What Is Legal Separation at Michigan?
While the term "legal separation" is often discussed in connection with divorcing couples, the actual legal process of a legal separation – as it exists in Michigan – is rarely utilized. In fact, most people do not know that there is even such a thing as legal separation in Michigan. In order to really understand this idea of legal separation, it is important to understand what it is not.
Legal Separation is Not Divorce:
As the name implies, legal separation is akin to separation from your spouse, but with legal ramifications. Unlike divorce, which moves a couple through the legal system and ultimately towards the end of a marriage, legal separation is intended to maintain a couple’s marriage. That being said, if you are not content with your marriage and your goal is to end things with your spouse, legal separation is not a good option to consider . You will still be married, you will still have to live by all the rules and regulations of married life under the law, and you will have to go through the same process as if you were getting a divorce in order to end things with your spouse later.
Legal Separation Does Not Exist in Michigan:
Though many states allow legal separation as a conscious choice, the state of Michigan does not. If you want a legal separation in Michigan, you will have to file for and proceed with a divorce. Because so many people mistake legal separation for temporary orders, you can request a temporary order from the court, but expect that you will have to done so using language that proves the temporary orders are just that – orders that last only as long as your divorce is proceeding.
The Legal Separation Requirements
Before you can file for Separate Maintenance (as it is called in Michigan), there are certain eligibility rules that you must meet. The Michigan court system website has a list of the requirements you must meet. Note that if you don’t meet the requirements in this number list, the court may not accept your case.
- Either person is a resident of MI and has lived in the state for at least 180 days (or was stationed in MI for 180 days while in the military);
- Before filing, either party has lived in the county where the case will be filed for 10 days; and
- Either party’s address has been given to the Friend of the Court Office (FOC).
The court may look at many factors before granting a Legal Separation Order. These can include the following:
-Extent of previous attempts at reconciliation;
-State of the relationship;
-Feasibility of reconciliation;
-Moral and economic factors;
-Circumstances of, and conduct resulting in, the divorce;
-Financial circumstances of the parties;
-Personal conduct of the parties;
-Opinion of third parties as to the marriage; and
-Awareness of and capacity to meet the needs of minor children (if applicable).
How to File for a Legal Separation
Filing for legal separation in Michigan may seem like a daunting process, but understanding the step-by-step approach can help streamline the journey. The first step in the process is to draft a Complaint for Separate Maintenance, which is the legal form asking the court to review your situation and grant you the relief you desire. While many counties in Michigan allow this to be filed in the Friend of the Court’s office, it is advisable to file the paperwork with the Court where your spouse resides to avoid future jurisdiction issues if the case is contested.
Filing the complaint is the next step. This folder typically contains the complaint (Michigan Court Form MC 50a), Summons, the Case Information and record Sheet (form MC 15), an Order with Appearance Notice, Notice to Friend of the Court, Notice of Hearing, Request to Refer to the Friend of the Court, and Affidavit in Support, Order for Support Order, and Addendum to Order. Once filed, the Friend of the Court should immediately set a hearing date on the support and custody matters. With this, your case is active with the court and the Friend of the Court’s office. You will need to pay a filing fee, which varies based on county; however, most counties are approximately $200.00. Once filed, you will be assigned an "File Number," which will identify your case.
The next step is serving your spouse with the documents. This is done by having someone who is over 18 give the papers to the spouse and file an Affidavit of Proof of Service (form MC 51). It is important that you comply with this step fully to avoid dismissals or a contested matter in some counties.
Once your spouse has been served, the Friend of the Court’s office will likely schedule a hearing at the same time as the status conference. At that time you will file an Ex Parte Motion to enter a Temporary Restraining Order regarding the status quo and any issues that you believe should be addressed prior to your temporary hearing. The extent of the Order can vary by county. Most counties will grant Orders restricting sale or transfer of property, restrictions on therapy, offering child support at a lower guideline level based on the expedited filing, cost of healthcare and insurance, transportation cost, and medical expenses, etc. Some counties, such as Kent County, will require the parties to have a meeting for an early resolution of issues.
Once your Temporary Orders are entered, the Friend of the Court issues a Support Order and Child Support Obligation Notice, which also translates into an income withholding order, effective on the date of entry. You will be assigned a Friend of the Court Case Worker and a Friend of the Court Finance Officer to assist you in achieving your goals. You will then receive a postcard with each party’s case numbers from the Friend of the Court, and you will submit all payments in accordance with the instructions provided.
You are now ready to attend Court and litigate either to resolve the matter or to request a trial date.
Legal Talk and Responsibilities
Legal Separation in Michigan: Navigating the Complexities of a Lawful Separation Period
Legal Separation is not a recognized status in Michigan divorce law. In its absence, the legal process will be the same as a Divorce with the exception of not submitting the Judgment of Divorce at the final judgment stage. Instead, the Judgment of Legal Separation will be filed. It should be noted that this proceeding should be viewed as temporary; and should only be used as a vehicle when the purpose is to protect someone from an abusive spouse. Almost always, parties will ultimately end up divorced and the time/money cost will be duplicated as a result of the legal procedure. Choosing Legal Separation has a higher emotional component as one side may be seeking this for obtaining sole marital residence possession or stopping a mortgage foreclosure proceeding temporarily. Although the Judicial Circuit Rule does not automatically grant possession of the real estate, the file / history will (without further blandishment) be enough to convince the judge that the children require continuity in their lives (i.e. life in a familiar environment) and there should be no displacement until the closure date.
