What is a legal separation in Michigan?
Legal separation in Michigan is a little-known yet vital aspect of the state’s divorce laws. The most common alternative to a legal separation in Michigan is a simple divorce. However, many people do not realize that for some, a legal separation is a preferable option. Understanding what legal separation really means is the key to knowing when filing for separation is preferable to submitting for divorce. Legal separation in Michigan is intended to be a "halfway point" between being single and fully married. Legally, it is identical to a divorce with one key distinction: you cannot remarry while legally separated. It acts largely as an alternative to full divorce to allow people to separate themselves without dissolving their legal relationship as a couple. Legal separation has many of the same powers and implications as a divorce. For example, the law allows the court to address alimony, spousal support, division of assets and custody arrangements just like a divorce. The only primary difference is the stated intent: couples choose to legally separate in hopes of reconciliation sometime in the future , whereas divorces are almost always intended to be the end of the relationship. There are situations in which legal separation is the preferred choice for a person with a troubled marriage. Because legal separation keeps you lawfully married, separation allows each spouse to maintain any benefits of marriage that may have otherwise ended in divorce. For example, employer-sponsored insurance policies, retirement savings accounts and tax returns normally differ from a couple’s married filing status to their single status. Because the legal relationship remains intact while separated, these benefits usually remain unaffected. Legal separation also allows you to maintain custody of your children while preserving the right to determine if you want to remain married in the future. If you are interested in the possibility of eventually reconciling with your spouse, separation offers you the best of both worlds. Some people spend years separated before deciding to divorce—it allows them time to reevaluate their beliefs and see if they can rebuild their marriage, and also helps maintain the family structure for their children.
Michigan legal separation vs. divorce
In Michigan, one of the biggest differences between legal separation and divorce is the legal status of your marriage. Legal separation means you are still married, although perhaps not in the traditional sense. A divorce, however, actually terminates the marriage. You are no longer husband and wife and have no legal connection to each other.
In legal separation, because you are still technically married, you cannot marry a new partner. Divorce, on the other hand, severs this connection and allows you to remarry if you so choose.
If you are separated, you may be able to file joint taxes with your spouse, depending on whether you meet the requirements to qualify for head of household or married filing jointly options. If you divorce, filing taxes with your ex is no longer an option. You will have to file your taxes independently and if you have children, may qualify as head of household if you meet the requirements.
As a legal separation helps preserve the marital property, if it was established prior to legal separation, such a property may be exempt from division in the divorce. Because marital property acquired prior to legal separation remains under the purview of the separation agreement, it may be excluded from divorce.
As discussed above, in legal separation, you remain connected to your spouse and, therefore, you are not free to engage in new relationships. Conversely, if you get divorced, you are free to date. This may have implications for child support and custody situations.
Just like legal separation, the couple’s assets remain community property after divorce.
How to get a legal separation in Michigan
The process of obtaining a legal separation in Michigan begins with the filing of a Summons and Complaint with the circuit court for the county where at least one spouse resides at the time of filing. Both spouses must have been domiciled or had a residence in Michigan for at least six months before filing. A "Just Cause" statement is also required, which demonstrates that there is a reason the parties should be legally separated. The "Just Cause" statement generally explains the reasons the couple is seeking a legal separation. After filing the necessary paperwork, the court will issue a Summons, which is used to accomplish service. Service is the process by which a copy of the complaint is formally delivered to the other party. In Michigan, a spouse is typically served with the Summons and Complaint by a sheriff, police officer or private process server. Once that has been accomplished, the person serving the papers files a Proof of Service with the court. The Proof of Service states how the Summons and Complaint were served and on what date. The Plaintiff’s attorney will then file an Affidavit of Default after the case becomes a default because the Defendant failed to file an answer or a counterclaim within 21 days of being served with the Complaint. Before trial, the Plaintiff is also required to disclose a witness list, exhibit list, list of documentary evidence and list of proposed marriage settlement terms.
