The Michigan Court of Appeals recently released two separate decisions regarding the issue of separate assets. Many people believe that if you bring something into the marriage that it will remain separate property if you later get divorced. That is not always true.
In Friend vs. Friend, 2009 WL 1440794, the Michigan Court of Appeals agreed with the trial court that the husbands inheritance during the marriage was separate property. The court stated, although marital property is subject to division, the parties’ separate assets generally may not be invaded. A trial court may, however, invade the separate property of a spouse if one of two statutory exceptions is met. Under MCL 552.23(1), a party’s separate property may be invaded if, after division of the marital estate, the property ” ‘awarded to either party [is] insufficient for the suitable support and maintenance of either party[.]’ “ In other words, the “invasion is allowed when one party demonstrates additional need.” Further, under MCL 552.401, a trial court may invade the separate property of a spouse “when the other spouse ‘contributed to the acquisition, improvement, or accumulation of the property.’
In Cunningham v. Cunningham, 2009 WL 1397180, the Michigan Court of Appeals stated, because evidence was adduced indicating the farm equipment brought into the marriage was commingled with marital property, the trial court properly listed all the farm equipment as a marital asset to be divided. The defendant-husband argued the trial court improperly listed all farm equipment as a marital asset in spite of the testimony of both parties some of the equipment was purchased by him prior to their marriage. The trial court assigned the farm equipment to the defendant and ordered him to pay the plaintiff-wife the value of her one-half share ($11,697.50) in the equipment. Defendant acknowledged a spouse’s separate assets can be redistributed under certain statutorily created exceptions. But, he argued, neither of the exceptions provided for in MCL 552.23 and 552.401 were applicable to this case. An analysis of the applicability of these exclusions was unnecessary. The trial court did not determine the property was separate but held it should be invaded. The trial court determined the farm equipment was marital property. Thus, the issue was whether the trial court’s conclusion the farm equipment was marital property was erroneous. Where a separate asset is commingled with marital property, or otherwise contributed to the marital household, causing the asset to lose “any characteristic of being separate property,” the asset is no longer separate, and it is then considered marital property subject to division. Although defendant owned certain farm equipment prior to the marriage, the equipment was used throughout most of the marriage to generate income for the parties.
If you want to keep property separate from the marital estate, than do not commingle it. If you get divorced you have a better chance of keeping your separate property when it is not used for marital purposes.
Information provided by Detroit divorce attorney Joshua Ben. The Detroit divorce attorneys at Allan W. Ben P.C. have handled hundreds of divorces in the Detroit, Michigan area, and we can put that experience to work for you. View our Michigan Divorce F.A.Q. for more information.
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