Property Division

Divorce can be an ugly topic with many intricacies and emotional hardships. If you need help with a property division issue in Oakland County, contact one of Kronzek & Cronkright’s expert family law attorneys.  Many couples facing divorce become so involved in the emotionally turbulent aspects of divorce that the more crucial and practical parts easily fall through the cracks. One of the most critical aspects of divorce is the marital property division. While many people may believe that spousal support and property division are the same, they differ in many aspects. Our Oakland County Family Law team understands both the feelings that arise in divorce as well as its legal complexities. In our decades of experience practicing Family Law in Michigan, we have guided countless divorcing individuals through the challenging legal aspects of divorce and property division; helping them return a sense of normalcy to life. We have created this brief overview of property division and asset protection to help you understand what kinds of things Michigan Family Law courts consider when dividing property in divorce cases.

In Michigan, property that is divided in a divorce case is characterized in two ways: (1) separate property and (2) marital property. Separate property is the property that each spouse owned before the marriage. Marital property is the property that the couple acquired during the marriage. At one time, it was highly debatable when property became “marital” because many couples live together before they are married and acquire property during that period. However, it is now well established that marital property consists of all property acquired after the marriage begins and until separation papers or a petition for divorce is filed. This means that any property which is acquired during cohabitation but before the marriage will likely remain separate property, and not be subject to property division.

Separate Property

Generally, separate property remains separate after a divorce. Meaning each spouse takes with them what they owned prior to the marriage. However, there are two exceptions to this general rule. These exceptions allow a court to “invade” and open the separate estate for redistribution (1) where the other spouse shows additional need or (2) where the other spouse significantly contributed to the acquisition or improvement of the separate property. This means that although a spouse may have separate property (property that he or she owned before the marriage), that property can still be accessed by the courts to either assist a spouse with inadequate means of support or to compensate a spouse that assisted in creating or increasing the value of an asset. When it comes to asset protection and property division, you would do well to get guidance from a qualified family law attorney.

Courts have found that a spouse demonstrated additional need when the division of the marital estate was insufficient to accommodate the lifestyle that the spouse had been accustomed to. A spouse’s contribution to the acquisition or improvement of the separate property has been deemed significant where that spouse had taken on all of the household duties (cooking, cleaning, child rearing), thereby freeing the other to concentrate on the development of the separate property.

Also, separate property can become mixed property. In other words, separate property can be used or treated in a way that it loses its characteristic as separate property and must be considered marital property. There are generally two ways that separate property becomes mixed property: (1) the separate property is commingled with marital property to an extent that it can no longer be traced and (2) the separate property is used in a way that demonstrates an intention for it to be marital property.

Marital Property

There are various types of marital property, including pensions, professional licenses and degrees, stock options, and bonuses. In Michigan, marital property is subject to equitable distribution, meaning the court can make property division in a way that is fair under the circumstances. However, there is a presumption that the court’s division of the marital property will be roughly consistent across the board, and if the court departs from the presumption, it must state its reason for doing so on the record.

In determining the fair distribution of marital property, the court uses the following factors: (1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity. These factors are not weighed equally and some may be irrelevant in some cases, but no property division or distribution should be based solely on the analysis of one factor. In particular, the factor concerning the parties’ past relations and conduct (which in essence addresses fault) must not be weighed so heavily that the distribution of property becomes punitive in nature. While the court’s analysis of these factors may change based on the facts of each case, they can give you an idea of what courts consider when they divide marital property.

Courts have discretion in determining the value of the marital estate. The value can be based on the time of (1) separation, (2) filing, (3) trial, (4) judgment, or (5) any other date appropriate under the circumstances. The court generally makes this determination in a way that is conducive to the parties making prudent economic decisions and honest disclosures.

Helpful Considerations

When parties are contemplating a divorce or are involved in the divorce process, it is inherently important for both parties to know each party’s assets and liabilities. While it will be the attorney’s job to assist you in apportioning the property interests in a way that meets your needs, the attorney can only accomplish by knowing the property involved and interests at stake. This information will assist your divorce attorney in predicting what the other party may expect in a property division or what your request should be. It may also be helpful for you to contemplate your expectations so that during meetings with your attorney you can devise a strategy to meet those expectations or help you revise them if necessary.

Keep in mind that Michigan Family Law courts may request parties to seek the assistance of a court-appointed arbitrator or court-approved mediator. Therefore, it is helpful to understand what these third parties do and how they differ from each other. Both an arbitrator and a mediator are neutral third parties. An arbitrator will hear both sides of the divorce case and subsequently may render a binding decision. On the other hand, a mediator, who also listens to both sides of a divorce case, helps the parties to resolve their case on their own. Regarding property distribution, it is vital to understand that an arbitrator can make a decision for the parties, while a mediator can only assist them in coming to a conclusion.

How We Can Help With Property Division

Divorce cases of all sorts are difficult. They involve many difficult decisions and considerations. Our Oakland County Family Law Attorneys have ample experience in assisting in divorce issues, such as property division and asset protection. We are experienced, well-versed in Michigan Family Law, and are passionate about assisting our clients. If you are facing a property division issue, wondering about asset protection, need help with any other family law matter, or if you have questions about your case, contact us anytime.

We are available for phone consultations and meetings during and after business hours. For emergencies, we can be reached 24/7 at the phone number listed below. Our office is conveniently located at 30300 Northwestern Highway. That’s located in the Gem Building near 13 Mile and Northwestern. Office hours are by appointment.

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CALL (248) 479-6200