Michigan is a no-fault divorce state and many people (and some lawyers) are of the belief that means only a 50/50 property division is fair. While it is not uncommon for a divorce to result in property acquired during the marriage to be divided 50/50, it is not what Michigan law requires.
In fact, fault is still a factor to consider when dividing property in a Michigan divorce. (See the cases of: McDougal v. McDougal, 451 Mich. 80 (1996) and Navarre v. Navarre, 191 Mich. App. 395 (1991)).
In the case of Gill v. Gill, Docket No. 301839, I successfully argued at the trial level that a 50/50 property division was not fair and the trial court agreed, awarding my client the majority of the marital estate. Opposing counsel took an Appeal and my client won. The Michigan Court of Appeals noting:
“There is no rigid rule or mathematical formula for the division of property, and there is no requirement that the trial court award the property equally to the parties. But the award must be equitable.”
Various cases have expanded on the notion that a 50/50 property division is not always fair.
In Zechin v. Zechin, 149 Mich. App. 723 (1990), the Michigan Court of Appeals concluded that the parties conduct leading up to the separation is the relevant consideration not necessarily who left the marriage in determining who is at fault for the breakdown of the marriage.
In McDougal v. McDougal, 451 Mich. at 90 (2008), the Michigan Supreme Court determined that fault is an element in the search for an equitable division under Michigan property law. Fault should not be used to punish, rather make the division fair.
The notion that fault should not be used to punish, rather make the division fair was emphasized by the Michigan Supreme Court in Sparks v. Sparks, 440 Mich 141 (1992). In the Sparks case the court noted that fault is only one factor and should not be given undue emphasis.
In the case of Allison v. Allison, Docket No. 330997, the husband challenged the trial court’s 60/40 property division in his ex-wife’s favor arguing that the award was punitive. The Michigan Court of Appeals disagreed, noting that the goal in the distribution of the marital estate is equity in light of all the circumstances, citing Richards v. Richards, 310 Mich. App. 683 (2015).
There being no requirement under Michigan law for a 50/50 property division, however, the court must clearly explain any significant departure from a 50/50 property division.
In the case of Berger v. Berger, 277 Mich. App. 700 (2008), the Court of Appeals noted that “Mathematical equality is not required, but any significant departure from congruence must be clearly explained.”
In the case of Knowles v. Knowles, 185 Mich. App. 497 (1990), the Court of Appeals decided that marital misconduct after the date of the filing of divorce did not justify a 70-30 split of the marital property.
In Welling v. Welling, 233 Mich. App 708. (1999), the Court of Appeals determined that a party’s conduct resulting from the consumption of alcohol contributed to the breakdown of the marital relationship.
It is important to remember that Fault is only one factor that should not be given undue emphasis. However, it should not be ignored.
If you are considering a 50/50 property division in a divorce, you should consider fault before doing so.
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By: Daniel Findling