Factors Courts Consider in Determining Property Rights in Divorce

By Daniel H Moss, Attorney

An important concern in divorce is how property rights will be determined. The divorcing parties usually arrive at a settlement of all their property rights after negotiation or after mediation. If settlement is not reached, the matter will be decided by the court at trial.

You must be sure that you understand and accept the settlement as written or placed on the record in open court. This is because property settlements are not modifiable, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial.

If your property includes retirement or pension plans, these may be divided by means of a qualified domestic relations order. This order usually avoids tax consequences.

Property settlements are enforceable through provisions provided in the Judgment, by execution, show cause, garnishment, etc. These procedures may be further discussed with your attorney.

In determining property issues, the court will usually consider the following:

1. Duration of the marriage

2. Contributions of the parties to the marital estate

3. Age of the parties

4. Health of the parties

5. Life status of the parties

6. Necessities and circumstances of the parties

7. Earning abilities of the parties

8. Past relations and conduct of the parties

9. General principles of equity

Each divorce is different, of course. This article is intended to provide some general information to help guide you, but it is not intended to answer specific questions about your particular case.

If you have questions or are looking for advice about your specific situation, please contact me directly at 248.855.5656 or [email protected].