Divorce; Division of the marital estate; Marital property versus separate property; Cunningham v Cunningham; Portions of a party’s pensions earned before the marriage; Double dipping; Loutts v Loutts; Fault; McDougal v McDougal; Distinguishing Sands v Sands; Spousal support; Woodington v Shokoohi; Whether a party should have been awarded permanent support; Judgment of divorce (JOD)

Because a portion of the JOD erroneously held that defendant-ex-wife was entitled to 50% of plaintiff-ex-husband’s entire pensions, the court vacated that part of the JOD and remanded as to this issue. It rejected his other challenges to the property division and defendant’s claim that the trial court abused its discretion in failing to award her permanent spousal support. The parties were married 29 years. Defendant receives Social Security disability benefits. Among other things, the JOD divided plaintiff’s pensions equally and required him to pay defendant $425 in monthly spousal support until plaintiff is 67. He asserted the trial court erred as to his pensions “because (1) his entire police pension was earned before the marriage; (2) a portion of the firefighter pension was earned before the marriage; and (3)” the trial court did not explain why it would be appropriate to invade his separate assets under MCL 552.23(1) or 552.401. The court found that he was correct. It also appeared “the trial court acknowledged at least a portion of the pensions were plaintiff’s separate property.” In an opinion and order it “held: ‘The marital portion of the parties’ pension and retirement accounts shall be divided equally using the date of marriage through the date of filing of the Complaint as the division date.’” Further, another order contained identical language. But in the JOD, it held that defendant was “entitled to premarital portions of the pensions.” As to his other property division challenges, the court rejected plaintiff’s argument that “the property award and the status quo order, taken together, constitute an impermissible ‘double dip’ that results in an inequitable outcome.” And while “defendant’s conduct was far from perfect during the proceedings, ‘fault is an element in the search for an equitable division—it is not a punitive basis for an inequitable division.’” The court concluded the “trial court did not abuse its discretion by failing to award [her] less property on the basis of her conduct during the” proceedings. As to her cross-appeal, it held that the “trial court’s findings of fact were not clearly erroneous and its award of spousal support was just and reasonable under the circumstances. While defendant complains it is likely the parties’ incomes will not be equalized after” spousal support ends, due to a discrepancy in their benefits, it was “clear the trial court balanced [their] incomes and needs so that neither would be impoverished.” Affirmed in part, vacated in part, and remanded.