Defining What Legal Separation Means in Michigan
In Michigan, a spouse can seek to have the Court grant them legal separation. To clarify, under Michigan law, separation of the parties does not mean that the parties have to be completely physically separated. The requirement for "separation" under Michigan is that the parties no longer live together in the same residence.
A "legal separation," under Michigan law, is where a spouse files a Complaint with the Court wherein the Court makes orders regarding parenting time, parenting time, property distribution, alimony, etc. Most importantly, with a "legal separation," the parties are still legally married despite the Court making an order to separate them. By way of comparison, a divorce completely severs the parties rights of marital assets as well as any relationship there may be.
To obtain a legal separation in Michigan, a spouse must file a Complaint of Separate Maintenance with the State of Michigan. The residence requirement is that a spouse must have been living in Michigan for at least the 180 days prior to filing the Complaint and that they have lived in the county in which the Attorney filed the Complaint for the 10 days before they filed the Complaint.
After filing the Complaint of Separate Maintenance , the filing spouse must then prove to the Court on a show cause hearing that they have been properly served with the Complaint. Once the Court has decided that proper service has been made, the Court will then enter a request for the parties to make financial disclosures to each other. Once the Court has established temporary orders, it will then schedule a case evaluation hearing to determine what offers the parties will make for resolution. In short, the attorney and spouses will meet with the case evaluator to discuss the merits of their case and the case evaluator will give them an opinion regarding the case. From that point, the spouses will make an offer based on their attorneys and the case evaluators recommendations. In the end, it is up to the parties to agree on property distribution, debt distribution. pension value, alimony, attorney fees, etc.
Keeping the Good Components of Marriage
Separating spouses may continue to receive benefits that would end if a divorce proceeds. It may be easier for a spouse to retain medical benefits if the parties separate rather than divorce. This is particularly true if the spouse has a particular health issue. COBRA allows a spouse to continue medical insurance coverage for up to 18 months following the start of a legal separation. If insurance coverage is obtained through employment and there is no separation, the spouse may not be eligible for COBRA under the Consolidated Omnibus Budget Reconciliation Act. If the employee spouse is ineligible for COBRA but the employer offers the spouse alternative healthcare coverage, the continuation of benefits may be more challenging if the couple proceeds with a divorce rather than a separation. Many times, when a couple separates and they have children, one or both spouses will receive tax benefits from the children. Most payments from the IRS, such as the Child Tax Credit and Child Dependent Credit, are available to the custodial parent. The parent who has the children more than half the time is considered the custodial parent. Tax exemptions can be transferred between the parents as an option through the IRS. The child dependent credit can also be transferred but only one parent can claim it as a deduction on their income tax return. Couples who divorce often split this deduction with one claiming the first year and the other claiming the second year. As a result, each parent does not get the full credit. When a couple separates and they share far more than half of the parenting time, there is no way to transfer the credits so each could get the full amount. Instead, both get a partial share of the credit, and one giving up the entire benefit is not an option under current federal law. Another benefit of legal separation instead of divorce can be found in military benefits. If a military couple continues a legal separation, one spouse may be eligible for benefits. Under a 20/20/20 rule, if a marriage lasted for at least two decades and the spouse or former partner served in active duty for a minimum of 20 years, the spouse may receive eligibility for healthcare and some other benefits. However, an honorable discharge is required for eligibility. By preserving marital benefits, it can be easier financially for a spouse to undergo the legal separation rather than divorce. Divorce often means loss of benefits that otherwise provide significant financial and health-related assistance to a spouse.
Taking Time to Make Things Work
In some respects, this may be the primary and longest-lasting benefit of legal separation. For some people, legal separation enables them to both get out of the marital relationship, yet also consider the possibility of a reconciliation. However, it is often difficult to think in realistic terms about what would happen after divorce. In some cases, the situation between the spouses may improve. They may see that they had been taking each other for granted. They may talk through some of the issues that split them apart, and try to improve their relationship. If there are children involved, they may reconcile for their sake. Sometimes having the time apart helps the couple to realize those things that really brought them together in the first place, and perhaps they are able to find common ground again. On the other hand, sometimes the separation shows with crystal clarity that the marriage is truly over. Whereas arguable or minor issues were exacerbated or hidden by the daily trials of the marriage, the time apart really helps the parties address the issues. Another dimension to this is that having an understanding of how the divorce, custody, property division and other aspects of a divorce will play out may help the parties see the potential consequences of their actions, and perhaps the need to reconcile becomes more apparent. In most cases, when getting a divorce, the only way to reconcile is to simply call off the divorce. This is not the case with a legal separation. If the parties get back together, then the case is dismissed and they go back to married life. If either party gets a divorce, then the legal separation is moot.
Financial Stability and Responsibility
While many are aware of the concept of spousal support, there are often misconceptions about it. Most notably, many people operate under the assumption that spousal support can only be awarded if one is legally divorced. However, this is incorrect. When a legal separation takes place, supported by an enforceable separation agreement, the obligation for both parties to provide support is legally determined at that time. As such, if you have additional financial obligations to your spouse and want them to be legally verified so that they cannot be later contested, legal separation can be an ideal process through which to establish this. In this way, a legal separation can provide you with financial security by making sure your full obligations to your spouse are enforced.
