In dividing property, the court determines whether property of the parties is considered “marital” or “separate” property. Generally, marital property is subject to division while the separate property is retained by the party claiming it to be their own separate property. By and large, property of the marriage is divided equally between the parties. It is a common misnomer that the wife retains a larger share of the marital estate than the husband; the division of the marital estate depends on a number of factors and is not arbitrarily determined based on the sex of the party. There are, of course, instances where the court may award a larger portion of the marital estate to one party. It is strongly advisable to speak with an attorney to explore what circumstances may necessitate a larger property award to one spouse over another.
In determining property issues, the court may consider the following factors, among others:
- The contribution of each party to the marital estate;
- The necessities and circumstances of the parties;
- The earning ability of the parties;
- The past conduct of the parties (fault); and
- General principles of equity (fairness).
It is imperative that parties have an attorney to assist them through this process to ensure they receive all property that is entitled to them. An attorney will usually help facilitate a settlement of their property rights. The parties may also make use of mediation or arbitration to assist in reaching a settlement. If the parties cannot agree to settle the matter, the court will decide the property issues after a trial.
Are Property Settlements Modifiable?
Property settlements are not modifiable, except in cases of fraud, clerical error, mistake or gross unfairness. Property settlements are also not dischargeable in bankruptcy. Parties must be absolutely sure they understand and accept all terms of the property settlement before agreeing to the settlement.
For more information about divorce and family law, or to retain The Divorce Attorneys of Michigan, please call us at 248-785-3634.