Already Separated? Do I Need a Divorce

I have recently conferred with a number of people who have been separated from their spouse for many years, but remained married to them. They have many and diverse reasons for staying married. However, they are at a point where one spouse wants to end the marriage.

These clients have been surprised to learn that their property is not divided as of the date of their separation. In Michigan, the case law states that you are married until you are divorced. There have been cases where the spouses separate and one spouse comes into considerable money after the separation, such as a signing bonus for a better paying job. The spouse who received the money thinks it belongs just to him or her and the other spouse thinks the money or property should be divided. The law is that all property acquired during the marriage, unless it came to one spouse by inheritance or gift and was held separately by that spouse, will be divided between the spouses, equitably. This means that it is usually divided equally.

It is possible for a couple to separate in Michigan, to have all the issues addressed formally and have a valuation date (the date on which the property is divided) and stay married. This is called Separate Maintenance. A Settlement Agreement and a Judgment can be prepared that deals with child custody, parenting time, child support, spousal support and property. Such agreements and judgments generally state that all the terms of the separate maintenance will be carried forward into a judgment of divorce.

This permits people to live separately, but stay married if they feel this is beneficial for their family. This may work for couples who for religious or moral reasons are may not wish to divorce. This may also permit the spouse who would lose health insurance benefits when there is a divorce continue to receive those benefits through the spouse’s employer. If the couple decides later that they wish to reconcile their marriage, they are still legally married. However, they should carefully consider whether to continue the decisions that they have made, modify them or dismiss the judgment.

The decision to separate is difficult. Many couples try this on an experimental basis to see whether living apart will help them sort through the problems they have in their marriage. However, when it becomes apparent that the separation does not lead to a happier marriage, having an agreement that sets out what you both intend, going forward, is wise and avoids future conflict.