on through separation or divorce.

Often, a cuckholded spouse feels the need to acquire rock-solid proof of infidelity. Sometimes, this is sound pre-divorce strategy. Getting the goods on your significant other, however, should never come via breaking the law.

Good luck out there!