The Shaw Law Firm | Divorce
Under Michigan divorce law, most property acquired during a marriage is considered to be “marital property”. If the parties get divorced, the court will generally divide marital property equally between the two parties.
Factors considered in the distribution of assets
If one party does something to waste or dispose of marital assets before the divorce, the court may award the other spouse a more significant portion of the remaining assets. This might happen if one spouse liquidated an investment account to cover a gambling debt.
If the earning potential of one spouse is greater than the other, the court may designate a more significant portion of marital assets to the spouse that earns less. This is particularly likely if the lower-income spouse has custody of the children from the marriage.
Separate property
Some types of property obtained by spouses during the marriage are separate and are not subject to equitable distribution, such as an inheritance, if the receiving party has kept the inheritance separate. The receiving spouse would have to maintain the asset as individual property and not comingle it with other marital property.
If a spouse can show that they owned a particular property before the marriage, they can ask the court to exempt these assets from any property distribution. Determining the distribution of assets in a divorce is a complex process. The type of assets and position of each party in the marriage are important factors.
A Genesee Circuit Court judge’s decision to send a Swartz Creek man to jail over a divorce case has been upheld by the State of Michigan Court of Appeals.
According to court documents, the man claimed unemployment for almost two years and that “he has been unable to find employment despite having a mechanical engineering degree from Michigan Tech and an MBA from Harvard” — statements which the court said it found not credible in “an expanding economic environment.”
The kicker may have been when he rolled up to the courthouse in a new car. “I mean, people who are flat broke don’t go buy new cars without showing, in mind, some level of disregard or flaunting their disrespect for court orders, that’s how I see it,” Behm said in court, also addressing that his living situation with his new partner was “essentially, for free.”
One of the most common misconceptions is that a person will be found to have “abandoned” their home, by moving out, and that there will be a loss of rights resulting from this action. There is nothing in Michigan law that provides for a loss of rights if one moves out of the marital home. The home continues to be a marital asset and both spouses will be entitled to share in the value of the marital home, subject to other legal principles surrounding the source of the funds that were used to purchase the home.
However, there are considerations that should be made, in deciding whether to move out of your home when a divorce is being considered.
The first consideration is whether there are minor children. If there are minor children, and custody of those children is in dispute, the court may give stronger weight to award temporary custody to the parent who remains in the home. The reason for this is to provide stability for the children. For this reason, it is always preferable to have an agreement, in writing, with your spouse about the care and custody of the children before moving out. There are situations where this is impractical, such as when there are concerns for personal safety, and in those cases, one’s safety must always come first.
Another consideration is whether you and your spouse may both wish to be awarded the right to remain in the house after the divorce. Again, this has nothing to do with the award of monetary value of the house, but instead comes up if both parties will be asking the court to award physical possession of the home to them at the conclusion of the divorce. Obviously, there is only one house, so if a court has to decide who should be allowed to remain, one consideration is who has remained in the home up to that point. If there are minor children, it is likely that a court will allow the parent who will be the primary custodian of the children to remain in the house if he or she wishes. But in a case where there aren’t minor children, the scale may tip toward the person who has remained in the house.
In the best of worlds, couples should come to an agreement before one moves out, covering how the expenses for the home will be maintained, the servicing of marital debt, whether income will be shared or kept separately, and if there are children, the parenting schedule that will be followed. This allows for both parties to be able to appropriately plan, and to know what can be expected. If reaching such an agreement is not possible, it is advisable to consult with an attorney before moving out, so there is an understanding of the possible ramifications.
Over the past few days, there has been significant media coverage about the recent Ashley Madison data breach and subsequent disclosure of client names and other personal client information. Based on media reports, family law attorneys are seeing a significant uptick in potential new matters due to a spouse being an Ashley Madison client.
Given the fact that Ashley Madison used the internet to allow clients to interact with other clients, there is likely to be a wealth of potential evidence stored on computers and mobile devices. The proper preservation and analysis of these items could play a key role in any litigation.
