Separate v Marital Property

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One of the most complicated issues in divorce is premarital or separate property. Each case is very fact specific.

SEPARATE V MARITAL PROPERTY

Trial court must divide marital property between the parties and, in doing so, it must first determine what property is marital and what property is separate. *201 Reeves v. Reeves, 226 Mich.App. 490, 493–494, 575 N.W.2d 1 (1997). Generally, marital property is that which is acquired or earned during the marriage, whereas separate property is that which is obtained or earned before the marriage. MCL 552.19.

Once a court has determined what property is marital, the whole of which constitutes the marital estate, only then may it apportion the marital estate between the parties in a manner that is equitable in light of all the circumstances. See Byington v. Byington, 224 Mich.App. 103, 110, 112–113, 568 N.W.2d 141 (1997). As a general principle, when the marital estate is divided “each party takes away from the marriage that party’s own separate estate with no invasion by the other party.” Reeves, 226 Mich.App. at 494.

The categorization of property as marital or separate, however, is not always easily achieved. While income earned by one spouse during the duration of the marriage is generally presumed to be marital property, Byington, 224 Mich.App. at 112, 568 N.W.2d 141, there are occasions when property earned or acquired during the marriage may be deemed separate property. For example, an inheritance received by one spouse during the marriage and kept separate from marital property is separate property. Dart v. Dart, 460 Mich. 573, 584–585, 597 N.W.2d 82 (1999). Similarly, proceeds received by one spouse in a personal injury lawsuit meant to compensate for pain and suffering, as opposed to lost wages, are generally considered separate property. Washington v. Washington, 283 Mich.App. 667, 674, 770 N.W.2d 908 (2009); Pickering, 268 Mich.App. at 10, 706 N.W.2d 835.

Moreover, separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and “treated by the parties as marital property.” Pickering, 268 Mich.App. at 10–12, 706 N.W.2d 835, citing Wilson v. Wilson, 179 Mich.App. 519, 521, 524, 446 N.W.2d 496 (1989). The mere fact that property *202 may be held jointly or individually is not necessarily dispositive of whether the property is classified as separate or marital. See Korth v. Korth, 256 Mich.App. 286, 292–293, 662 N.W.2d 111 (2003); Reeves, 226 Mich.App. at 495–496, 575

If you are facing a divorce involving premarital or separate property, a good divorce attorney is not optional, it is a requirement! Our divorce attorneys can answer your questions with straight talk. Having the right divorce attorney on your side can relieve your stress during this difficult situation. Our attorneys have over 85 years of divorce experience. Our attorneys have extensive divorce trial experience including property settlements, spousal support, alimony, child custody, and other serious divorce related issues. Considering the seriousness of this life changing event, it is extremely important to retain the services of an experienced attorney in the area of divorce.

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