Divorce vs. Legal Separation in Michigan
Until a few years ago, there was no "Legal Separation" in Michigan. A married couple could either be married or divorced, with no mention of "legal separation" in Michigan law. Because of this, if you did not live together for a period of 6 months, the other spouse could file a divorce action in court, and the court would not be able to stop them from getting a divorce. However, the Michigan Divorce Reform Act of 2015 created a new statute to allow married couples to be legally separated in Michigan. A legal separation in Michigan is very similar to a divorce, except that it does not lead to the termination of your marriage. Otherwise, it is very similar to filing for divorce in Michigan. You can file for a legal separation by filing a lawsuit and going through a trial, just like with a divorce. A court can enter orders regarding custody, child support, spousal support, and division of property in Michigan as part of the procedure. You can enforce those orders against the other party in Michigan courts. However, unlike a divorce, a legal separation will not terminate your marriage . So while legal separations are now officially recognized in Michigan, most people still file for divorce if they do not want to be married anymore. That is because the reality is that a divorce is only "temporary" until trial, and it could be over in 1 year or 2 years. But it does not keep you ‘legally separated’ in the sense that your ideal separation would look like. You are still married and still responsible for the other person financially. A legal separation on the other hand – based upon how long you’ve lived separate and apart, the circuit court would take your wants and needs into consideration, and then grant the terms you want. With a legal separation, you can more-or-less file paperwork and go to court, and the court will grant you what you ask for. You have a right to spousal support (alimony), child custody and child support, and division of assets. These rights are confirmed by the court in an order, so there are no surprises later on down the road. To put it simply: a legal separation is a simpler way to walk away from your spouse and make sure you are both taken care of, without the messy side of divorce and without making such a big change all in one day.
The Michigan Legal Separation Process
The process to become legally separated in Michigan is quite similar to filing for divorce although with a few key differences. In Michigan, legal separation does not exist as a status but rather as a case. The Court will not grant legally separated status as legally recognized. However, if one party petitions the Court for these reliefs, the Court will grant it with some requirements.
To file an action for Legal Separation, it must be filed in the circuit court under the Domestic Relations Divorce Rules. The legal separation action is started by filing the action, with the required filings and fees, and having the action assigned to a family law judge.
Within a legal separation case, a party may ask for relief by filing the following documents:
Trial is held if the parties did not reach an agreement through settlement negotiations or mediation. At trial, a party is required to show the court their need for a temporary restraining order, temporary child support, temporary spousal support, custody of the minor children, parenting time, the removal of a gun from a household given the domestic violence situation, as well as discuss property issues and any other financial support. If the parties cannot agree on any of these issues, the judge will make a ruling based on the evidence presented to the Court.
Reasons a Person May Opt for Legal Separation
Couples may choose legal separation over divorce for a number of reasons. For some, it’s strictly religious. Divorcing is against the principles of some faiths, leading individuals to seek other legal options. Legal separation is generally recognized as a legally valid status, although it is not common. Religious beliefs are not grounds for divorce in Michigan and cannot be ordered by the court without both parties being in agreement. Some faith groups offer their own legal separation procedures.
Financial considerations may also lead people to separate rather than divorce. While most states divide joint marital assets into two equal parts during a divorce (this does not necessarily apply to pre- or post-nuptial agreements), property division laws are different for long-term legal separations. Assets can be co-mingled with those already owned by one or the other party during this time, resulting in more substantial gifts in the event of a divorce. Moreover, spouses in a legal separation do not have the right to make demands for property they don’t directly own, since they are essentially still co-owners. Because of these legal nuances, some people believe legal separation is preferable to divorce for their financial advantage.
People may choose legal separation because they harbor the hope that a divorce isn’t really necessary after all. Many spouses may simply be unhappy but may still hold out hope that a more peaceful time will come when things will naturally resolve themselves in a positive direction. Others may feel obligated to try a separation in order to give spousal community services their proper chance to effectuate the family’s healing process before resorting to divorce. For still others, legal separation allows them to remain married while moving on emotionally. Although they are still married, separation means they are legally distinct from each other in many ways, including insurance coverage, sharing of health information, separation of personal assets, and so on.
