Marital Property

Every divorce involves dividing up the property you and your spouse accumulated while you were married. Even if you have been separated for years, your Judgment of Divorce must include a division of marital property. Understanding what that is, and how the courts decide to make the split, will help you come to an equitable division of marital property.

Getting a fair property distribution often requires the help of an experienced divorce attorney. Schedule a consultation to discuss your specific situation and begin the divorce process for you and your family.

What is Marital Property?

With a few exceptions, marital property includes everything either spouse earned or acquired from the day of your marriage to the day your Judgment of Divorce is entered. It includes:

  • Income from either spouses’ jobs during the marriage
  • Homes and real property
  • Vehicles
  • Furniture and personal property
  • Bank accounts
  • Retirement accounts
  • Investments
  • Mortgages
  • Debts and credit cards

It doesn’t matter whose name is on the title of these documents. A Michigan court can sometimes award property titled in one spouse’s name to the other spouse, or order one spouse to pay off debts in the other spouse’s name. Instead, what matters is when the asset or debt was acquired, and whether it was used for a marital purpose.

What is Separate Property?

Separate property is the exception to the general rule regarding marital property. It is property that is awarded solely to the spouse who owns it, without any claim by the other spouse. Separate property is generally:

  • Premarital property owned by one spouse before the marriage (provided it wasn’t commingled after the marriage)
  • Gifts or inheritance received by one party during the marriage
  • Property purchased during the marriage using separate property funds

However, separate property can sometimes become marital property if it is “commingled.” Most often, this involves gifts or inheritance deposited into the same account with joint assets or the couple lives together in a separate property home. Questions around separate property and commingling are complicated. If you believe you are entitled to keep property in your name separate from the divorce, be sure to talk to your divorce attorney about where that property came from, and how you have maintained it during the marriage.

How Do You Figure Out What Your Property is Worth?

Once it is decided what counts as marital property, whether by the parties or a judge, the next step is assigning a value to each asset and liability. Sometimes this is as easy as looking at the most recent statement from a bank account, 401(k) or credit card balance. However, other types of property can be harder to put a value on. You may need to hire an expert to establish the value of:

  • The marital home
  • Other real property or time shares
  • A family business or shares in a company
  • Pensions
  • Collectible items
  • Vehicles

Your divorce attorney can help you identify each asset, gather documents to establish its value, and decide whether to hire an expert to give an opinion and/or testify about property valuation in court.

Michigan Factors for Division of Marital Property

Once the values are set, the next step is to decide how to divide up the parties’ property. Ideally the parties will come to an agreement on their own with the help of their attorneys and/or mediation, otherwise the court will decide via a trial. Michigan is an equitable distribution state. That means your division doesn’t have to be exactly 50/50. Most of the time, you will start with an equal division of property. However, there are several factors that can affect how those lines are drawn:

  • How long you were married,
  • Contributions of the parties to the marital estate (including as a homemaker or stay-at-home parent),
  • The parties’ ages,
  • Both parties’ health
  • Life status of the parties,
  • Necessities and circumstances of the parties,
  • Each party’s ability to work and earn money
  • Past relations and conduct of the parties, and
  • General principles of equity.

Will a Michigan Judge Consider Fault in Dividing Property?

Michigan is a no-fault divorce state. That means you do not have to prove that your spouse did anything wrong to get a divorce. However, sometimes fault is a factor for the breakdown of the marriage. Michigan judges are allowed to consider fault as part of the “past relations and conduct of the parties.” If you and your divorce attorney can show that your spouse’s bad behavior cost you and the family money, you may be compensated for that in the marital property division. However, this is a very high burden of proof and seldom granted but for exceptional circumstances.

Hiring an Attorney for Division of Marital Property

If you are trying to resolve your marriage quickly, easily, or privately, you may not want to lay out all your finances in open court. Most couples resolve their divorces without a trial, most often through mediation or attorney-assisted negotiation. If you and your spouse agree on who should keep which property, your attorney can prepare a marital property agreement that turns that agreement into a binding contract. However, setting aside a settlement agreement isn’t easy, so be certain you speak to your lawyer about any proposed settlement before you sign the agreement.

Getting a fair property distribution often requires the help of an experienced divorce attorney. Schedule a consultation to discuss your specific situation and begin the divorce process for you and your family.