Michigan Legal Separation Basics
Legal separation in Michigan is often used in lieu of divorce. It is essentially a way to get the court involved in your life, keeping the option of reconciliation, and avoiding the finality of a divorce. A legal separation in Michigan is intended to be a temporary setting of the rights of the parties, so as to give the couple an opportunity to either reconcile or see how their lives would be separate when the time comes for a final breakup. It is primarily intended for those people who want to live apart in the interim, due to practical concerns , but who do not wish to take the final step of divorce. The statutory authority for separate maintenance actions is found at MCL 552.6. Most divorce statutes mirror this section of law, as they are both based on the dissolution of a marriage. Should an agreement have been made between the parties, it will serve as a basis for the entry of an order for separate maintenance. If no agreement exists, the court may use the separate maintenance statutes to obtain more information and to make such awards as it believes are equitable under the circumstances. It should be noted that a legal separation is generally much less expensive, and quicker, than a divorce action.
Michigan Divorce Basics
Divorce is a formal legal action in Michigan that is initiated by one spouse filing a complaint with the court. The filing is the first step in a divorce proceeding, which is a legal process of terminating the marital relationship and dividing the assets and debts of the marriage. In Michigan, there are two main legal grounds for divorce: one spouse’s fault or irreconcilable differences. When "fault" is cited, it refers to things like adultery, extreme cruelty or abandonment. Anyone wanting a divorce in Michigan should be aware that the state is a "no-fault" divorce state.
Before dissolving the marriage, the spouses are required by law to undergo a 180-day waiting period. This is referred to as the "cooling off period". This barricade, however, is quite often waived if the couple has no minor children. Once the six-month period has passed, there may then be a court hearing where the spouses could be given a divorce.
Much like a legal separation, a divorce decree establishes legally binding rules related to child custody and parenting time, child support, spousal support or alimony and property division. However, unlike a legal separation, an absolute divorce terminates the marital relationship between two spouses and ends all legal obligations between them.
That being said, if there are children born of the marriage, parents who are divorcing will still have legal obligations that exist. The only difference between a divorce and a separation is that when spouses separate, they are still legally married to each other with all of the responsibilities and rights outlined by law. This is absolutely NOT the case when a divorce occurs.
In Michigan, the divorce court will divide all marital property between spouses, but this does not mean that a judge will divide everything evenly. Michigan courts follow the principles of equity, and the judge will distribute property based on what he or she considers is fair in each individual situation.
Legal Separation and Divorce: How They Differ
In considering this possibility, it’s helpful to compare the two options in terms of certain key factors. The most striking difference is the finality of divorce. The process ends the marriage. Legal separation, on the other hand, essentially keeps your marital status in a suspended state. You are still legally married, even if living apart.
Another important distinction between a legal separation and a divorce is financial. In a divorce, the court will divide marital assets, which include most property acquired during the marriage (minus certain excluded property such as inheritances) between the spouses. In Michigan, asset division is based on "equitable distribution," meaning that what the court deems is fair given the circumstances. Either spouse can receive ownership of property, and adjustments may be made between assets and debts. For example, one spouse may get the house, while the other keeps savings accounts and pays off joint debt on credit cards.
Typically, a legal separation does not divide property; instead, it determines how the couple will manage finances while living apart. It can include agreements on issues such as paying bills and handling child support or spousal support. Of course, over time, you may come to realize that a legal separation is not enough to end your marriage. That can happen too. Once you have a legal separation, you can still choose to file for divorce.
When is Legal Separation Better Than Divorce
When a legal separation may be preferable to getting a divorce
There are situations where it may be beneficial to pursue a legal separation over a divorce. While the legal process may be similar in both, there are some significant differences. Legal separation does not dissolve the marriage and, as a result, many of those procedural steps, such as service of process, filing for relief with the court, and having an attorney represent your best interests, remain necessary.
There are times that the dissolution of a marriage is against personal or religious beliefs. If you and your spouse share similar convictions and can agree to terms of a legal separation, then this may be the route to pursue.
A legal separation may also be necessary for those couples realizing a financial reality regarding their insurance premiums. For each household, it is cost-effective to maintain that coverage through one employer. A legal separation may be a wonderful tool for maintaining those policies without the inconvenience of a divorce.
It is also important to remember that a legal separation is often a state of being, rather than a defined status in the eyes of the law. Many couples elect to use an intermediate separation as a trial period to see if living apart is the right solution for their family.
A legal separation also affords an additional layer of time to reach a settlement. If the split is amicable and both people are committed to an eventual reconciliation, then a legal separation affords a unique respite from the fight of a divorce.
