DIVISION OF ASSETS:
When the division of assets, finances, property, custody, debt, etc., is set be begin, Nichols & Eberth, P.C., can assist you with forensic CPA, financial analyst, real estate appraiser, business appraiser and other professionals can assist with this important process.
The court can enter special orders upon the filing of the case, known as “ex parte” orders, that can protect you and your children, and freeze your assets and debts until the divorce is final. “Ex parte” means that they are entered by the court simply by being presented with the request for the order, and without your spouse having to be present at the court for the court to enter the order.
What It Means to Obtain a No-Fault Divorce
“No fault” divorce means that Michigan family law courts do not require a party who files for divorce to prove fault to get a divorce judgment. Importance would be any abuse or neglect of the child. The court would use a 12-factor test to determine who should have custody.
Marital Property vs. Separate Property
Michigan family law courts do not consider everything you own as being subject to dividing. They only divide marital property and debts. They do not divide separate property and debts. The court’s definition however, differs from what people often think of as marital and separate property. Just because something is in your name alone does not make it separate property.
Marital property may include any type of property that was acquired during the marriage. This runs the gamut: real estate, home furnishings, vehicles, tools, sports equipment, boats, cabins, insurance policies, businesses, income from whatever source and however received, investment accounts, retirement accounts, pension plans, bank accounts, etc.
Separate property is more limited in its definition. This is property that a party owned prior to the marriage, or that was gifted to, or inherited by the party alone during the marriage, or that was specifically agreed to be separate property in a validly executed and enforceable prenuptial agreement. IMPORTANT: All the above can lose their separate property status if the asset is commingled with a marital asset, title gets transferred into the other spouse’s name or marital income or efforts are used to preserve the asset. You can see how easily separate property can lose its separateness, especially the longer that parties are married to one another and the longer the asset is around.
Debts are treated a bit differently because it is easier to create a dividing line on when a debt was incurred. Debts incurred during the marriage are marital debts. Debts incurred before the marriage are separate debts.
The courts apply the standard of equitably dividing the parties’ marital assets and debts. Equitable means “fair”, not necessarily equal.
Settlement vs. Trial
It is important to keep in mind that a settlement in a divorce case is binding upon the parties. Michigan family law courts will enforce the settlement that you reach in your case the same as if the judge made the decision at a trial. The main difference is that you and your spouse came to the final decision about how to divide your assets and debts rather than the judge. This includes any resolution on the issue of spousal support as well.
If you have minor children, the settlement you reach on the issues of custody, parenting time and support will have to be reviewed and approved by the judge independently of your own agreement. This means that it has to be in “the best interests of the children” for you and your spouse to have made the agreement on those issues. Nichols & Eberth, P.C., will assist you in finding a settlement on those issues that is likely to be approved by the court.
All settlements, once reached, are put into the form of a consent judgment of divorce that the judge will sign. This means that the parties consented to the terms of the judgment, rather than had a trial where the judge issued a ruling in the form of a judgment of divorce by verdict.
Specific Financial Issues
There are times that you may need more than your divorce attorney to address certain more complex financial issues. For example, appraising an asset like real estate or a business, or tax and accounting issues. Our firm Nichols & Eberth P.C., works with professionals who we can recommend assisting in these different aspects of your divorce. For example, you may need to hire a forensic CPA, financial analyst, real estate appraiser, business appraiser, etc.
Dividing Pensions and Retirement Accounts
If you divide a pension or retirement account as part of your divorce, the plan administrators of those pension plans and/or retirement accounts require a special order to be entered with the court beyond just your judgment of divorce.
These documents are known as Qualified Domestic Relations Orders (QDRO) or sometimes, Eligible Domestic Relations Orders (EDRO).
If these orders are not entered with the court, then you will have a judgment that says you are awarded a share of the asset, but you will not be able to access the funds. There are cases of people who waited too many years to take action to obtain the orders and lost their right to the account.
DISCLAIMER: The information on this website of Nichols & Eberth, PC Law Offices is intended for informational purposes only. It is not intended as professional legal advice. All client's legal situations differ and a personal legal consultation and assessment is unique from one client to another. We are not responsible to update information in real time. Check back for periodical updates on content information on this website.
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Nichols & Eberth, P.C., Knows how to negotiate efficiently in divorce cases. We pioneered one of the first divorce & family mediation centers in Michigan. Michigan Mediation Centers
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