Reasons for legal separation instead of divorce
There are many factors that may lead a Michigan couple to choose legal separation over divorce. Frequently, those couples are adhering to religious tenets that either explicitly forbid or do not approve of divorce. The Catholic Church, for example, reserves annulments for the most extreme cases. Considerations regarding finances may also impact the decision. Obtaining legal separation is often less expensive than divorce, and provides security when a spouse is not eligible for or does not wish to seek Medicaid. This can be the case if one spouse needs long-term care in an assisted living facility.
In addition to the above, many parents understand that their children often have difficulty handling the realities of divorce, particularly when contemplating phasing from one household to two. While not the end of the road, legal separation arguably reflects a mitigating approach to some of the struggles kids face. Until they no longer need their stems and roots from your home, they benefit from legal separation on many levels. Separation generally means their parents are living apart, while maintaining a cohesive front on parenting matters. Even better, the court will often issue orders for child support and parenting time to ensure that kids are never deprived of physical and emotional contact with one or both parents.
Finally, separation can allow parents to identify the issues that impact one parent’s capacity to parent well. For example, does a parent struggle with addiction to drugs or alcohol? Perhaps his or her anger management issues present a fundamental threat to the welfare of the children. When separated, the court can provide the family with the opportunity to address these issues within the context of a controlled environment. If resolution does not occur during the separation, divorce may become the next step in the process.
Legal impact of the separation agreement
For those who are seeking to move forward outside of marriage but are not sure about the path to take, Michiganders have been generally accustomed to going through the divorce process, as discussed above. But, for a multitude of reasons, in practice in Michigan I have seen many people who want to take one step back prior to divorce – which is legal separation. This step may be taken either positively, such as an individual coming to the realization that a divorce is inevitable and making arrangements for a divorce when the time is right. Or, negatively, due to one person forcing the other against their will into a separation.
Although legal separation is not required prior to a divorce being filed, it is a process which Michigan Courts, broadly, do recognize and have provided for by statute (MCL 552.7). However, the formalities (i.e., entering into a Decree of Separate Maintenance) are not undertaken very often. More often, it is the parties to the separate maintenance themselves who write down the terms of their agreement of separation and move on with those terms, but without a formal decree from the Court. However, if such action is undertaken, such a document will not carry the force and effect of a judgment under Michigan Family Law.
So, if parties choose to move forward with a legal separation, what does this actually entail? Typically, a separation agreement will provide for some – if not most – of the same issues as a divorce. Most commonly, these issues are child support, child custody, spousal support (alimony), and property division.
Child Support
Even if the parties have no children together and are being separated, this may have to be addressed. Michigan Child Support Guidelines detail how to obtain child support, the amounts that are due, and how to make the payment (among other issues) .
Child custody
If children are born to the parties and they are separating, or one person has children already born from another relationship, custody may very well have to be addressed. Custody can be a very contentious issue. A parent must overcome the "established custodial environment" with the children before the burden shifts to the parent to show why a change would be in the best interests of the child. These factors are set forth in Michigan Statue and take into account numerous factors (i.e., the love, affection and other emotional ties existing between the parties and the child, whether the child has been cared for by parents, and the capacity and disposition of the parties to give the child love, affection, and guidance). Thus, many fathers who are involved are considered custodial parents, but with regard to many fathers, a legal separation may not be enough of a control for more permanent control over their parenting time.
Generally, we see the following terms in a separation agreement:
Alimony
In Michigan, alimony is used interchangeably with spousal support and is defined as "an allowance made by one spouse for the support and maintenance of the other". In Michigan, there is no set formula for how to calculate spousal support and is decided on a case-by-case basis. Factors that a court will consider are the life style of the parties, income and source of income, relative earning abilities, age, health, contributions to the joint estate, past relations and conduct of the parties, general principles of equity and fairness, and all relevant circumstances. These factors make it difficult to plan up front, but will be something you will want your lawyer to take note of at the time of separation.
If you were to provide for spousal support payments, they would be ordered in the same way as you would in a divorce (discussed above).
