When it comes to a divorce, most of the time the parties (the people getting divorce) and counsel negotiate the division of the parties assets, debts, real estate and personal property with very little court involvement. This is called the property settlement or property division part of the case. In cases that really just involve property settlement the parties may only have to appear in front of the judge once with the assistance of a good attorney. Sometimes the parties are able to reach an agreement on how to do this between themselves with some guidance from the attorneys, then the attorneys prepare the appropriate documents to accurately reflect the agreements and make them legally binding. In many cases the parties are not able to reach an agreement between themselves and in those cases, the parties are typically able to reach an agreement with the assistance of their lawyers at mediation. A very small percent of cases, cannot be resolved by agreement and those cases end up in trial.
How Does a Judge Decide Who Gets What at Trial?
If a case goes to trial, the judge must follow the law when deciding a case, the judge cannot deviate from the law, to do so risks being overturned on Appeal. Property division is governed by precedent (the judge must follow previous court decisions) rather than statute (law enacted by the legislature). The case law states that the property division does not have to be equal and the judge does not have to divide the marital estate according to any mathematical formula. The trial court has to weigh each of the following factors when determining how to divide the property: (1) the length of the marriage, (2) the contributions the parties have made to the marital estate, (3) the ages of the parties, (4) the health of the parties, (5) the life situation of the parties, (6) the necessities and circumstances of the parties, (7) the parties earning abilities, (8) the parties' past relations and conduct and (9) general principles of equity (a "catch-all" provision that basically lets the judge consider anything else the judge deems relevant or important). The trial court must consider all of the relevant factors but it cannot assign disproportionate weight to any one factor.
Working With a Property Settlement Attorney in Oakland County, Michigan
When you work with a good divorce attorney, that lawyer will know the law, the system, the judges and often the other person's attorney. It is essential to have an attorney that practices only in the area of family law as there are many pitfalls for the inexperienced. Your lawyer will be able to guide you through the process and provide the appropriate level of help you need to get you through your situation. If you have any questions regarding these issues, please contact Cameron C. Goulding by phone at (248) 608-4123, email at [email protected] or through the website NorthOaklandMichiganDivorceLawyer.com.