Basic Concept: The basic concept is that each party should receive 50% of the net worth of the marital estate. The marital estate is a combination of the assets and liabilities accrued during the course of the marriage, which includes real estate, household goods and other personal property, pensions, 401k’s, IRA’s, investment accounts, contracts, sick & vacation time, credit card debt, loans, etc. It does not matter whose name the property is in. With some limited exceptions, if the property was accrued during the marriage, it is subject to being divided.
Separate Property: Separate property is either property that one party brings into the marriage, and keeps separate, or receives during the marriage such as an inheritance or family gift, and keeps separate. For example, if a party brings into the marriage $10,000 in a savings account, or receives during the marriage $10,000 in an inheritance or gift, and keeps that property in the account without putting the other person’s name on the account, then that property will normally be considered separate property not subject to division. On the other hand, if the party uses that money as a down payment on a house, to payoff debts, or places the other person’s name on the account, then that property may be subject to division.
Pension & Retirement Accounts: The portion of pensions and other retirement accounts such as deferred compensation accounts, IRA’s, Roth IRA’s, and stock purchasing plans that were acquired or accrued during the marriage is part of the marital estate and is subject to being divided.
Fault: Michigan is considered a No-Fault state; however, that is a misnomer. A person does not need to allege or prove fault in order to get a divorce. Fault can be an issue, however, with respect to property division, custody, and spousal support. For example, if a party is found to be at fault, the Court may determine that the property should be divided 55% – 45% or 60% – 40% rather than 50%-50%. If the marital estate has a low net worth, then it is usually not worth arguing about fault; however, if the marital estate is substantial, then fault may be an issue worth evaluating.
Even when the parties agree and the distribution seems simple, it is essential to seek the advice of a competent and experienced attorney. I have had numerous clients who represented themselves only to find after the divorce was final that the Judgment of Divorce was not complete or did not address all of the issues, or did not include the entire agreement. It is even more important to be represented by an attorney with a history of success when the marital estate is significant.