Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616.608.4634

Personal Property

Personal Property Disputes – Are They Worth It?

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One of the most challenging aspects of divorce can be the division of personal property. Often times the parties are able to work together to divide their personal property. The challenge begins when parties are unable to come to an agreement regarding the division of their property.

At Schmitt Law, PLLC, we educate clients that personal property disputes can be costly; exceeding the value of the actual personal property is dispute. We strongly suggest that clients look at the cost-benefit analysis of their dispute: what is the value of the property in dispute (how much would it cost to replace the item) versus the attorney’s fees associated with addressing the issue either with the other attorney or in court.

Property Disputes

When it is clear that parties have reached an impasse as to the division of their personal property, at Schmitt Law, PLLC, we suggest to clients that they work with their spouse to create two lists.  The first list will be the undisputed personal property – property that the parties have agreed to the division. The second list will identify the items that the parties are unable to agree as to the division. Often times, when parties go through the process of creating these lists, they find the value in making compromises.

At Schmitt Law, PLLC, we share with clients that judges do not favor personal property disputes being brought before the court. The courts are overwhelmed with cases and cannot realistically spend the time on cases addressing personal property disputes. Parties who are unwilling to divide their own personal property may find that leaving the division of their personal property to the court may lead to both parties being very dissatisfied with the result.

Before you rush off to litigate a personal property dispute consider the following:

  1. How much is the specific item worth?
  2. How much would it be to purchase that item new?
  3. How much will my attorney charge me per hour to address this personal property dispute with the other attorney or in court?
  4. Can I compromise and let my spouse retain the item?
  5. Does this item involved have sentimental value to one party?
  6. Am I really fighting over this item out of spite?
  7. Will the judge believe this is a petty dispute?

In summary, parties must find a way through private agreement, through mediation, or with assistance of their attorneys to divide their personal property.

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

We understand that filing for divorce can be an emotional and confusing experience. That’s why we are committed to providing personalized service to each client we represent and will be with you through this difficult journey. At Schmitt Law, PLLC we encourage clients to take a more collaborative approach to divorce that promotes positive communication and cooperation.  Through mediation or the collaborative divorce process, Laurie guides her clients through amicable divorce settlements so they can move forward with their life. To discuss your circumstances and legal options, contact Schmitt Law, PLLC at (616) 608-4634 to schedule a consultation. Or, contact us online to arrange a consultation.

Marital Property versus Separate Property

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When is property considered separate property, and therefore not divisible in a divorce?

Courts make the distinction between marital property and separate property.  Marital property is simply property acquired during the marriage.  However, the Michigan statutes fail to define separate property.  Nevertheless, courts typically adopt the rule that separate property is property that is not divisible in a divorce because it was owned prior to marriage or acquired during marriage through a gift or inheritance.  If it was owned by a party prior to marriage, it normally will be awarded to that party.

But, there are times when separate property can be divided in a divorce.  Michigan case law supports the proposition that property claimed by one spouse to be separate property may be divided if the other spouse meets on of two statutory tests:

  • Contribution Test: that the claimant contributed to the “acquisition, improvement, or accumulation of the property” MCL 522.401.
  • Need Test: that the award to the claimant out of marital assets is “insufficient for the suitable support and maintenance” of the claimant and any children in their care.  MCL 552.23.
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What happens if you received an inheritance during the marriage?  If you receive an inheritance while you are married, and want that inheritance to remain separate property, you must never co-mingle it.  What does this mean?  It means that once you have co-mingled it with joint property, you cannot separate it.  It’s like making a cake.  Once the ingredients have been mixed together, you cannot separate them out, as they are indistinguishable.  Hence, if you want to protect an inheritance, you need to maintain it as separate funds.  Once the funds have been co-mingled, it will likely be considered marital property.

If you find yourself in the midst of a divorce, and have received an inheritance, or owned substantial property prior to your marriage, you need to know how to protect your property during your divorce.  As this is a complex subject, you should contact a family law attorney who can provide you with a legal opinion based off your specific facts.