The issue of separate assets in a divorce is an area of Michigan Law that is constantly changing. Lawyers keep their eyes on recent opinions from the Court of Appeals and the Supreme Court on a daily basis.
“Separate Property” is not considered as a part of the marital estate. The court must make a determination about what is separate property and what is “marital” property. Separate property will be awarded to the person who it belongs to except for limited statutory exceptions to the rule, namely, need or contribution (there are always exceptions to the rule). The consequences of finding an asset to be separate as opposed to marital can change the bottom line in a divorce settlement immensely.
So, exactly how is “separate property” defined???
Here is a list of questions to ask in making that determination:
- Was it acquired before the marriage?
- Was it an inheritance?
- Did it remain in a separate account, titled and under the control of the claimed owner of the property?
- Was it co-mingled?
- What was the intent of the parties as to ownership?
- Was it awarded because of pain and suffering based on the claimant’s injury related to an accident?
- How was the property titled? CAUTION: Just because it is titled only in one person’s name it does not automatically become “separate” property.
Once you have analyzed whether or not a particular asset may be separate, then you must determine if the other party has a claim because of need or because they have in some way contributed to the maintenance of the asset. If a party to the divorce can prove that they have need or have contributed to the maintenance of the asset, then the court can INVADE that separate asset and award a portion to the other party. Yeah, invasion sounds like a nasty thing doesn’t it?
If you believe that you may have a claim to a separate asset you should consult with a knowledgeable attorney. Separate asset arguments require an advanced level of analysis, an up to date knowledge of the law and an attorney who pays close attention to detail.
Have a legal question? The professional staff of family law attorneys at the Lakeshore Law and Mediation Center would be happy to assist you. Contact us today by phone at 616.844.4091 or by email using the contact form below.
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