Forensic Services utilize the latest methodologies and technology available to identify and collect digital evidence. Companies that provide this service have extensive expertise in conducting digital forensic investigations and can provide the knowledge and techniques needed to assess, acquire, and analyze your digital evidence.
A large percentage of divorced persons, widows, and widowers subsequently remarry one or more times. It is important to consider the legal effect divorces may have on any pre-existing estate plans including wills, trusts, non-probate transfers [such as joint tenancy with rights of survivorship, community property with rights of survivorship, payable on death (“POD”) and transfer on death (“TOD”) beneficiary designations].
What effect does divorce have on a will or trust executed during marriage?
A divorce, by statute, revokes (cancels) any provision in a will executed prior to the divorce directing distribution of any assets to the former spouse (or members of the former spouse=s family) of the divorced person. Likewise, a provision in a revocable trust executed prior to the divorce directing distribution of assets to the former spouse is revoked.
What effect does divorce have on assets where a former spouse was designated during the marriage as a “POD” or “TOD” beneficiary (such as on a bank, credit union account, stock, bond or brokerage account)?
A divorce revokes the beneficiary designation naming the former spouse or any members of the former spouse’s family. It is of critical importance, however, that written notice of the divorce be given to the institution because if the institution delivers the asset to the named beneficiary in good faith and without notice of the divorce, the institution is not liable for having made the distribution to the former spouse.
What effect does divorce have on assets titled during marriage in joint tenancy with rights of survivorship or community property with rights of survivorship with a former spouse?
The divorce terminates the survivorship provision and thereafter the parties own the asset as tenants in common (each owns an undivided equal interest but the death of one of them does not transfer the deceased person’s interest to the survivor). It is essential that there be specific written notice of the divorce recorded in records appropriate to the kind and location of the property. Otherwise, the party making delivery to the former spouse (or family member of the former spouse) or a third party acquiring the property or asset for value without notice is protected from liability.
What effect does divorce have on a designation of a former spouse or member of the former spouse’s family as beneficiary of a life insurance policy?
The beneficiary designation is revoked upon the divorce unless there is some contrary provision in the divorce decree which provides for beneficiary designation or ownership of the policy. As stated above, however, it is critical that written notice of the divorce be given to the insurance company. Otherwise, the insurance company is not liable for payment to the former spouse or member of the former spouse’s family.
So, What Action is Required/Advised upon a Divorce?
It is dangerous to rely upon the statutory provisions discussed in this article instead of having the entire estate plan reviewed and revised during a divorce proceeding. Unintended consequences can occur in spite of the statutory provisions! Upon the filing of a divorce action, there should be consultation with an attorney familiar with the estate plan and appropriate revisions, changes made to any existing will, trust, beneficiary designation, joint ownership of assets. The statutory provisions do not cover all possibilities!
When people get divorced, they often sell the marital residence. In 2010, divorced couples are learning there is less equity in their homes and the ability to sell a non-foreclosed or short-saled property is impacted by these market conditions. These conditions also impact refinancing as there is less equity in most properties in 2010 than existed in 2003.
A short sale is a property that is worth less than the seller owes on his mortgage, before consideration of real estate commissions and closing costs. A seller will receive no funds upon sale. Often, a seller has not only a first mortgage but also a home equity loan or line of credit to repay, which requires approval of the proposed sale by all the creditors before a closing can be set.
In foreclosure, the property is lost back to the mortgage holder for failure of the owners to make their monthly mortgage payments. Generally, a foreclosure action will commence within 120 days of failing to pay the mortgage in full. Upon taking back the property, the bank or mortgage holders will try to sell the property to recoup as much of the overdue mortgage and attorney’s fees as the market will bear.
