Your family is the most important factor in a divorce.
But focusing on the importance of the well-being of your children and their care can take time from many of the other things that are affected in a divorce. ADAM offers a comprehensive defense of your property and assets during litigation or negotiation of property division. We can help you define what property is considered marital by law and what may qualify as your separate property. Depending on the facts of the case, we can also help you identify some property that you may not be required to divide with your spouse.
Property Division in Divorce and Legal Separation Cases
When it comes to dividing your assets in a divorce, Michigan is what is known as a dual property state. This means that in Michigan divorce law there are two kinds of property: “separate” and “marital.”
Separate property is typically any property owned before the marriage, received by a party as a gift or inheritance during the marriage, or assets received after separation or filing for divorce. Proceeds from a lawsuit for pain and suffering are typically considered the separate property assets or appreciation traceable to any of these items may also be considered that party’s separate property. For instance, if you sold your pre-marital home and the proceeds are in a bank account in your individual name, that bank account is considered your separate property as well. Separate property is normally awarded to its owner, so long as the requirements are met under Michigan law. However, separate property can become marital property if it is commingled, or mixed together, with marital property. Separate property which has been commingled may lose its separate character and divided as marital property in a divorce or separation.
The other type of property to be addressed in a divorce case is marital property. Marital property is any property accumulated between the date of marriage and the date of a divorce. Marital property is generally subject to equitable division between the parties. This means that marital property will normally be divided according to what the court believes is equitable, or fair. Although equitable normally means the property is equally divided, there are exceptions to that rule. A court must clearly explain its reasons if it decides to deviate from the “roughly equal” guideline and do something else.
There are numerous factors that courts consider when dividing property. The most common factors include the source of the property, or where it came from, as well as who contributed toward obtaining the property. Other factors include the duration of your marriage, the needs of the two of you and the needs of the children, and also the incomes or earning power of the two of you in a divorce. The court can also consider the cause of the divorce, or fault, as a factor in determining how to divide marital property. This is not be confused with the concept of “no fault” divorce, which simply means that a party in Michigan does not need to provide a reason in order to be granted a divorce. The concept of “fault” in property division, on the other hand, means that a party who has engaged in misconduct of some sort (such as adultery, gambling, domestic violence, etc.) that leads to the breakdown in the marriage may be awarded less than half of the marital assets.
How marital property and premarital property are considered in a short term marriage can be very different from a long term marriage. In a short term marriage the goal is generally to try to put you and your spouse back where you were, as much as possible, but of course that is often not possible.
Property that is divisible in a divorce or separation case can include real estate, personal property such as furniture, animals, vehicles, bank accounts and investments, retirement accounts including pensions, annuities or retirement plans, and other accounts both vested and unvested, and businesses owned by one of the spouses.
It’s possible to make agreements regarding property settlement prior to the marriage in the form of a prenuptial agreement. If properly drafted and negotiated, these agreements are binding contracts and are enforceable. If you and your wife signed a prenuptial agreement, you will want to review this document with your divorce attorney while getting advice regarding divorce and separation.
Most divorce and separation cases are settled, so it is important to get good advice from a knowledgeable attorney early on in the process.
We also handle issues related to existing property settlements. Often the discovery of new information or assets can mean the need to re-assess property settlement or even re-open your case. Call ADAM today, (248) 356-ADAM (2326).