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Michigan Family Law Blog

Wednesday, February 10, 2021

When Going Through a Divorce, Who Gets the House?

Michigan law allows you to agree with your spouse about the division of assets. A judge must approve of your proposed property distribution. If you cannot agree on who will get specific assets, like the home, a judge will have to make the decision for you after evaluating multiple factors. A Michigan divorce attorney can walk you through the process that determines when going through a divorce who gets the house.

Marital and Separate Property

The first issue the judge will explore is whether the house is marital or separate property. In general, separate property is something a person owned before the marriage and kept separate throughout the marriage. Also, things acquired during the marriage by gift or inheritance can be separate property.

Usually, the judge will set aside to each spouse his or her separate property, but there are exceptions to this rule. For example:

  • A spouse owned a house before getting married and transferred the house into both names during the marriage. This previously separate property became marital property when transferred into both names.
  • A spouse inherits money before or during the marriage and deposits the money into a joint bank account with your spouse. This inheritance is marital property when it goes into the joint bank account.
  • A spouse inherited a farm and did not jointly title it with the other spouse. The other spouse worked the farm and improved it. The judge can award the other spouse a portion of the value of the farm.

Determining issues about marital and separate property can be complicated.

How to Divide Marital Property

The distribution of the marital property must be fair when one takes into account all of the circumstances. If a property division looks shockingly unfair to an uninvolved third party, the judge is unlikely to approve of it. This situation can happen when the spouses do not have equal bargaining power. One spouse might be used to browbeating the other spouse into doing what he or she wants. Judges are unlikely to allow one spouse to leave the other one destitute after the divorce.

A fair distribution does not have to be 50 percent to one spouse and 50 percent to the other. The judge will look at these and other factors when evaluating the fairness of an asset division:

  • The needs of each spouse. Let’s say that the couple had three children. The parties agree on one spouse having primary physical custody. The custodial parent probably has a greater need for the family home than the other parent. In the situation of a disabled spouse who cannot earn enough to self-support, the judge might award more than 50 percent assets that help that spouse meet financial needs.
  • The income of each spouse. When one spouse earns $200,000 a year, and the other spouse earns $50,000 a year, the high-income spouse has less need than the lower-income spouse. In a long-term marriage in which one spouse was not employed outside the home during the marriage, entering the workforce at an advanced age could be challenging.
  • The overall financial picture of each spouse. If one spouse has vastly greater assets than the other spouse, the judge might apportion a greater amount of marital assets to the low-asset spouse. For example, if one spouse inherited 10 million dollars, and the other spouse is a minimum wage worker, the judge might award more than 50 percent of the marital assets to the low wage earner.
  • Fault in ending the marriage. Being the spouse with “unclean hands” does not automatically mean that one walks away from the marriage broke, but the judge can consider things like marital misconduct when apportioning assets, particularly if one party’s actions caused financial harm to the family.
  • Debt of the parties. When one spouse takes on more than 50 percent of the marital debt, the judge might find it appropriate to award that spouse more than 50 percent of the marital assets.

These are but a few examples of the many factors that a judge can evaluate when awarding separate and marital property, including the home, in a divorce. A Michigan divorce attorney can advocate for you in your divorce. Contact our office today.


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