Property Settlement—Frequently Asked Questions

The fair distribution of assets between the parties is a major issue to be decided.

The fair distribution of assets between the parties is another major issue to be investigated, and if possible to be resolved during the waiting period. A fair distribution cannot, of course, be accomplished without knowing the assets of the parties.

Discovery

Discovery is the general term used to describe the process by which attorneys for both sides investigate facts and information in the hands of the other side relative to issues in the case. In divorce cases both attorneys are seeking information about assets and liabilities the parties have. The usual forms of discovery used in divorce cases (and often in other lawsuits) are interrogatories and depositions.

  • Interrogatories

    Interrogatories are written questions asked by one side to the party on the other side. That party must answer those questions in writing and under oath with the help of his/her attorney.

  • Deposition

    A deposition is oral questioning, with the party questioned being under oath, and a court reporter recording the questions and answers. Depositions are taken in a lawyer's office, not in the courtroom.

There are other forms of investigation a lawyer can use, depending on the circumstances and the cost. The purpose of discovery or investigation is to have all the facts necessary to settle or to try the case. These discovery procedures may be used for any aspect of a divorce, not just the investigation and evaluation of assets.

Division of Assets

Courts often divide marital assets on a roughly 50/50 basis. While there is support in Michigan law for this position, our law has also recognized factors which may affect the normal 50/50 split. Among those factors are the needs of the parties and children, the contributions of the parties to the assets, the length of the marriage, inheritances or gifts to one party, and fault. While Michigan has a no-fault divorce law, that law generally has to do with the granting of the divorce itself. Fault in the breakdown of the marriage may affect the division of assets. However, judges often will consider only “major” fault in deciding on a fair property settlement. This is in part due to the difficulty a judge has in making a factual determination as to who caused the breakdown in the marriage. Subtleties in interpersonal relations are often very difficult to prove by testimony in a court of law.

Among the items often overlooked by the parties regarding property settlement are pension, retirement, and profit sharing plans, and the cash value of life insurance. Since those assets often come from the earnings of a spouse during the marriage, they are as much marital assets to be considered as is a home purchased with the earnings of one or both spouses.

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