Married couples in Michigan who are struggling with their marriage may not realize legal separation is an option. It’s just that the state calls it “separation maintenance”.
In this article, we explain the differences between divorce and legal separation in Michigan and how each process works. This information may help you confidently decide which path to pursue.
Divorce and legal separation (separate maintenance) in Michigan
Divorce and legal separation are legal concepts related to the termination or alteration of a marital relationship. In both processes, the spouses often need to reach an agreement (or have a court decide for them) about issues such as child custody, child support, spousal support and the division of marital property, assets and debts.
The primary difference between divorce and legal separation is the legal result of the proceedings:
- Divorce, also referred to as “dissolution of marriage,” dissolves the marriage.
- Legal separation, referred to as “separate maintenance” in Michigan, allows couples to live separate lives while remaining legally married.
Under Michigan law, although divorce and separate maintenance are distinct legal actions, they follow roughly the same process.
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Michigan divorce laws
In divorce actions, one party typically initiates the legal process by filing a complaint in the circuit court where one or both parties reside, stating the legal grounds (reasons) for the action. Notably, Michigan is a no-fault state, meaning that neither party has to prove any fault or wrongful conduct for the divorce to be granted.
Along with the complaint, the filer must pay a fee. Currently, there’s a $150 filing fee and a $25 electronic filing service fee, for a total of $175. If your divorce involves child custody or parenting time, you have to pay an additional $80. If the action involves child support only, you have to pay an additional $40 instead. If these fees are challenging for you, you can submit a request that the court waive the fees. The court takes a number of factors into consideration to determine whether to grant these requests.
If the spouses disagree on any terms of the divorce (such as property division, child custody, parenting time, child support and spousal maintenance), Michigan judges often order the couple to attend mediation to attempt to find some common ground. Michigan courts also offer a mediation-like alternative dispute resolution program through Michigan’s Friend of the Court (FOC) system. The FOC may help parents work through disagreements informally through joint meetings, conferences or a hearing before an FOC referee. These meetings typically address issues related to child custody, parenting time and child support.
Whether through mediation, FOC or on their own, if the spouses can find an agreement on all issues of the divorce, the divorce is uncontested. The spouses can file a proposed divorce decree with the court. Unless the agreement is contrary to the law, the court generally orders a divorce decree under the proposed terms.
If the spouse can’t reach an agreement, they have a contested divorce and may end up in the courtroom. There, the spouses put forward evidence in a hearing to argue for their desired outcome. Then the court reaches a decision and issues a divorce decree.
Even in divorces where the couple agrees on everything, the court won’t issue a decree right away. The court must wait 60 days after the couple officially files for divorce if they have no minor children or six months if they have minor children before issuing the divorce decree. This waiting period applies even if the couple separated before filing for divorce but may be waived in compelling circumstances.
Michigan separation laws
The process of legal separation in Michigan begins in much the same way as divorce in the state. One spouse files for separation maintenance and pays the $175 and $80 or $40 filing fees.
If both spouses want to pursue separation, filing typically involves creating a separate maintenance agreement. This agreement should cover the same matters a divorce decree covers. Once the couple finalizes this agreement, they can file it with the court for approval.
If the separation is contested, one spouse files a complaint for separate maintenance and has it served on their partner. The partner must respond by filing an answer. When they do, they may either admit the grounds for separate maintenance or file a counterclaim for divorce.
If they admit the grounds for separate maintenance, the couple may voluntarily work with a mediator or Michigan’s FOC alternate dispute resolution system to create a separation agreement. Michigan courts may also order couples to attend alternative dispute resolution processes.
If the spouses don’t reach a final separation agreement, they may present their cases in a hearing before a judge. At the end of the hearing, the court will order a separate maintenance decree setting out the terms of the separation.
On the other hand, if the other spouse counterclaims for divorce, the case will go to trial for divorce. If the court finds that there has been an irretrievable breakdown of the marriage, the court will enter a judgment of divorce rather than separation.
Legal separation vs divorce in Michigan
Divorce and separate maintenance are quite similar in Michigan. Apart from the difference in your official marital status, divorce and separate maintenance involve the same:
- Legal issues: child custody and parenting time, child support, property division, spousal support
- Filing process: one spouse files a complaint and serves it on the other, who files an answer
- Filing fees: $175 base fee, plus $80 for cases involving child custody and parenting time or $40 for cases involving child support only
- Resolution mechanisms: negotiation, mediation, FOC, litigation
Ultimately, the decision to pursue one or the other generally depends on whether you want to remain legally married or not.
How an attorney can help
If you have questions about whether and how to move forward, consider speaking with a Michigan divorce attorney.
An experienced family law and divorce lawyer may help you better understand the differences between divorce and separate maintenance and discuss and identify your goals to determine which option may be most appropriate for your situation. Then, once you’ve determined the best path forward, an attorney may help you prepare your court filings, negotiate a potential settlement agreement with your spouse and litigate your claims in court if an amicable resolution isn’t feasible.