Rights and Obligations During a Legal Separation
In Michigan, legal separation can be a voluntary arrangement between spouses for various reasons, including religious beliefs or the desire for an informal period of living apart, or it can be used as a step toward a divorce without some of the immediate concerns of property and asset division. A legal separation offers some of the same benefits as divorce, with some significant downsides. Legal separation does not eliminate marital status like a divorce does, and since the status of marriage still exists, there is no legal authority to enter into the division of marital assets or liabilities, spousal support or child custody guidelines. For spouses who intend to reconcile the desire to address these issues is not pertinent, but for those who are certain a divorce is needed, a legal separation can actually cause considerable legal hassle at the time of the divorce.
The issue of child custody may be a point of contention as well. Whether a child custody and parenting time arrangement should be made during the separation must be determined. Legal separation offers a temporary state of living apart, and parents may need to address issues such as parenting time because of geographical distance or other reasons that make it difficult to live together without conflict. Custody and parenting time agreements for separated parties aren’t legally binding in Michigan, but when filed with the Friend of the Court , they are considered "advisory." Parents can go about their lives without the constant threat of a court case hanging over their heads if they can come to a mutually agreeable arrangement that is registered with the court.
Does the enforceability of a legal asset separation extend to household assets, vehicles or bank accounts? The answer is no. In Michigan, a legal separation does not automatically ‘separate’ marital assets. For example, while the mortgage may be in one name, the home is still a marital asset and is subject to equitable distribution at the time it is sold or the house is refinanced. The same goes for any business assets. A court order may be needed, especially in the case of an investor-based business where one spouse fears parting with a share of their equity investment. The court can order fair and equitable separation of all assets and debts, but the separation must be requested. Even property owned prior to the marriage is subject to dispute. Whatever the eventual settlement, a legal separation does not protect marital assets in any way.
Legal separation does not formally end the status of a spouse as a participant to all marital contracts. There is no provision for spousal support or alimony unless the court decides to award it. Spouses are encouraged to seek legal guidance to try to identify what types of support will be needed (if any), the duration of the award, and whether the person paying the support will be able to meet their own needs without suffering more hardship.
Modifying or Terminating a Legal Separation Agreement
If either party finds that the terms of their legal separation are no longer a match for their life, they are entitled to petition the court to modify the terms of the legal separation agreement. This is done by means of a motion, also called a petition, which asks the court to update the terms of the legal separation agreement. The motion for modification is essentially the same as a motion or petition to modify an already existing divorce decree. For instance, the court may be petitioned to increase or decrease child support, or for the custodial parent to obtain permission to move out of the state of Michigan with their child. Depending upon the situation, the court will either grant or deny the petition, or negotiate a new divorce decree that contemplates parenting time and legal custody arrangements as well as child support payments.
In contrast, to revoke a legal separation agreement, you must petition the court to convert your legal separation agreement into a divorce. This is done by filing a motion that includes the proper information required in a divorce action. In some instances, the legal separation agreement is prepared directly by the mediator as an actual divorce agreement. In other cases, the legal separation agreement is a simple statement of living apart that does not contemplate a permanent parenting time schedule, or any orders of property division and debts. Because the standard for obtaining a divorce in Michigan is simply to demonstrate that there has been a breakdown of the marriage such that the marriage is irretrievably broken, all that is required of the moving party to obtain a divorce under such circumstances is to file a petition with the court, or to appear at a hearing in which the court states that the marriage is irretrievably broken. In such a case, both parties would not likely need to appear since the parties are in agreement about the fundamental issues of the termination of their marriage.
Legal Separation Myths
There are several myths that come up about legal separation that are not true. The following is a list of things that remain the same if you are or are not legally separated: If you decide to separate from your spouse it does not mean that you do not have to pay support. If you are a stay at home spouse and you need spousal support, you will need to seek a temporary spousal support order. You are still married even if you are legally separated. If you are separated it does NOT mean you can date other people (yet) or live with another person. Until there is an order stating as such, you are still responsible for any debts made on joint credit cards, loans, mortgages , etc. If you have children, before the divorce is filed or final you are required to try to figure out custody arrangements by way of a Parenting Time Agreement. You will also need to do a Child Support Guidelines Worksheet. It does not mean you are free to get married but it also does not mean your spouse will be entitled to a large sum of money after you do get married. There are various factors the courts consider in determining whether the marriage was a true marriage and not a sham to protect assets. You are legally married until the divorce is granted. No one should act under the assumption that they are single until the judge has granted the divorce.