Marital Property

At the Law Office of Nathan G. Frazier, we are experienced in the legal the intricacies of property partitions. There are many regulations and laws with regard to obtaining a just and efficient partition of marital property. We are happy to discuss all of your legal options in depth at our consultation.

Marital Property & Divisions

What is "marital property"?

Michigan is a "no fault" divorce state, not a community property state. This means that you don't have to prove that the other side is at fault, unfaithful, or violent in order to get a divorce. Fault can be considered by the judge when property is divided, however. Many judges may decide that an affair wasn't the cause of the breakdown of a marriage, but is merely a symptom that the marriage was already in trouble. That is not true of all judges, however. Everyone has a view about fault in divorce. It's often better for the parties to reach their own final settlement without going to trial. Even so, a spiteful spouse who feels wronged may hold out for a larger share of the assets or for an earlier date for division of assets like pensions.

In Michigan, property will usually be split 50-50. If fault is considered by the judge in dividing the property, however, the court can shift the division from 50-50 to 60-40 or some other percentage. Michigan judges don't always have the same views about division of property. In determining property issues, Michigan judges will normally consider the following:

  • Length of the marriage
  • Contributions of the parties to the marital estate
  • Age of the parties
  • Health of the parties
  • Life status of the parties
  • Necessities and circumstances of the parties
  • Earning abilities of the parties
  • Past relations and conduct of the parties
  • General principles of equity
  • Fault

Sometimes assets are sold and the net sale proceeds are distributed. In the alternative, sometimes the parties are able to negotiate and divide assets up without forcing a sale. Arguments about how the property is to be divided can force people into corners that they feel compelled to defend. This is why early four-way discussion between the parties and their lawyers is a good idea. Mediation, and more rarely binding arbitration, can help the parties reach a fair settlement. When the parties have minor children that they hope to co-parent for many years, it's a good idea to avoid as much conflict as possible in order to preserve a friendly, cooperative parenting relationship with an ex-spouse.

back to top

Reaching a Property Settlement through Mediation and/or Negotiation

Normally, the parties reach a settlement of all their property rights after negotiation. Trained mediators can be very helpful in assisting parties reach a settlement. If the parties cannot agree on the issues, then the judge will decide after the trial is concluded.

Property settlements are not modifiable once they have been put into writing and signed by the parties or placed on the record in open court, except under rare circumstances. The only grounds for setting aside or modifying a settlement are certain kinds of fraud, clerical error, mistake, or gross unfairness in the initial trial. Therefore, it is imperative that you understand and accept the settlement before you sign it and as it is stated on the record. Certain assets require special orders in addition to the judgment in order to get them divided. These include retirement or pension plans. Your attorney, upon request, will explain how qualified domestic relations order procedures will affect your rights. often outside experts are called upon to draft the orders required to divide pension plans.

If necessary, property settlements in judgments may be enforced by execution, garnishment, show cause proceedings, etc. Your divorce attorney can explain these procedures to you if necessary.

You may have additional questions concerning a premarital or cohabitation agreement.

back to top

Separate Property

In Michigan, the distribution of property in a divorce is controlled by statute. If a husband and wife cannot agree upon a property distribution, they’re going to have to accept the trial court's decisions. The first issue a trial court will address is a determination of what property is marital property to be divided between the parities, and what property is separate property that belongs to one of the spouses.

Generally speaking, the marital estate is divided between the parties, and each party takes away from the marriage that party's own separate estate with no invasion by the other party. No matter how long the parties lived together prior to marriage, the trial court's analysis must be limited only to the time the parties were married.

When a party has used separate property and “commingled it” with marital property, then it will be considered as marital property by the trial court. However, courts in Michigan may rule that if one of the spouses owned a house prior to the marriage, that party will keep the pre-marital equity that he or she owned, regardless of any later joint ownership that may have arisen during a re-financing. It’s only where it is clear that a spouse intended to give the premarital interest to the other party that a court should hold that it has become joint property.

Nevertheless, Michigan law allows the trial court to invade the separate assets of a party under two distinct exceptions: First, "if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party" and second, "if it appears from the evidence in the case that the party contributed to the acquisition, improvement, or accumulation of the property." Even if separate property of one party is awarded to the other spouse, the ultimate property division is to be fair and equitable under all of the circumstances of the case.

If you owned substantial property prior to your marriage, you should fully explore the extent to which the facts will support its award to you. An analysis of the other party’s arguments might suggest that you need to spend some time documenting transfers between retirement accounts, etc. to see whether you can trace your assets. This is a complex subject and should be fully addressed with your lawyer.

back to top