Property Division 101 in a Michigan Divorce
Michigan is a no-fault divorce state, which means that divorce can be granted without prejudice. One spouse does not have to prove that the other has done something wrong. Even if the other spouse objects to the divorce, it will be granted, as long as the filing spouse cites acceptable grounds for divorce, such as breakdown in the marital relationship with no likelihood that the marriage can be preserved. This is often chalked up to “irreconcilable differences”.
During the course of the divorce process, the couple will have to split up marital property, and this is known as property division. Even though there is no fault necessary to proceed with divorce, fault can play a role in division of property. How is property divided in a Michigan divorce and what can you expect to get? Here are the basics.
Fair and Equitable
In Michigan, the courts try to keep property division fair and equitable as much as possible. When deciding who gets what, it’s best if the divorcing couple can come to an amicable agreement on their own and present it to the court. If it is deemed fair and equitable, the court is likely to accept it.
If spouses are contentious, however, the court will have to make its own judgment on how to separate property between the divorcing parties, and this may leave both parties unhappy. How does the court determine division of property?
There are several factors taken into consideration. First, the court determines what counts as marital property. For example, a partner that enters the relationship with a family trust fund will likely retain it as separate property. Separate property is generally owned by one party prior to the marriage or it is inherited by or gifted to only one spouse before or during the marriage.
Other factors affecting the division of property include the length of the marriage, what each spouse contributed to the marriage, the earning potential of each party, the necessities and circumstances of each spouse, past conduct by one or both parties (i.e. fault in causing the divorce, such as infidelity), and the relative equity and fairness of the property division in general, among other things.
The Role of Fault
Fault may not account for a lot in the divorce, but it is definitely taken into consideration. Courts are more concerned with making sure the division of property is fair and equitable, but if one spouse reasonably expected to remain in the marriage, with access to all marital assets (not just half), and the other spouse made that impossible through infidelity, fraud, abuse, or other behavior, the court may elect to penalize the spouse who has “more fault” in the divorce.
In Michigan, fault can sway property division no more than 9% in the favor of one party over another. A Court of Appeals has ruled that a 60/40 split is too much, which sets a precedent that limits the role fault can play in property division.
If you’re involved in a divorce and you need help determining appropriate division of property, contact the qualified and experienced professionals at The Gucciardo Law Firm today at 248-723-5190.
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