Spouses might decide to live apart for a while for any number of reasons. They may be unwilling to totally pull the plug on their marriage because of finances, issues with insurance or children they have together. In Michigan, a period of separation has little effect on an eventual divorce. But how you've memorialized the terms of your separation – if you've even bothered to do so at all – can ultimately have an impact on your divorce proceedings.
Although Michigan law doesn't recognize legal separation, the state does recognize separation agreements. Spouses can arrange to have the terms of their separation governed by either agreement or court order. If they enter into a separation agreement, sometimes called a property settlement agreement in Michigan, its terms are enforceable as a contract. The agreement doesn't expire – it can last indefinitely or until either your or your spouse decide to file for divorce.
Michigan's other provision related to legal separation involves filing a complaint with the court for separate maintenance. This procedure is virtually identical to that required if you want to ask the court for a divorce. The judge can order provisions for support, custody, division of property and assignment of marital debts, but your marriage isn't technically over, so neither of you can remarry.
Read More: What Are the Benefits of Legal Separation Vs. Divorce?
Separation as Divorce Grounds
If you or your spouse decide after years of separation that you now want a divorce, you can't use your separation period as divorce grounds in Michigan. Some other states provide for this, but Michigan recognizes only one ground for divorce – that the marriage is irretrievably broken and there's no chance of reconciliation. If you and your spouse are in agreement, you can generally give some brief testimony in court and end your marriage if you already have a signed property settlement agreement or you have a judgment for separate maintenance that resolves all marital issues. In some Michigan counties, judges might ask you to prove that your marriage has broken down by offering testimony or evidence. If you've stopped living together, this would be a good indication that the marriage isn't working out.
Debts and Property
Reaching a property settlement agreement or filing for separate maintenance establishes your separation date, which can be important when you ultimately decide you want to divorce. Under Michigan law, the date you and your spouse separate marks the cutoff for equitable distribution claims to property. For example, if you purchase an asset for yourself, with your own money, post-separation, the court views this as your separate property and your spouse is not entitled to a share of it. If you do the same thing before the established separation date, the asset is subject to division in a divorce. If you and your spouse simply move into separate homes and live that way for years, without an agreement or court order governing the situation, Michigan law requires that the judge determine whether you were actually separated during this time. Moving into separate households may not be enough if it appears you continued a marital relationship despite your living arrangements.
The Divorce Judgment
Typically, the terms of your property settlement agreement or judgment for separate maintenance will carry over into your divorce judgment. If nothing else, they set a precedent that might be difficult to overturn – if successfully you've lived under these terms for years, or if property has already been divided, you'd have to present the court with a very good reason to undo these terms. If the terms have worked out well for you, such as those regarding custody or support, this can streamline the divorce process considerably. If you haven't separated through any official means, either by judgment or agreement, you'll have to start from scratch to resolve your marital issues before you can divorce.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.