Separation vs. Divorce in Michigan

By Mary Jane Freeman
Michigan spouses have the option of legal separation or divorce.

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In Michigan, spouses have the option of filing for either legal separation or divorce. However, legal separation is known as separate maintenance in the state and is often chosen in lieu of divorce for religious, insurance or tax reasons. Regardless of whether you file for separation or divorce, the process is relatively the same for both. Once all marital issues are resolved, like property division and child custody, the court will issue a judgment governing the rights and responsibilities of each party.

Petition

In Michigan, whether you are filing for separate maintenance or divorce, the process begins by filing the appropriate petition in the circuit court of the county where either you or your spouse lives. If you're filing a separate maintenance action, you are not required to live in the state or county for a specific amount of time before filing. But if you're seeking a divorce, you must live in Michigan for at least 180 days and in the county where you file for at least 10 days prior to filing. Michigan is a no-fault state. This means neither spouse is required to cast blame on the other to obtain separate maintenance or divorce. Instead, you only cite irreconcilable differences as your reason for the separation or divorce on your petition. In addition to listing this no-fault ground, you also list any requests for property division, alimony, child support and custody. Once you file your petition, you must serve a copy on your spouse who must then submit an answer to the court.

Property Division

Once your spouse submits his answer to your petition, or the time period for filing an answer passes, the separation or divorce process begins. To divide property, the court must first distinguish between separate and marital property. Marital property is property either you or your spouse acquired during the marriage. Separate property is property acquired before the marriage or during the marriage by inheritance or gift. Only marital property is divisible in separation or divorce actions; separate property is typically returned to the spouse who acquired it. Michigan follows the equitable distribution method, which means the court divides marital property in a manner that is fair and just, though not necessarily equal. To do this, the court will evaluate a variety of factors, such as the duration of the marriage, the spouses' ages, health, needs, earning capabilities and any other relevant factors.

Spousal Support

In Michigan, spousal support, also known as alimony, is available in both separation and divorce actions. The court can award it on either a temporary or permanent basis, paid in a lump sum or over a period of time. To determine whether a spouse is entitled to spousal support and in what amount, the court evaluates several factors, including the duration of the marriage, the couple's standard of living established during the marriage, property awarded to each spouse during the distribution stage of the proceedings, the ability of the non-recipient spouse to pay spousal support, the spouses' needs and health status, and the requesting spouse's age and education level.

Custody

If you and your spouse have children, the court will establish a custody and child support order as part of the separation or divorce action. Michigan recognizes both legal and physical custody, which the parents can share, or the court can award both or either to just one parent. Legal custody is a parent's right to make important decisions concerning a child's upbringing, such as schooling, religion and healthcare. Physical custody is a parent's right to provide a home for the child. Typically, Michigan courts award parents shared legal custody and one parent physical custody, although a court will sometimes award shared physical custody as well. When one parent has sole physical custody, the other parent is typically granted parenting time, or visitation, and ordered to pay child support to the custodial parent. The court decides custody based on the best interests of a child, which means it will look at a variety of factors, including the relationship between the child and each parent, the ability of each parent to care for the child, the child's preference, mental and physical health of all parties, and any history of domestic violence.

Judgment

Once all marital issues are resolved, the court issues a judgment of separate maintenance or judgment of divorce. If you and your spouse resolved all marital issues by a settlement agreement, the court incorporates this agreement into the judgment if it finds the terms satisfactory. If you filed for divorce and have children, the court will not issue a judgment until six months pass from the date you file the petition; if you don't have children, only 60 days must pass. There is no such waiting period for separate maintenance actions. However, you cannot remarry if you have a separate maintenance judgment, unlike with divorce. If you later decide to divorce, you must start a new divorce action, but the court will likely incorporate the terms of your separation judgment into the divorce judgment.

About the Author

Based on the West Coast, Mary Jane Freeman has been writing professionally since 1994, specializing in the topics of business and law. Freeman's work has appeared in a variety of publications, including LegalZoom, Essence, Reuters and Chicago Sun-Times. Freeman holds a Master of Science in public policy and management and Juris Doctor. Freeman is self-employed and works as a policy analyst and legal consultant.

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