Before distributing property between the parties in a divorce, a trial court must first determine which property is marital and which property is separate. Reeves v Reeves, 226 Mich App 490 (1997). Generally, only the marital estate is divided between the parties, and each party takes away from the marriage that party’s own separate estate with no invasion by the other party.
What is the definition of marital property?
Marital property is that which was acquired or earned during the marriage whereas separate property is that which was obtained or earned prior to the marriage. Cunningham v Cunningham, 289 Mich App 195, 201 (2010), citing MCL 552.19. This definition seems straightforward, but there are exceptions. Property that would otherwise be considered separate can lose its separate character and transform into marital property if it has been comingled with marital assets and treated by the parties as marital. Id. at 201-02 (emphasis added). The mere fact that property is held jointly or individually (for example a bank account or title to property) does not determine whether the property is classified as marital or separate. See id.
What are some examples of separate property?
Normally property inherited by a party and kept separate from marital property is deemed separate property not subject to division. Deyo v Deyo, 474 Mich 952 (2005). Similarly, gifts given to one spouse alone are generally considered separate. Brookhouse v Brookhouse, 286 Mich 151 (1938). On the other hand, gifts given to both spouses are considered marital. Heike v Heike, 198 Mich App 289 (1993); Darwish v Darwish, 100 Mich App 758 (1980). In Darwish, the court rejected the wife’s pronouncement that all wedding gifts belong to the bride, holding that unless specifically earmarked for one spouse, wedding gifts are presumed to be owned by both spouses.
Whether a gift is to one or both spouses depends on the intent of the gift-giver. In determining that intent, an attorney may look for evidence such as the payee shown on a gifted check, correspondence accompanying a gift, or other evidence of intent to gift to one spouse as opposed to both spouses.
How do courts divide the marital estate?
Once the court has classified the parties’ property as separate or marital (including what property is comingled), the court will seek to divide the marital estate in a way that is equitable, just, and reasonable, considering all of the factors in the case. The following is a list of factors that courts consider:
- duration of the marriage
- contribution of the parties to the marital estate
- age and health of the parties
- life status of the parties
- necessities and circumstances of the parties
- the parties’ earning abilities
- the parties’ past relations and conduct
See Sparks v Sparks, 440 Mich 141 (1992). A court may also considered additional factors relevant to the specific case, such as the interruption of the professional career or education of either party. Id. at 160. In weighing these factors, and possibly others, a court can decide to split the marital estate 50/50 or some other proportion (e.g., 60/40), if supported by the general principles of equity. It is important to discuss the details of your case with an attorney to determine whether you have a persuasive argument which entitles you to a larger share of the marital estate.
Can a court invade separate property in dividing the marital estate?
Yes. Despite the doctrine of noninvasion, the law permits courts to award one spouse some of the other’s separate property where the spouse needs it for suitable support and maintenance or where one spouse has significantly assisted the other in the acquisition, improvement, or accumulation of the separate property. Reeves, 226 Mich App at 494-95; see also MCL 552.23(1). If the court seeks to invade a spouse’s separate property, they have the discretion to award gifted or inherited property to the nonowner spouse.