It’s common for couples to approach divorce with caution. Divorce is a lengthy, emotional, and complicated legal process that begins when one party files a petition for divorce with the local court. Typically, couples can work together to negotiate the terms of their divorce, but in cases where the lines of communication have closed, the judge can help resolve any outstanding issues in your case. Couples will need to determine how to handle property and debt division, child custody and support, and spousal support. At the end of your divorce, the court will terminate your marriage, and both spouses are considered single and free to remarry.
Legal separation is like divorce in that the court helps couples resolve the same divorce-related issues, but in the end, you’re still legally married to each other, despite living separate lives.
No. But, Michigan law offers a similar divorce alternative called separate maintenance. Separate maintenance is like legal separation in that the court (or couple) will resolve the same issues as divorce, but the couple remains married. (M.C.L.A. 552.7.) It’s crucial that opposite-sex parties understand that because you’re still legally married, the court may consider any children born after a judgment for separate maintenance to belong to the husband, even if someone else is the biological father. The process to rebut (overcome) this burden can be expensive and difficult. (M.C.L.A. 552.29.)
The process starts when either spouse files a motion (request) for separate maintenance with the court in the county where they live. (M.C.L.A. 552.11.) Because separate maintenance actions are like divorce, you’ll need to follow the same rules when you file. You’ll need to demonstrate to the court that you meet Michigan’s residency requirement, meaning at least one spouse has lived in the state for a minimum of 180 days before filing, and that the filing spouse lived in the county where they file for at least 10 days. (M.C.L.A. 552.9.)
The filing spouse must also provide the court with a legal reason—or, grounds—for the request. Michigan is a no-fault divorce state, meaning it doesn’t matter whose fault it is that the marriage is over, just that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. That’s just a fancy way of saying that the marriage is too damaged for either spouse to repair it. (M.C.L.A. 552.6.)
Your spouse will have the opportunity to respond to your request and can either agree to proceed with the separate maintenance process or ask for a divorce. If either party asks the court for a divorce, the judge will deny your request for separate maintenance and continue with the divorce process. (M.C.L.A. 552.7.)
Michigan law requires the court to impose a mandatory waiting period before the judge can act on your case. If you don’t have minor children, the judge can grant your request as soon as 30 days after you file. However, for couples with children, the waiting period increases to 180 days. During this “cooling off” period, couples should work together and decide how to handle property and debt division, child custody, visitation, child support, life insurance, retirement accounts, and spousal support. (M.C.L.A. 552.13, M.C.L.A. 552.101.)
If you can agree to the terms of your separate maintenance, you can provide the judge will a written agreement. If the contract is equitable (fair) for both spouses, and the custody arrangements are in the children’s best interest, the judge will approve your arrangement and finalize your case. If there are any unresolved issues, the court will decide for you.
It’s important to understand that although the process for separate maintenance is like divorce, if either spouse wants to convert the case to a formal divorce later, the process is complicated. Unlike some states which allow couples to “convert” the separation into a divorce, Michigan requires couples to start the divorce process from the beginning, regardless of how much time has passed since the separation. Neither method is free, nor is it quick, so make sure you a confident in your decision before you file for separate maintenance. On the other hand, if you and your spouse reconcile, you can revoke the separate maintenance order with the court. (M.C.L.A. 552.43; 10 Mich. Pl. & Pr. §70:111 (2nd ed.).)
Some couples practice a religion that prohibits divorce, and separate maintenance allows each party the same freedom as divorce, without the church’s disapproval. Other couples may not be satisfied that divorce is the right option, and separation gives them time to attempt reconciliation through counseling or other methods. There’s no right or wrong reason to choose separate maintenance instead of divorce.
If you and your spouse are considering divorce or separate maintenance but aren’t sure either path is the right one for your relationship, you can enter a trial separation. Trial separation allows the couple to participate in a dry-run for separation or divorce and gives each spouse time to reevaluate the relationship. Most couples can agree to the terms of the trial, orally, but those who would like a more formal agreement can put the conditions in writing.
The court doesn’t monitor trial separations, so if either spouse disagrees with the terms, the only recourse is to file for divorce or separate maintenance.
A separation agreement is a written contract that contains relevant information for your divorce or separate maintenance. Most couples choose to save time and money and work together to decide the terms, like property division and debt allocation, child custody and visitation, child support, and spousal support. But, if you can’t agree, the court will decide the terms for you.
In Michigan, a separation agreement in separate maintenance case remains effective until the court modifies it or creates a divorce agreement later.