Divorce, Property Division, Debts and Alimony

                                     DIVORCE, PROPERTY DIVISION, DEBTS AND ALIMONY,

  

About the Professor:

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law.

Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing family law including divorce, custody, parenting time, and child support in Michigan.

Dr. Baranski has been teaching since 1989. He has taught at Western Michigan University Cooley Law School, Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

DIVORCE:

Requirements for a Divorce:

1. One of the parties to be a resident of Michigan for at least 6 months, or 180 days before filing.
2. One of the parties to be in a particular county for at least 10 days before filing the
3. divorce complaint.

Fault:

            Michigan is a No Fault State meaning that no reason is necessary to get a divorce.  It used to be, abandonment, adultery, drug or alcohol addiction, physical cruelty or mental cruelty were required to be shown by the innocent spouse. This was changed in 1971.

 

PROPERTY DIVISION:

Distinction between Marital Property and Separate Property:

If property is considered Separate Property, it will not be considered part of the marital estate, and not awarded to the other party. Just because only one spouse’s name is on property, that does not make it that person’s separate property. Inheritances are separate property, unless the parties commingled the property to make it part of the marital estate. For example, wife inherits $100,000 and she uses the money to pay off the mortgage on the marital home. The marital home is free and clear of debt, and it is marital property. Property owned before marriage is that person’s property exclusive from their spouse.

Dividing Marital Property

There are two ways to divide marital property during a divorce. This first is to enter into an agreement with your spouse regarding who gets what. If you and your spouse can agree on a division that seems fair to both, you can then memorialize your agreement in a written contract, usually referred to as a “property settlement agreement” or “divorce settlement.” Then, you can ask a judge to include your agreement in the final judgment of divorce. Even if you and your spouse agree on everything, you may want to contact an attorney that can help you draft an enforceable agreement and make sure your rights are fully protected.

If you and your spouse can’t come to an agreement on how to divide marital property, you’ll end up in court, and a judge will decide for you.

Michigan is not a community property state, so marital property is divided equitably, but not necessarily equally. Michigan divorce courts must strive for a “fair and equitable” division of marital property and of any increases in marital assets that may have occurred between the beginning and end of the marriage. For example, if a couple purchased a $100,000 home that is worth $300,000 at the time of the divorce, the court will seek to fairly distribute the current, increased value of the home.

The final result should be a fair and equitable distribution under all of the circumstances. Courts are not required to follow any rigid rules or mathematical formulas, but instead, must embark on a consideration of the entire case.

Courts should consider the following factors when distributing marital assets:

• the length of the marriage
• the spouses’ contributions to the marital estate
• the spouses’ ages  and health
• the life status of the spouses
• the spouses' necessities, financial needs, and circumstances
• the earning abilities of the spouses (meaning how much income each spouse could earn based on education, job skills, work history, and employment opportunities)
• the spouses’ past relations and conduct, and
• general principles of equity (fairness).

DEBTS:

Divorcing couples must also deal with their debts. Regular household debts (eg., for a home, car, credit card bills, and medical expenses) incurred during the marriage are generally considered to be joint debts, and both spouses will be liable for repayment. You and your spouse can agree how to divide debts in your divorce agreement, or if you can't agree, a judge will decide. Courts have authority to order that debts will follow the property each spouse is awarded. For example, if one spouse is going to keep the family home, he or she will probably have to buy-out the other spouse's interest, and will assume the remaining debt on the home going forward. 

Sometimes, during marriage, spouses incur debts for separate purposes: not for the benefit of the marriage and without spousal consent. For example, one spouse may rack up a huge credit card bill on gifts for a lover or other "friend." Under these circumstances, a court may order that the cheating spouse is solely responsible for the credit card debt.

ALIMONY Also known as SPOUSAL SUPPORT:

The courts have listed 11 factors in determining whether alimony should be awarded. 

 

1. The past relations and conduct of the parties.

2. The length of the marriage.

3. The ability of the parties to work.

4. The source and amount of property awarded to the parties.

5. The age of the parties

6. The ability of the parties to pay alimony

7. The present situation of the parties

8. The needs of the parties

9. The health of the parties

10. The prior standard of living of the parties and whether either is responsible for the support of others.

11. General principles of equity.

BASIC RULES IN DIVORCE:

A.You keep it, you pay for it.

B.If you ran up the debt, you pay the bill.

C.Look at the marriage from the date of marriage to the date of separation or filing of the divorce to determine what is including in the marital estate.

D.If you want the bills paid by your spouse, do not move out of the house and request an order to maintain the status quo.

E.If you are afraid your spouse will sell, transfer or dispose of property, get a court order stating that neither spouse will sell, transfer or dispose of marital property without a court order or without written permission by both spouses.

F. If your spouse has moved out of the house, get a court order to have exclusive use of the marital home. That way, you do not have to worry that your spouse will show up at 3 a.m. and claim they have the right to be in their house.