Property Settlements

"Do I need to have a property settlement as well as a divorce judgment?"

The answer is, it depends. Property settlements provide privacy over the personal and sensitive financial matters of the parties from prying eyes. The nuts and bolts of "who gets what" can be placed in a separate document called a property settlement and simply referred to in the final divorce judgment.

This prevents the curious from looking through your court file, which can often be accessed by the public online.  

If you don't have a lot of property or don't care who knows how it's divided, then you probably don't need a property settlement and a simple divorce judgment will work just fine.

For those who do feel the need for a property settlement agreement, there is another decision to make; whether or not the property settlement will be merged (made a part of) the divorce judgment, or simply "incorporated but not merged" into the judgment.

 

"What's the difference between a property settlement that is "incorporated but not merged" and one that is merged into the divorce judgment?"

The difference is the rights you will have. A property settlement that is "merged" into the judgment becomes part of the judgment itself. Although the public will not be able to view the actual property division (unless it is physically attached to the judgment in the court file), the parties' only option for relief will be in the divorce court. They will also have only one year after the judgment is entered to seek relief under the Michigan Court Rules.

If the property settlement is "incorporated but not merged," then you have all the rights of any party to a contract, and a longer time; i.e., 6 years, to seek relief from the agreement. The agreement is subject to all attacks that any contract is subject to, such as fraud, duress, lack of consideration, etc. Although a property settlement may be dischargeable in a bankruptcy case, a judgment based on fraud may not. Finally, a property settlement that is "incorporated but not merged" provides the right to a trial by jury just like any other contract.

The current trend for MIchigan divorce attorneys is to incorporate and merge the property division into the divorce judgment.  The reason for this is that Michigan family law judges are best equiped to deal with the intricacies of interpreting divorce judgments.  Judges who do not regularly handle divorce matters are not as comfortable with the specific body of law involved in divorce property division issues.  If you have questions about which is the best option for you, call our office for a free telephone consultaion.