Converting a legal separation into a divorce
In Michigan, couples who have obtained a legal separation may decide to convert their legal separation into an absolute divorce. Obtaining a legal separation in Michigan does not terminate the marriage. So if a couple wishes to be legally bound to one another no longer, they must convert the legal separation into a divorce.
If you and your partner are legally separated, it is important to consult with a lawyer. Both parties must agree to end the marriage, but once that agreement is in place, the process is straightforward. All the couple needs to do is close the case for the legal separation and open a divorce case. A divorce is similar to a legal separation in many ways, although it does mean that the couple is no longer legally bound to one another.
The divorce process can take some time to complete. If all goes well and there are no complications, it can be completed in as little as four months. Note that a divorce case is separate from the legal separation case. They are different cases opened with different filings. Even if a legal separation was not court sanctioned – even in a church – couples who are legally separated can also pursue a divorce. You do not have to go through the courts to obtain a legal separation; you can stay married while living separate and apart, but it may not have the same legal implications.
The timeline for obtaining a divorce after a legal separation will be expedited if both parties agree to it. However, if the divorce is contested, the process can take significantly longer. The minimum amount of time is 60 days. In cases where abuse or neglect of children is a factor, the divorce can be finalized more quickly. There are circumstances that extend the process. If, for example, one party fails to comply with a court order, whether to provide financial support or to provide documents needed to finalize the divorce, then the judge can grant a default judgment to the other party who is complying with the court order.
Unfortunately, there are cases where a legal separation makes one party feel like it is "almost divorced," and they may not accept the process. This may lead to a contested divorce.
If you are considering a divorce with or without prior legal separation, make sure you speak to a family law attorney about the process.
Impact of legal separation on taxes and benefits
Obtaining a legal separation in Michigan does not inherently affect your tax status; it’s up to you whether you file separately or as a domestic couple. Filing status can be confusing and matter to your overall tax liability, but in most cases it could be beneficial to file jointly. This can be useful if there’s a wide disparity in income; the spouse with the higher income will delay the payment of taxes on the unspent support money the lower-income spouse receives. For couples who have separate incomes but file jointly, two exemptions still apply for tax liability.
In many ways, however, legal separation can complicate filing. A legal separation settlement includes information on the division of finances that the tax code may not recognize. For instance, in Tax Code Section 71(b), alimony is defined as "periodic payments" which, on the tax form, refers to a "fixed sum of money." If a spouse pays separate bills as part of a separation agreement, those payments may not count as alimony for tax purposes. If that is the case, the spouse who received the payment will have to declare it as income. Both partners will be shortchanged if there’s not an identifiable line in the separation agreement itemizing support payments as alimony.
With regard to health insurance, a legal separation does not inherently change your coverage or rate. However, dependents under a Michigan court order may not qualify for benefits under the other spouse’s plan. In other words, the spouse may not be able to take them off their plan once a legal separation is obtained . This is not true for Michigan divorce and is often what drives people to separate rather than file for divorce. Because Michigan is a "no fault divorce state," your spouse may not agree with your reasons for splitting up. For couples who have children together but do not intend to divorce, this should be of particular concern. The specifics will vary by spouses’ terms of health insurance. Your lawyer should have considerable experience with health insurance aspects in legal separation cases, enabling them to identify issues and offer solutions in the context of your unique situation.
Retirement plans are also affected by legal separation in Michigan. The United States Department of Labor Employee Retirement Income Security Act ("ERISA") offers basic protections to every American worker. Those protections enable separation of one person’s retirement from his or her spouse’s and vice versa. Federal law requires qualified domestic relations orders ("QDRO") to be filed with regard to a retirement plan so that each spouse has access to a portion of retirement money when dividing assets. In addition to establishing a QDRO, a spouse can review his or her ex’s work history to request a Social Security benefit checkup. If you worked together at one company for the duration of the marriage, you visited other companies and/or worked as a self-employed individual during that span, the company history will be useful in terms of providing benefits information.