Arranging Custody and Child Support
In Michigan, a legal separation does not have a defined legal status; it is usually a mutual decision that a married couple makes for a period of time- to see if time apart will help them decide whether they want to divorce or whether they can succeed at reconciling the marriage.
Although, there are many reasons to get a legal separation; sometimes a couple separates to gain leverage over spousal support, to become entitled to spousal support, or to acquire legal notice to find employment or elsewhere. One of the most meaningful reasons is to obtain a court order to establish child custody and child support arrangements.
Separating to Establish Child Custody & Support Arrangements
While a legal separation does afford a couple the flexibility of being married while obtaining a court order to establish child custody and support arrangements; it also provides the ability to obtain child support , and in turn spousal support, when one spouse is struggling to make ends meet and perhaps has little income.
Um; Isn’t That the Same as a Divorce?
No, a legal separation is different from a divorce in some ways and similar in others. A legal separation is not final. The couple could reconcile if they decide to after some time, or they may realize they want to proceed in filing for a divorce.
Child Support & Spousal Support
While child support is directly related to the provision of care for the child, spousal support is intended to alleviate the financial burden on one spouse. Although spousal support is not always ordered, in the event that it is awarded, the court will determine the award amount based on applicable Michigan child support guidelines.
Faith-Based and Personal Considerations
For some people, the choice of legal separation over divorce is based on religious or personal beliefs. These considerations can keep you and your spouse together in some way without the risk or judgment of outside family members and friends. The religious doctrine of your faith might specifically forbid you and your spouse remarrying after a divorce. Legal separation can often be acceptable under religious law. Many Christians feel that religious law forbids divorce. In this case, you may choose legal separation as a way to still legally separate from each other while not breaking your religious laws. This may come into play with Muslims, Catholics or members of the Church of Jesus Christ of Latter-Day Saints (Mormons). Like religion, some cultures or societies also see divorce as offensive. If it is more socially acceptable for unmarrieds to live together in your society than for previously wedded couples, legal separation might be the best choice for you and your family.
The Steps in a Legal Separation
The steps for legally separating from a spouse are not codified in the Michigan statutes. However, the procedure to obtain a legal separation is implicit in the provisions that govern divorce cases. As a practical matter, to secure a legal separation spouses must file a complaint for separate maintenance with the Circuit Court in the county where either spouse resides. A complaint must set forth at least the following information: (i) the fact and date of the marriage, (ii) the date of separation, (iii) the names of any children, (iv) the facts showing that the court has jurisdiction over the parties (in a separate maintenance proceeding a 1-year residency requirement exists), and (v) a request for a separate maintenance judgment. In Michigan, unlike some other jurisdictions there is no separate maintenance form, so pleadings must be drafted by an attorney or prepared by filling out an entering information onto a form.
Once the complaint is filed with the court, the parties will go through the normal court processes, just as they would if they were seeking a divorce. For example, the parties will likely be ordered by the court to attend case evaluation, mediation and to exchange written discovery. In addition to those regular processes, some cases may require special procedures to protect assets or provide for the care of children, such as conservatorships or guardianships.
As discussed earlier, a separate maintenance proceeding has the potential to resolve issues that may arise during the pendency of divorce proceedings, such as temporary custody or parenting time schedule, temporary support, the presumptions for a spouse having access to the joint residences or credit cards.
The Differences Between Legal Separation and Divorce
Legal separation and divorce are both legal processes that dissolve a marriage, but they differ in significant and important ways. The choice between them can have major consequences for the future. A legal separation is not an end to the marriage, but a legal proceeding that seeks to resolve some or all of the issues that one or both spouses may wish to address. When better versions of this blog exist, I will just add them in here.
A benefit a legal separation, as opposed to a divorce, is that it is easier to return to a standard of living that at least somewhat resembles the one you had during the marriage if you remain legally married. In Michigan, you can get certain benefits through your spouse’s insurance if you remain married. A legal separation allows you to sort out issues without necessarily incurring the finality of divorce. If, on the other hand, the issue of remarriage is the real driving force behind your interest in legal separation, you should know that recent developments across the globe made clear that victory can be achieved without the legal separation stepping stone. In a landmark 2015 decision, the European Court of Human Rights ruled that couples with legal separations are considered "married" until they formally divorce and , therefore, are entitled to divorce-related financial claims and protections. Michigan courts have almost all but ignored this huge ruling, even though it has been several years since it came down. Legal separation can lead to a stalemate, too. Without taking steps to work out at least some issues, individuals can become immobilized into an existence of depression and resignation as spouses continue to attempt to work out unresolved matters that could potentially be solved. One of the most important things to keep in mind about a legal separation is that it is not binding upon the court. Although a judge will sign off on the separation agreement, the judge does not lose jurisdiction over the matter once the case moves forward, as Michigan courts have held. This means that if one party violates the terms of the agreement, the other party may file a formal complaint against the spouse with the court to hold him or her in contempt. Divorce offers the finality of permanent separation and ending of the marriage, but separation might be appropriate in particular situations. The key is to remember that every situation is unique.