Marital property and assets claimed by either party are subject to division in a Michigan divorce proceeding, and this remains true in a legal separation. The property will be divided in an "equitable" manner, meaning according to what is fair and just under the circumstances. In nearly all cases, property that is brought into the marriage will be awarded to the spouse who owned it prior to the marriage; although in many cases such as gifts it is all property that is accrued during the marriage that is distributed.
Support is also a consideration in both legal separations and divorces. Either party can be awarded spousal support, which is an amount of money paid on a regular basis to the other party. This amount can vary based upon a number of circumstances, including the length of the marriage, the age and health of each spouse, and prevailing standards of living.
In Michigan, decisions regarding custody and parenting time can be made between the parents, or can be decided by the courts if an agreement cannot be reached. In legal separation proceedings, these issues are nearly always agreed upon by the parties. Child support will be ordered in a legal separation, just as in a divorce action.
The Cost of a Legal Separation in Michigan
Filing for a legal separation in Michigan is not free. As with most other legal proceedings, there are costs involved in the process. There is a court fee of $150 for filing the complaint in the circuit court where either spouse lives. Additional filing fees may be required if there are additional motions filed with the court. Most courts also require that a case evaluation fee be paid prior to the evaluation or mediation, which is usually between $400 – $800 per case. If there is an agreement reached, your case evaluation fee will cover the cost of preparing the necessary divorce judgment. If not, you will then have to pay your attorney to draft the divorce judgment.
In addition to court fees, if you have minor children, you will need to pay a fee for a friend of the court investigation, which averages between $700 – $1,000, depending upon your county. An investigation is performed when children are involved in the case to determine the best interest of the children. These professionals will talk to both parents, as well as family members, teachers, and possibly the children in order to conduct the investigation . After the investigation is complete, a report is submitted to the judge and the recommendations are considered when making the final custody determination. If an investigation is not desired by the parties, the court must order it anyway in a contested case where issues of custody and parenting time are involved. Parenting time investigations are usually less expensive, averaging $500.00.
There is also a fee charged by the Friend of the Court for mediation in contested cases. The fee is based on the recommendation from the friend of the court, which is usually around $200.00. If the parties cannot reach an agreement through mediation, the case proceeds to trial.
Most attorneys charge between $275 – $350 per hour for their services. The lawyers in our firm charge a flat fee for the majority of care – $2,500.00 to handle the legal separation, as long as it is an amicable separation without contested issues. We can also file for a legal separation on the grounds of irreconcilable differences.
Other Options for Separation
Given the more final nature of a legal separation and the stricter requirements set forth in the Michigan statute, it is wise to consider whether other options, like counseling or informal separation, may be a better fit for your current situation.
Counseling
Not all couples need to go through a formal process to resolve issues in their marriages. In fact, many disputes can be resolved with the help of a professional marriage counselor. A marriage counselor will sit down with both partners and identify issues that can be resolved together. Whether you or your spouse are willing to forgive and move on is up to you and is the goal of a counselor. As you work through issues, you may find that each partner’s needs have changed and a divorce is the best option. Unlike a marriage counselor, a divorce mediator works out a divorce settlement, not a marriage settlement.
Informal Separation
An informal separation is simply a way for you and your spouse to live apart without the need for a legal settlement. An informal separation, however, won’t necessarily resolve any legal issues you have. For example, it doesn’t do anything to divide property or set child custody and support terms. You each simply agree that you don’t intend to live together anymore and be done with it. Some couples find this works fine for years, and some couples find it creates more problems than it solves.
Getting Legal Help
When it comes to navigating the complexities of legal separation and its implications in Michigan, the guidance of an experienced family law attorney can be invaluable. The laws surrounding legal separation may vary from state to state, and having an expert in Michigan’s family law system can help ensure that you understand your rights and responsibilities every step of the way.
An experienced attorney can guide you through the process of getting a separation agreement, explain your options, and help you decide when a legal separation is necessary. If you and your spouse share children, a family law attorney can provide crucial counsel concerning how the separation will affect child support, custody, and the division of assets , and how to approach these sensitive matters collaboratively.
A family law attorney can help you draft a legal separation agreement that outlines your current agreements with your spouse (i.e., child custody and child support), how you will handle spousal support, and how you will divide your property during and after separation. They are also able to legally file the agreement, register it with your local court system, and ensure that the filings are done correctly.
If you are considering a legal separation in Michigan, seeking out the advice of a qualified family law attorney should be one of your first steps. They can help you navigate any potential pitfalls, possible exemptions, and legal requirements that apply to your unique situation, and help to ensure that your legal separation goes as smoothly as possible.