Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  May 25, 2016                                                                       Robert P. Young, Jr.,
                                                                                                Chief Justice

  150891                                                                              Stephen J. Markman
                                                                                           Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
  EARL H. ALLARD, JR.,                                                               Richard H. Bernstein
            Plaintiff-Appellant,                                                           Joan L. Larsen,
                                                                                                     Justices
  v                                                        SC: 150891
                                                           COA: 308194
                                                           Wayne CC: 10-110358-DM
  CHRISTINE A. ALLARD,
             Defendant-Appellee.
  _________________________________________/

          On order of the Court, leave to appeal having been granted, and the briefs and oral
  arguments of the parties having been considered by the Court, we AFFIRM in part,
  VACATE in part, and REVERSE in part the December 18, 2014 judgment of the Court
  of Appeals. The parties’ antenuptial agreement provided, among other things, that
  certain property acquired during the marriage was to remain the sole and separate
  property of each party (i.e., part of the party’s separate estate), including “[a]ny property
  acquired in either party’s individual capacity or name during the marriage[.]” Despite the
  antenuptial agreement, the defendant sought to invade the plaintiff’s separate estate
  pursuant to MCL 552.23(1) and MCL 552.401. The Court of Appeals held that MCL
  552.23(1) and MCL 552.401 do not “allow a party to invade the other spouse’s separate
  estate contrary to the terms of a valid antenuptial agreement.” Allard v Allard, 308 Mich
  App 536, 558 (2014). We VACATE the Court of Appeals’ analysis of this issue. The
  parties’ antenuptial agreement rendered much of the property at issue part of the
  plaintiff’s separate estate. If the antenuptial agreement did nothing more than divide the
  property between the marital estate and the parties’ separate estates, the trial court could
  exercise its discretion under MCL 552.23(1) and MCL 552.401 to invade the plaintiff’s
  separate estate. However, the property settlement in the antenuptial agreement was to be
  “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 . . . , 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 Court of Appeals did not address whether this statement
  waived the defendant’s ability to seek invasion of the plaintiff’s separate estate under
  MCL 552.23(1) and MCL 552.401. Therefore, we REMAND this case to the Court of
  Appeals for it to consider: (1) whether parties may waive the trial court’s discretion
                                                                                                               2

under MCL 552.23(1) and MCL 552.401 through an antenuptial agreement, see, e.g.,
Staple v Staple, 241 Mich App 562 (2000), but see, e.g., Omne Financial, Inc v Shacks,
Inc, 460 Mich 305 (1999), and (2) if so, whether the parties validly waived MCL
552.23(1) and MCL 552.401 in this case.

        Moreover, the Court of Appeals erred when it held “to the extent any real property
or other assets were acquired during the course of the marriage by the various [limited
liability companies] created during the marriage, we find that their disposition in this
divorce action is not governed by the antenuptial agreement.” Allard, 308 Mich App at
563-564. A limited liability company member, such as the plaintiff, “has no interest in
specific limited liability company property.” MCL 450.4504(2). But, the plaintiff’s
membership interest is personal property. MCL 450.4504(1). It is undisputed that all the
limited liability companies at issue were created by and titled in the plaintiff’s name only.
As a result, he has a 100% membership interest in all relevant limited liability companies.
And, under the antenuptial agreement, that membership is property acquired in the
plaintiff’s name during the marriage, thereby making it his “sole and separate property.”
Accordingly, the Court of Appeals erred by concluding otherwise, and we REVERSE
those parts of the Court of Appeals opinion inconsistent with this order.

       Finally, we AFFIRM the Court of Appeals’ conclusion that “the antenuptial
agreement does not treat the income earned by the parties during the marriage as separate
property.” Allard, 308 Mich App at 564. However, we VACATE those parts of the
Court of Appeals opinion addressing what income may be treated as marital income. As
the Court of Appeals recognized, “[t]he trial court made no findings concerning the
extent of marital income earned by the parties, and thus remand is required for further
development of the record on this question.” Id. We leave it to the trial court to fully
address this issue on remand from the Court of Appeals.

       We do not retain jurisdiction.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 25, 2016
        t0518
                                                                             Clerk
