Forward Thinking Family Law Since 1994

What Are the Benefits of Legal Separation V. Divorce

Couple's Hand With Divorce Agreement And Wedding Rings

Even though your marriage has broken down, you may not be ready to file for divorce. You may have heard of a “legal separation” and wonder if it is a good half-way point for you and your spouse. Find out what a legal separation is, and what the benefits of “separate maintenance” are for couples who are ready to go their separate ways.

Just Because You Moved Out Doesn’t Mean You Are Legally Separated

To most people, whether you are married or not, once you and your partner are not living together you have “separated.” But a marriage is a legal agreement between two people, not a living arrangement. Just because you move out doesn’t mean you are legally separated. There are thousands of state and federal laws that use the words “spouse”, “husband”, and “wife” to define rights and responsibilities for everything from taxes to ICU visitation. Without a formal legal separation, which Michigan calls a separate maintenance agreement, you may find yourself connected to your spouse’s assets -- and debts -- long after you turned over the keys.

At the same time, a legal separation isn’t just a cooling off period. If you and your spouse believe you may be able to work out your differences given time and the right therapist, you may not want to hurry to the courthouse just yet. A legal separation is final once it is entered. So if you are “taking a break” and hope reunification is somewhere in your future, you may be better off considering other alternatives, like temporary child support or spousal support, rather than a formal separation.

What Separate Maintenance Agreement Does for You

A separate maintenance agreement, or a contested order for separate maintenance, is a divorce alternative that gives you most of the benefits of a property distribution settlement, without legally dissolving your marriage. Separate maintenance agreements historically benefited spouses (most often wives) who faced stigma or even negative legal effects for getting a divorce. Alternatively, couples choosing to file for separate maintenance rather than divorce may do so for religious reasons.

However, a separate maintenance agreement also allows you to continue being considered  a married couple for certain financial purposes -- most often so that one spouse can remain primarily or supplementally covered by the other’s  medical insurance where serious health issues are in play -- while separating your real property, personal property, and accounts. It can also preserve inheritance and insurance beneficiary rights in one another’s property.

Keep in mind however, if the purpose for seeking separate maintenance is for continued medical insurance coverage, some insurance companies have altered their policies so that a legal separation disqualifies a spouse from coverage. Therefore, it is important to check with the insurance company to insure that this option is not barred by policy.   

Should You File For Separation or Divorce?

In most cases, the clients who come in with questions about divorce versus separate maintenance fall in favor of divorce. That is because even after you go through the time and expense of negotiating  a final order for separate maintenance you will still be legally married to your spouse. If, over the years, either of you decides to get remarried, you will need to go back to court to file a complaint for divorce that adopts your previous separate maintenance agreement.

However, in recent years, the Michigan Supreme Court has approved an uncontested divorce procedure that could make this secondary process much easier. Assuming both parties to a legal separation agree that everything is finalized and all that is left is to sever the “bonds of matrimony”, your family law attorney can help you prepare this joint petition for an uncontested divorce quickly and easily without too much additional expense. That could make the benefits of a separate maintenance agreement more appealing to some families who would have otherwise jumped right to divorce.

If you rely on your spouse to help provide for your needs, or have a unique insurance or inheritance situation, a separate maintenance agreement may be the right choice for you and your family. Talk to an experienced family law attorney today to discuss your options and decide the best divorce, or divorce alternative, process for you.

At NSSSB, we have decades of experience helping spouses resolve their marriages and move on to the new chapters of their lives. We understand that divorce isn’t right for every family. We will help you understand the technicalities of a legal separation and decide if it is the right choice for you. Click here to schedule a consultation with an attorney. We will listen to the details of your situation, answer your questions, and help you decide the best course of action for the dissolution of your marriage.