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August 25, 2013

Alternatives to Divorce in Michigan and Legal Separation

There are three alternatives to a divorce. First, try to address the problem. Second, do nothing and third separate (which can take many forms). We invite you to explore our knowledge base.

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The Three alternatives to divorce in Michigan – The basics

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.

Work on the problem or separate?

The first alternative to divorce is to try address the nature of the problems in the marriage. This can be accomplished via professional counseling or otherwise, and usually requires a long-term commitment from both parties to be successful.

The second alternative to divorce is to simply do nothing about the problems in your marriage problem 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 and less expensive than getting divorced as there is no need to address the nature of the problem. However, the problems rarely go away without work. If you decide to do nothing, be fair to yourself and don’t complain about the problems.

The third alternative to divorce is legal separation. In Michigan, there are three types of legal separation to consider. Many professionals advise their patients / clients that separateness can be healthy.  Separation can take many forms, from separate bedrooms on one hand to a legal separation.

The three types of legal separation in Michigan are:

1. A Private Separation Agreement.

2. A  Separate Maintenance Agreement;  and

3. A Postnuptial Agreement.

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.

Separation in Michigan – The details

In Michigan, there are three types of separation agreements.  First, a private separation agreement.  Second, a separate maintenance agreement and third, a postnuptial 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 without a formal contract. 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 unless it is in writing.  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 Post Nuptial agreement. A Separate Maintenance Agreement is a legal separation and is very similar to a divorce. However, unlike a divorce, the parties remain married.

One popular basis for entering into a Separate Maintenance Agreement is to avoid a divorce, especially in situations where moral or religious concerns are paramount.

Sometimes clients are advised to consider a Separate Maintenance Agreements to allow a sick spouse to remain on health insurance after separation. Unfortunately, the ability to keep health a spouse on health insurance under a Separate Maintenance Agreement is difficult as many health insurance policies consider a Separate Maintenance Agreement the same as a divorce which is why we advise clients to consider a Post Nuptial Agreement

3.  Postnuptial Agreement

I am a big fan of a Postnuptial Agreement.  This separation agreement is one of the most valuable legal separation tools in Michigan and is usually enforceable under Michigan law. Unlike a Separate Maintenance Agreement, you can remain on your spouses health insurance, while living separately.  A Postnuptial Agreement is similar to a Prenuptial Agreement, but entered into after you marry.

The Allard III case. The Michigan Supreme Court recently issued an opinion that impacted Postnuptial Agreements. Specifically, the Court prohibits parties from waiving the statutory right of a judge to invade separate property.

How the Allard III case killed pre and post-nuptial agreements.

However, the actual impact (circa 2019) of the Allard III case has been minimal and limited in scope to cases where enforcement of a Postnuptial Agreement would be really unfair.

In order for a Postnuptial Agreement to be enforceable, the parties must first separate, however, there is no requirement that the parties remain separated. Lawyers accomplish this by first filing for divorce, second sign the Post Nuptial Agreement and then dismissing the divorce action.

The Law – Divorce Alternatives in Michigan

Postnuptial Agreements.

Michigan law does allow parties involved in a marital relationship to enter into an enforceable contract, simply when a divorce or separate maintenance is clearly imminent.  Lentz v. Lentz, 271 Mich. App 465 (479). The Lentz court holding:

We hold that . . . Public policy favors upholding a property agreement negotiated by the parties when divorce or separate maintenance is clearly imminent. Such agreements undoubtedly promote judicial efficiency and best effectuate the intent and needs of the parties.   Id. at 479

In Randall v. Randall, 37 Mich. 563, 571 (1877), the Michigan Supreme Court indicated that postnuptial agreements made in contemplation of divorce, by a couple not yet separated, are void as against public policy. The Court stating:

The chief difficulties with such contracts are encountered when they undertake to provide for a separation of the parties and a breaking up of the marriage either with or without a divorce. It is not the policy of the law to encourage such separations, or to favor them by supporting such arrangements as are calculated to bring them about. It has accordingly been decided that articles calculated to favor a separation which has not yet taken place will not be supported…. [Id.]

In In re Berner’s Estate, 217 Mich. 612, 620–621; 187 NW 377 (1922), the Court reaffirmed this principle, once again distinguishing between couples already separated and couples still together:

An agreement to effectuate a separation or in contemplation of a future separation is void as against public policy…. The agreement should be in recognition of an existing separation. Separation involves a cessation of domestic intercourse and cohabitation…. It is to be found as a fact from the intention and conduct of the parties. [Emphasis added.]

In Day v. Chamberlain, 223 Mich. 278, 281; 193 NW 824 (1923), the Court stated:

The separation agreement [at issue] was void as against public policy. It was made, not in recognition of any existing separation, but to effectuate, and in contemplation of, a future separation. The husband and wife were living and cohabiting together at the time and  continued so to do for nearly two months thereafter. It is well settled that a separation agreement so made is void.

The Court went on to state that “[i]f a contract is void as against public policy, the court will neither enforce it while executory, nor relieve a party from loss by having performed it in part.” Id. (internal citation and quotation marks omitted).

In Wright v. Wright, 279 Mich.App 291, 294; 761 NW2d 443 (2008), the married couple at issue were not separated at the time a postnuptial agreement was signed, although the marriage was under strain. The plaintiff filed for divorce approximately eight months after the agreement was signed. Id. “He did not first separate from defendant or leave the marital home….” Id.at 294–295.

In upholding the lower court’s ruling that the postnuptial agreement was void, this Court stated, “a couple that is maintaining a marital relationship may not enter into an enforceable contract that anticipates and encourages a future separation or divorce.” Id. at 297. Emphasis added.

Separate Maintenance Agreements.

The statute authorizing a Separate Maintenance Agreement in Michigan is Michigan Compiled Laws section 552.7 the state provides in pertinent part that:

(1) An action for separate maintenance may be filed in the circuit court in the same manner and on the same grounds as an action for divorce. In the complaint the plaintiff shall make no other explanation of the grounds for separate maintenance than by use of the statutory language.

The no-fault ground for divorce in Michigan is that there is a “breakdown of the marital relationship to the extent that the bonds of matrimony have been destroyed and that there remains no likelihood that the marriage can be preserved”.  You do not need to allege fault to get a divorce in Michigan.

Articles on Divorce Alternatives in Michigan

When is a deal a deal?

Legal separation in Michigan

https://www.thedivorceguy.com/blog/prenuptial-agreement/

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Michigan Divorce law – Demi Moore and Ashton Kutcher divorce Do you need a prenup?

Should I divorce? Simon Cowell, Heidi Klum, Johnny Depp, and you.

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By:  Daniel Findling (updated: 2019)

The Divorce Guy, Michigan Divorce Attorneys and Specialists

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