Dedicated Detroit Property Division Lawyers
One of the most contentious issues in a divorce can be the division of property. Many people have misconceptions about how property division works. In this article, we’ll discuss what you need to know about property division laws in Michigan and the process of determining who gets what. To learn more, contact the family law attorneys at Sumner & Associates, P.C. today.
Should You Involve the Court?
Many couples choose not to have the courts decide who gets what property. Why not? The answer is simple. Anything that comes before the court is a matter of public record.
In instances where the couple cannot work out an equitable arrangement together, their assets, holdings, property, collectibles and just about anything else that the court considers “marital property” becomes a matter of public record. That being said, there are some transactions, like real estate, that are a matter of public record anyway.
Determining what precisely you want the court’s involvement to be is a question that you will have to settle with your spouse. Your attorney can help guide you through this process, but involving the courts in property division comes at a cost. For that reason, most divorcing couples arrive at a settlement of all their property rights after negotiation.
What Happens When the Parties Cannot Reach a Settlement?
If both spouses cannot reach a settlement, the court will decide the matter after the trial is over. Again, you are advised that you must be absolutely sure that you understand and accept the settlement as written or placed on the record in open court. This is because you cannot modify property settlements, except in cases of:
- clerical error, or
- gross unfairness in the initial trial.
If your property includes retirement or pension plans, your property division attorney can explain your rights under the qualified domestic relations order procedures.
Property settlements in judgments may be enforced by execution, garnishment, show cause proceedings, etc. Your property division attorney will explain these procedures to you upon request.
What Is Considered “Marital” Property?
The first question that must be answered is: What constitutes the property of each individual spouse and what constitutes “marital property”? Simply defined, marital property is any property that was acquired during the marriage. The only exception to this rule is property that was part of an inheritance.
All other property — including retirement accounts — is up for grabs. It doesn’t matter which spouse earns the asset. It is still marital property under the law. Thus, it can still be divided in the divorce.
How Does the State of Michigan Divide Property in a Divorce?
Each state has its own approach to handling divorces. Michigan is an “equitable distribution” state. That means that the property is divided fairly between both parties. That does not necessarily mean that the property is divided evenly. It will depend on the circumstances of both spouses.
In determining property issues, the court will usually consider the following:
Length of the marriage
The length of a marriage figures heavily in property distribution since a longer marriage has more time to accumulate marital property. In most divorces, property that was brought to the marriage by one or the other party may still be considered their own property. The longer the marriage goes on for, the more marital property there will be.
Contributions of the parties to the marital estate
In cases where one spouse is the “breadwinner”, while the other spouse sacrificed their career to stay home and raise the children, the spouse that stayed home with the children contributed less to the marital estate but also has less earning power than the breadwinner. The court will factor that into the equation when there is a major imbalance in the spouse’s earning power. In cases where both parties have equal earning power, property will be divided in accord with who acquired it.
Age of the parties
The age of the parties is a factor in employability. The courts will consider whether or not one spouse is likely to be able to retain gainful employment when the other spouse earns most of the income.
Health of the parties
Health is also a major factor in employability. If one spouse is sick, has a mental illness, or otherwise cannot work, the court will take that into account when distributing property.
Life status of the parties
The court will consider the economic prospects of both parties. If one has a substantially higher earning power or requires further training for their career, the court will consider this in the property distribution.
Necessities and circumstances of the parties
The court will take into account the necessities of both spouses. This includes the raising of children and the standard of living of one spouse who may not have had the same earning power as the other. It also includes things like going back to college and pursuing further training if that spouse wants to become financially independent or begin their own career.
Earning abilities of the parties
Earning ability is perhaps the most significant factor in equitable distribution and will inform all the other above-listed factors.
Past relations and conduct of the parties
While Michigan is a no-fault state for divorces, that doesn’t mean that if one spouse was unfaithful or abusive to the other spouse the court won’t punish them. One way to penalize the spouse is by favoring the other in the distribution of property.
General principles of equity
Equity generally favors one spouse who has significantly less earning power than the other.
Generally, the property of the marriage is divided 50-50
If both spouses have similar earning power, the court will usually simply divide the property 50-50.
Property Division and Alimony
One more factor that can affect property division is alimony. You can pay alimony either as a lump sum or recurring indefinite payments. One spouse can use alimony as a bargaining chip to protect their interest in certain business ventures, assets, or other property acquired during the marriage.
Typically, couples are able to reach an agreement and mediate the matter of property division themselves. When the court has to step in, it mainly concerns itself with leaving both spouses in a position to financially support themselves or earn the means to do so on their own.
What About Debts?
While debts may seem like the opposite of property, the court nonetheless treats them as property. The court will also find an equitable means of dividing them. In cases where couples cannot come to a satisfactory arrangement themselves, they can leave it up to the court to divide them. When both spouses have roughly equal earning power, marital debts will be divided 50-50. In cases where they don’t, the court will have to apply the same standards of equity it employs to divide property.
Talk to a Detroit Divorce Attorney for Advice on Property Division
Our aggressive advocacy, legal advice, and representation may ease many of the stresses that are placed on your family during these times. It is essential that you have competent legal representation from the onset of your case through litigation. The experienced Detroit property division lawyers at Sumner & Associates, P.C. are ready to help you get the property that is rightfully yours in a divorce.