Legal Separation/Separate Maintenance in Michigan

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Michigan does not have an action for legal separation, but we do have an action for Separate Maintenance. The initial filing is almost identical to the filing of a Divorce, and when a Judgment enters the parties are divorced economically or financially, but they are not divorced from the bonds of matrimony.

Sometimes parties add special language to a Judgment of Separate Maintenance that provides that if either party wants to turn the Judgment into a Judgment of Divorce they may do so within six months and then the Court will not require that a new case be filed and the Court will waive the statutory waiting period before a Judgment of Divorce can enter.

Why file for a Judgment of Separate Maintenance? Most people do so for one of three reasons:

  1. They do not believe in divorce for religious reasons.
  2. The other spouse needs continuing medical coverage that might be automatically terminated in the event of divorce, although some policies will also terminate upon entry of a judgment of Separate Maintenance. To prevent the loss of insurance, it may be advisable to enter into a detailed post-nuptial agreement,
  3. To allow the other spouse to remain in the country, if the other spouse s allowed entry only because of marriage to a citizen.

If one party files an action for Separate Maintenance, the other party may file an counterclaim for divorce. (MCLS 552.7 (4).

The statute provides what must be included in the terms of a Judgment of Divorce or of Separate Maintenance:

552.101 Judgment of divorce or separate maintenance; provision in lieu of dower; determining rights of wife or husband in and to policy of life insurance, endowment, or annuity; discharge of liability on policy; determination of rights; assignment of rights.

Sec. 1

(1) When any judgment of divorce or judgment of separate maintenance is granted in any of the courts of this state, the court granting the judgment shall include in it a provision in lieu of the dower of the wife in the property of the husband, which shall be in full satisfaction of all claims that the wife may have in any property that the husband owns or may own in the future or in which he may have any interest.

(2) Each judgment of divorce or judgment of separate maintenance shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the husband in which the wife was named or designated as beneficiary, or to which the wife became entitled by assignment or change of beneficiary during the marriage or in anticipation of marriage. If the judgment of divorce or judgment of separate maintenance does not determine the rights of the wife in and to a policy of life insurance, endowment, or annuity, the policy shall be payable to the estate of the husband or to the named beneficiary if the husband so designates. However, the company issuing the policy shall be discharged of all liability on the policy by payment of its proceeds in accordance with the terms of the policy unless before the payment the company receives written notice, by or on behalf of the insured or the estate of the insured, 1 of the heirs of the insured, or any other person having an interest in the policy, of a claim under the policy and the divorce.

(3) Each judgment of divorce or judgment of separate maintenance shall determine all rights of the husband in and to the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the wife in which the husband was named or designated as beneficiary, or to which he became entitled by assignment or change of beneficiary during the marriage or in anticipation of marriage. If the judgment of divorce or judgment of separate maintenance does not determine the rights of the husband in and to the policy of life insurance, endowment, or annuity, the policy shall be payable to the estate of the wife, or to the named beneficiary if the wife so designates. However, the company issuing the policy shall be discharged of all liability on the policy by payment of the proceeds in accordance with the terms of the policy unless before the payment the company receives written notice, by or on behalf of the insured or the estate of the insured, 1 of the heirs of the insured, or any other person having an interest in the policy, of a claim under the policy and the divorce.

(4) Each judgment of divorce or judgment of separate maintenance shall determine all rights, including any contingent rights, of the husband and wife in and to all of the following:

(a) Any vested pension, annuity, or retirement benefits.

(b) Any accumulated contributions in any pension, annuity, or retirement system.

(c) In accordance with section 18 of 1846 RS 84, MCL 552.18, any unvested pension, annuity, or retirement benefits.

(5) For any divorce or separate maintenance action filed on or after September 1, 2006, if a judgment of divorce or judgment of separate maintenance provides for the assignment of any rights in and to any pension, annuity, or retirement benefits, a proportionate share of all components of the pension, annuity, or retirement benefits shall be included in the assignment unless the judgment of divorce or judgment of separate maintenance expressly excludes 1 or more components. Components include, but are not limited to, supplements, subsidies, early retirement benefits, post-retirement benefit increases, surviving spouse benefits, and death benefits. This subsection shall apply regardless of the characterization of the pension, annuity, or retirement benefit as regular retirement, early retirement, disability retirement, death benefit, or any other characterization or classification, unless the judgment of divorce or judgment of separate maintenance expressly excludes a particular characterization or classification.”

The Judgment might also contain terms regarding: Change of name, spousal support, custody, parenting time, child support, real estate, business interests, and custody of pets.

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