Lately, a lot of inquiries for the family law legal advice have revolved around divorce v. separate maintenance. Specifically, many people refer to a “legal separation,” or wonder if they can separate without the legal documents whatsoever.
Michigan law recognizes both divorce and separate maintenance, and both are no-fault, meaning you do not need to assert some kind of wrongful conduct of the opposing party to begin either of the proceedings. What is the difference between the two, you may ask?
Divorce and separate maintenance are very similar. The documents filed in both actions are essentially the same, the legal process for both, including the time guidelines (minimum 60 days without minor children, and minimum 180 days with minor children), motions, temporary orders, mediation, property division, custody, parenting time, and child support, spousal support, etc. are rather comparable. However, at the end of the separate maintenance action the parties are still married. What are the main legal consequences of this? Neither party can re-marry; the parties may still file joint tax returns; and sometimes, the parties may maintain common insurance (health, auto, home-owners, life) policies (although lately, insurance companies are moving toward disallowing joint policies for the “legally separated” spouses).
Divorce ends a marriage, giving both parties a clean slate, and either party can re-marry. With a judgment of separate maintenance, if the parties wish to no longer be married to each other, an independent divorce action needs to be filed to end the marriage. The costs of a separate maintenance proceeding, depending on the amount of animosity and issues to resolve, is usually similar to the cost of a divorce. And when I say cost, I don’t only mean financial cost. The emotional and time-consuming aspects certainly need to be taken into account. If your ultimate goal is a fresh start, I would normally recommend a divorce over a maintenance, unless the religious beliefs do not allow the parties to seek divorce.
Upon a motion of a party during the pendency of a separate maintenance case, the action can ordinarily be converted to a divorce case, and vice versa. Also, filing of a divorce does not put an end to the marriage. A lot of couples are able to work out their differences, and the case is later dismissed upon the reconciliation.
Finally, you do not need to have court involvement in order to separate. Lawyers and judges certainly do not have to be a part of your separation. However, if this separation is more than just a temporary break to work on some issues, if the value of property in the marital estate is significant, if children are involved, or if the relationship is abusive, you may want to have a court order that can be enforced in order to navigate this separation. It’s also important to know that there are certain time periods that are important for property division (date of filing v. date of separation), determination of custodial environment for the child-related issues, and the ability to seek assistance of the court and – sometimes – police to enforce the provisions of the agreement. In that case, you may want to have a court order.
Talk to an attorney to find out your options before making your final decision, to file or not to file, and what kind of action.