August 25, 2013

Alternatives to Divorce in Michigan and Legal Separation

Alternatives to Divorce

You may have been thinking about divorce but feel like you have to stay together for the kids.  Perhaps you think that it is just better or easier to stay together in an unhappy, unhealthy marriage, pretending to love each other to limit the negative effects on kids.  Not necessarily so. Most people give careful thought before getting married.  Careful thought and deliberation should be used before deciding on a legal separation or divorce.  Deciding to stay or leave takes courage and everyone has a right to be happy.

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The Three Alternatives to Divorce.

Work on the problem or separate

There are three alternatives to divorce including legal separation that should be considered:

1. Address the Nature of the Problem in the Marriage First, discover and address the nature of the problem in the relationship. This can be accomplished via professional counseling or otherwise, and usually requires a long-term commitment from both parties to be successful.

2. Do Nothing about your Marriage Problems Second, do nothing and hope that the problem(s) will go away. This is a real alternative for many couples. Sometimes, religious beliefs, a fear of loneliness, loss of a benefit or another concern outweigh the desire to find happiness without a spouse. Doing nothing is also easier than getting divorced as there is no need to address the nature of the problem.

3. Legal Separation The third alternative to divorce is to separate.  Professionals often advise clients that separateness can be healthy.  Separation can take many forms, from separate bedrooms on one hand to a legal separation. If you decide to separate there are three types of Separation Agreements to consider.

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Separation Agreements

In Michigan, there are three types of separation agreements.  First, a private separation agreement.  Second, a separate maintenance agreement and third, a post nuptial agreement.  Each separation agreement has advantages and disadvantages which are discussed below.

1.  Private Separation Agreements

A private separation agreement is simply an agreement by the parties on the terms of a separation.  You may consider yourself separated, but there is no enforceable document under Michigan law.  A private separation agreement can also complicate a case if the legal separation migrates to a divorce.  For example, the “agreement” regarding property, the kids, or support, will likely not be enforceable in court.  Even worse, you could hurt a custody case by creating an established custodial environment.  A private separation agreement is not a legal separation.

2.  Separate Maintenance Agreement

A legal separation is only “legal” under Michigan law, if it structured as either a Separate Maintenance Agreement or prenuptial agreement. A Separate maintenance Agreement is a legal separation and is similar to a divorce, however, the parties remain married.  Historically, Separate maintenance agreements were entered into to allow a spouse to remain on health insurance.  Unfortunately, the ability to keep health a spouse on health insurance under a Separate Maintenance agreement has lapsed.  Another basis for entering into a Separate maintenance agreement is to avoid a divorce, especially in situations where moral or religious concerns are paramount.

3.  Post Nuptial Agreement

Update (May 1, 2017):  Post nuptial agreements may be DOA in Michigan.  The case of Allard III.

I am a big fan of a post nuptial agreement.  This separation agreement is the most valuable tool in a Michigan divorce lawyers tool box and is enforceable under Michigan law. Unlike a Separate maintenance agreement, you can remain on your spouses health insurance, while living separately.  A post nuptial agreement is similar to a prenuptial agreement, but entered into after you marry. A person will usually experience some form of denial, shock and confusion before being able to decide whether to remain or let go of the relationship. In any case, every alternative should be considered before deciding to get divorced.

Choosing a competent family law attorney will allow you to focus on you and he/she will evaluate the legal considerations of divorce specifically, the division of property, money, debt and the award of spousal support.

If children are involved, the attorney will address issues relating to custody and support. Your attorney should be competentcompassionate and honest. A competent family law attorney knows the law. A compassionate family law attorney will ask the client what he/she wants. An honest family law attorney will tell the client if his/her goals are achievable and will never try to talk you into getting a divorce.

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By:  Daniel Findling The Divorce Guy, Michigan Divorce Attorneys and Specialists www.thedivorceguy.com www.divorceforum.com 877-YOUR FIRM

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