In dividing property, the court determines whether property of the parties is considered “marital” or “separate” property. Marital property is that which the parties acquire during the marriage. Generally speaking, the wealth accumulated by the parties during the marriage is considered marital property, regardless of which party actively contributed to the source of that wealth. For example, if one spouse earned an income during the marriage while the other was a homemaker, half the wealth accumulated by the working spouse belongs to the nonworking spouse.
The logic behind this lies in the premise that had the nonworking spouse not had the responsibility of caring for the home, the nonworking spouse would be earning an income as well. The marriage is considered a partnership and, generally speaking, the assets of both belong to the entire marital estate.
Pensions earned during a marriage are marital property subject to division. If the property you receive includes retirement or pension plans, the plan can be divided using qualified domestic relations order (QDRO) procedures.
Separate Property in Michigan
On the other hand, “separate” property is property that belongs to one party. Examples of separate property are property that is:
- owned by one party prior to the marriage;
- inherited by one party; and
- gifted to one party.
Separate property may become marital property, depending on the treatment of that separate property. For example, if wife has $20,000 in a bank account prior to marriage and makes husband a joint account holder post-marriage, and both parties begin using those funds for the maintenance of the marital estate, she has now converted that separate property into marital property. If, conversely, both parties have their own separate accounts and never commingle their funds, those bank accounts will likely remain separate property.
Is "Separate" Property Really Separate in Michigan?
While categorizing property as “separate” is important to maintaining sole ownership of that property, in Michigan, the distinction that property is “separate” does not make it completely immune from division; courts can still consider and divide even these types of property depending on the facts of each case. The division is determined on a case-by-case basis and is ultimately decided by the Judge.
Free Consultation with a Family Attorney
For more information about divorce and family law, or to retain The Divorce Attorneys of Michigan, please call us at 248-785-3634.