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DIVORCE 4: The division of property in a divorce need not be mathematically equal!

In this divorce action, both parties raise issues concerning the trial court’s division of marital property, award of spousal support to defendant, and award of attorney fees to defendant.

Due to the significant income discrepancies, there was no real dispute at trial that defendant contributed very little to the household expenses in the last ten years. Many issues in the divorce were settled before the trial concluded. However, the main issues the trial court had to resolve included how to value and divide plaintiff’s book of business, how to divide her 401(k), how to address allegations that plaintiff dissipated vast sums of marital assets, and how to address the parties’ requests for attorney fees.

The trial court’s goal in distributing marital assets in a divorce proceeding is to reach an equitable distribution of property in light of all the circumstances. To reach an equitable division, the trial court should consider (1) the duration of the marriage, (2) the contribution of each party to the marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life status of the parties, (6) the necessities and circumstances of the parties, (7) each parties’ earning ability, (8) the past relations and conduct of the parties, and (9) any other equitable circumstances.

Holding that the trial court did not consider the necessary factors in dividing the marital estate (e.g., the book of business, the 401(k), and the dissipated marital assets), the court reversed in part and remanded. However, the trial court did not abuse its discretion in the grant of 24 months of spousal support and in awarding attorney fees to the defendant-ex-husband.

While attorney fees are not recoverable as of right in divorce actions, they may be awarded when a party needs financial assistance to prosecute or defend the suit. It is well settled that a party should not be required to invade assets to satisfy attorney fees when the party is relying on the same assets for support. In this case, plaintiff enjoys a comparatively substantial income advantage over defendant.

The only fact the trial court used to rule that defendant should receive 25% of the value was that he contributed and sacrificed little to the Book of Business and this was not a concerted effort. This lack of contribution to the book of business would only be one relevant factor to consider.  The trial court should have considered all of the pertinent property-division factors. Nowhere in its final opinion/order or in the judgment does the trial court refer to these factors.  Accordingly, this court reversed the award of 25% of plaintiff’s book of business to defendant and remand for the trial court to perform and place on the record the proper analysis.

Once again, the governing principle in distributing marital assets in a divorce proceeding is to reach an equitable distribution of property in light of all the circumstances.  The trial court need not divide the marital estate into mathematically equal portions, but any significant departure from true congruence must be clearly explained.  Therefore, it is clear that the default position is that defendant would be awarded 50% of the value of the book of business. However, an evaluation of the property-distribution factors can alter the actual percentage to be awarded.

In Michigan, marital assets — assets acquired during the marriage — are divided equitably during the divorce process. This does not mean that the property division will be equal, however. The court will seek a "fair and equitable" division by taking a number of factors into consideration, including:

  • Length of the marriage
  • Individual needs, age, health and earning capacity
  • Individual contributions to the marital estate
  • Debt origination — ex. gambling debt vs. home purchase
  • Blame for the end of the marriage — ex. infidelity, domestic violence

Are you facing a divorce in Michigan? Do you have questions about how your assets and your debts will be divided?  At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, our attorneys understand the struggles you may face. We will work hard to help you obtain all to which you are entitled during your divorce.

Contact Aldrich Legal Services

FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

CRIMINAL 19: Sentencing guidelines are advisory.

The sentencing guidelines are advisory, and although a trial court must determine the applicable guidelines range and take it into account when imposing a sentence, the court is not required to sentence a defendant within that range.

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