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Property division can be more complicated in same-sex divorces

On Behalf of | Mar 17, 2022 | Property Division

Every marriage is unique, as is every divorce. Common issues will typically arise, such as child custody, spousal support and property division – but how those issues play out, and their relative importance, will vary from one couple to the next. For same-sex couples, property division can have complications which heterosexual couples will never have to deal with.

Equitable distribution framework

In Michigan, property distribution takes place under the principle of equitable distribution. At the outset of any divorce, the court will seek to classify the couple’s assets as either separate or marital property. Separate property is that property which belongs entirely to one spouse and will usually remain with that spouse following the divorce. Everything else is considered marital property, to be divided between the spouses in an equitable manner.

In the context of property division, equitable means ‘fair’, rather than ‘equal’. The court considers a number of factors to achieve a fair distribution of the assets, including the length of the marriage, how the individual spouses contributed to the assets, the relative earning power of the spouses and any other factors the court considers relevant.

The potential complication for same-sex couples

Of the factors the court takes into account, consider that of marriage length. For heterosexual couples, the date of marriage provides an easy and clear starting point to judge the length of the marriage. But for same-sex couples, it may not. Since same-sex marriage was only legalized in 2015, many same-sex couples could have been living as a married couple for years, if not decades, but were unable to formalize their relationship. Through no fault of their own, the actual length of their marriage can be substantially different than that traditionally recognized by law.

How this difference impacts property division in the divorce is not entirely settled. As such, it creates a level of uncertainty with which heterosexual couples don’t have to contend. If you’re considering divorce and are concerned about the how the law will treat your division of property, speak to a professional who is experienced in Michigan divorce law.