The Process of Separation and Divorce in Michigan
The procedural steps for a legal separation and a divorce in Michigan are virtually the same, since the court system does not provide for legal separation or separation agreements. Either way, a complaint must be filed in the appropriate court that states the facts of the relationship between the parties and requests the court to grant relief. Additionally, in the complaint for a divorce formal (and less formal) relief will be requested by the one file stating which type of relief is requested . Most importantly, literally, the filing of a claim for legal separation is no more than a request for the court to set a date for a hearing, before a judge, to determine if the parties are entitled to such relief. A summoned will be issued and delivered to the other party and just like a divorce, a copy of the summons and the complaint will need to be delivered to the other party.
Effect on Money and Property
When it comes to finances in Michigan, a legal separation and a divorce are quite different, and both can be substantial considerations when deliberating the best course of action for you and your spouse. A couple that decides to legally separate must address the same matters as they would if they were obtaining a divorce. They must decide how their assets will be divided and who will pay support on a monthly basis. If they cannot agree, a court will determine how the marital estate is divided. What is different through a legal separation in MI is that you and your spouse remain married.
When you obtain a divorce, all assets must be divided even if one or both partners prefer to keep them. Any debt that is incurred while married is also typically divided between spouses. A legal separation, on the other hand, allows partners to divide assets voluntarily. These assets include cars, homes, pensions and retirement accounts. The spouse who gets a retirement account, for example, must give up something of equal value to the other spouse. In this way, partners have the potential to keep their assets in a voluntary separation rather than in a mandatory divorce.
A divorce in Michigan means that once you terminate the marriage, it is over. Each spouse is free to re-marry whomever he or she wants. A separation allows you to live separately while remaining married. If you were to reconcile, you could easily do so and get back to the way things were before the breakdown of the relationship. In some cases, a couple decides to separate because it wants to try and fix the problems in the relationship. This occurs mainly with those who have children and do not want to move forward with a divorce until their children are older.
Obtaining a legal separation means you will probably both see changes in how you spend your money. Your bank statements will reflect two households and two separate lifestyles. With a divorce, you will prepare for the separation and ultimate dissolution of the relationship not only now but in the future as well. You will divide assets and debts, but a separation allows you to maintain many of the items you may wish to keep if you fall out of love.
A final consideration is the effect of either a legal separation or divorce on taxes, social security and retirement plans. You may find that since you will now be living separately, the IRS will tax assets differently, causing the result of your separation or divorce to differ than if you were still married.
Effect on Child Custody and Support
Just like divorce, custody and support issues are addressed in a legal separation, and often times your separation stipulations will be the same as those for divorce. There is no difference in treatment for custody and parenting time by the Courts in Michigan whether in a case of divorce or legal separation. The court may appoint a domestic relations mediator to attempt to resolve custody issues through negotiation, and if settlement is not reached, the judge will proceed to rule on custody decisions.
The judge will consider the best interests of the child in determining custody arrangements. There are 12 factors defined by statute that a judge will consider, as well as an additional factor "any other factor" that are appropriate for the case.
For those who have a better sense of their separation agreement than if they were going through a divorce, the simplicity of a legal separation may be appealing. A legal separation will be useful for those individuals who don’t want to end their marriage, but are living separate lives.
Reconciling After Legal Separation or Divorce
While legally separated couples can move forward with their lives, they can also reverse their legal separation agreement in Michigan by filing for divorce. In Michigan, you cannot become "un-divorced," except under very limited circumstances through annulment. However, if a Michigan couple who is legally separated has decided that they want to reconcile and live together again as a married couple, they can do so. Legal separation is most often a step that people take if they anticipate getting a divorce. However, this does not mean that a couple cannot change course after filing for legal separation. If circumstances have changed and a couple wants to end the legal separation term and continue in their marriage, there are measures they can take to work toward this goal.
There might be questions as to how this reconciliatory procedure works, but it is considerably simple and straightforward. Cancellation of the legal separation agreement requires a joint petition, copies of the separation agreement and judgment, and a filing fee. Upon completion of the petition process, couples will receive judicial approval to resume in their marriage. Once the annulment is approved , the couple will receive a new marriage certificate calling them married once again.
While reversing legal separation might seem like the best choice to avoid a divorce, this might not be the case. Going through a legal separation can be a lengthy and costly process. Some Michigan courts even require mandatory mediation before granting a legal separation. Mediation takes time, can result in disagreements between the parties, and encourages additional attorney fees.
In some cases, a couple might simply want to annul their marriage, or dissolve the marriage entirely by going through a divorce. Even though legal separation could be ending the marriage, very few couples choose to utilize legal separation before divorce. This is due to the unusual nature of legal separation, which most Americans regard as a symbolic and final step toward divorce. After a legal separation, ending the marriage seems almost inevitable. In these cases, the couple should consider seeking advice from a divorce attorney, as filing a joint petition requiring annulment or divorce might be the best option.