Cash is king in today’s market, so a lower cash offer for foreclosed and short sale property will often beat out a mortgage contingency contract offer for a greater amount given certain credit restraints working in the market place. Until jobs are created which pay low six figures, real estate sales will linger and values will continue to decline because there will be too much product available for sale. All of these market issues will impact sound settlement strategies in family law for years to come. It is my goal in representing my clients to identify in the interviewing process how these issues can be managed or immediately dealt with in an earnest and open discussion
A good way to tell that the economy is recovering is to review the divorce rates. In 2008, the divorce rate dropped 24% in 2008 and 57% in 2009, but started inching upwards towards the end of last year. It appears that people were afraid they were going to lose their jobs so they were very cautious about getting a divorce because you have to split your assets.
According to figures provided by the Academy, the United States has the world’s highest divorce rate, with 4.95 divorces for every 1,000 inhabitants. The marriage rate is 9.8 for every 1,000 people, according to the US Census Bureau.
Traditionally, in an economic downturn, less people divorce and separate. Further, people also hold off on having a child. Additionally, because the cost of a divorce can be as low as $2,500 to as high as $50,000, people often think twice about divorcing.
Further, the cost of housing also affected couples’ decision to divorce. Couples also delayed their divorces because they believed housing prices would eventually rebound. Most attorneys opine that “it makes no economic sense to wait for the housing value to go up before they divorce… that would take years and years.”
Choosing your lawyer is probably the most important decision you will make in your divorce process. So make sure you find somebody who will smooth the road ahead, not make it more rough than it already is. Here are some tips.
1. Schedule a consultation with the attorney. First impressions are important when choosing a person who will be representing you in very personal matters. Though this initial meeting may not tell you all you need to know about a lawyer, it will tell you if you are comfortable with the person and if they appear self-assured and well-versed in the law. You can also find out how long they have been practicing and how many divorce cases they have handled.
2. Contact the state or local bar association. Most states have online sites where you can check on attorneys, including their disciplinary records.
3. If possible, get a divorce lawyer with lots of experience in both litigation and negotiation. He or she will be able to anticipate pitfalls that may come up in your case and avoid them. You also want a lawyer who will be completely honest with you about your case. A lawyer who tries to sell you on how much he can win for you will only set you up for disappointment, but one who lets you know the strengths and weaknesses of your case up-front will be far more trustworthy. You also should make sure that your lawyer is accessible: you should be able to reach him or her in an emergency, and he or she must answer phone calls and e-mails.
4. Also make sure to ask prospective lawyers about their fees, their estimation of the total cost and time spent on your case, what percentage of their cases go to trial. . Ask if they’ve handled cases like yours before; if so, it’s an advantage.
Keep in mind that you’re the one who’s employing the lawyer, not the other way around. You’re the boss: it’s your final decision who will work for you, so choose carefully.
If your spouse cheated on a joint tax return filed with you, you may be able to escape liability for any amounts owed to the IRS. If you were unaware that your spouse made misrepresentations on your joint tax return, you can file forms that will allow you to compute your tax separately. If you have been audited and believe this rule may apply to you, you should see a tax accountant or attorney to handle this matter for you. If you have any reason to believe that you or spouse lied on a joint tax return, make sure that there is language in your settlement agreement or divorce decree that provides that he will be fully liable for any tax responsibility to the IRS and that he will reimburse you for any fees or costs which you incur to oppose any collection efforts by the IRS
Unfortunately, most of the fees associated with your divorce are not tax-deductible. However, some portions such as those related to any tax advice related to your divorce are deductible.
Fees for Tax advice. The time and fees your attorney charges for any type of tax planning research or advice to you on items related to property transfers, retirement plan issues and dependency exemptions for the children, are deductible. For example, there are tax considerations related to the division and distribution of monies from retirement accounts. The time your attorney spends analyzing the tax ramifications and advising you, would be deductible. Important tip – make sure you have your attorney specify in his bill which portion is deductible and what portion is nondeductible (typically this is one third to one half of the total cost)- most attorneys will not make this allocation if you don’t ask.
Another avenue for deduction is fees incurred to collect alimony. This deduction is available for the original proceeding to secure alimony, as well as later proceedings to increase alimony or to collect past-due alimony
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