Q: How is property divided in a divorce?

If you are confronted with the possibility of getting divorced in North Oakland, Michigan, you most likely will have property that must be divided.  The property and debt, regardless of whose name it is in, will have to be divided and this can be a difficult analysis in some cases.

What the Court Must Consider

The court will first determine whether the property is marital or separate.  Generally, any income that either party earns or saves and any property they acquire during the marriage will be considered marital.  Marital property will be divided in a roughly equal fifty/fifty division.  The determination of whether property is separate is more complicated.

Generally, separate property falls into one of the following categories: (1) property that one party owned prior to the marriage and kept separate from the marital property, (2) property that was inherited or given to one spouse alone before or during the marriage and kept separate and (3) lawsuit proceeds and settlement awards that are not based upon lost income (for example an award for pain and suffering would be considered separate property).

Further, separate assets may lose their character as separate property and transmogrify into marital property if they are commingled with marital assets and/or treated by the parties as marital property. The mere fact that property may be held jointly or individually does not necessarily determine whether the court will consider it marital or separate. 

Finally, there are two statutes which will allow the court to invade the separate assets of the other spouse where (1) basically the size of the marital estate is very small and the amount of the separate property is large in contrast or (2) where the other spouse has contributed somehow to the acquisition or maintenance of the separate property.  

If you are considering getting divorced, or your spouse has brought up the subject and you have some questions about this area of the law, Cameron C. Goulding Family Law and Mediation, P.L.C. can help. Contact us today to schedule a consultation. From our office in Rochester, Michigan, we are solely devoted to the practice of family law and help families throughout Oakland, Macomb, Genesee, Livingston, Lapeer and Wayne counties navigate their way through the challenges of divorce.