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Legal Separation

Q.

What if I don’t want a divorce? How can I get a "legal separation"?

A.

There really is not anything in Michigan law called a "legal separation". There are at least three kinds of cases that people sometimes call a "legal separation". One is a case for Separate Maintenance. Another is a case under the Family Support Act for child support. The third is a case where you ask the Court to enter a Personal Protection Order. In each of these cases, you can still be married. Because you are not living together as man and wife, there are legal matters that need to be settled.

People who have lived together or have children together but are not married can file for child support or a Personal Protection Order. Like a divorce, you can only file for Separate Maintenance if you are legally married.

Q.

What is "Separate Maintenance"?

A.

In the old days, there were two kinds of divorces: One was called an "absolute divorce from the bonds of matrimony" and the other was a "divorce from bed and board." Today, when we say "divorce", we mean one that ends the marriage like a "divorce from the bonds of matrimony". The kind of divorce that establishes that the parties are not living together and sets out the rights and responsibilities of each without ending the marriage is called "separate maintenance".

In a Judgment of Separate Maintenance, like in a divorce judgment, the Court will divide the property and debts of the parties, decide child custody, order parenting time and child support, order spousal support if called for, and so on. What the Judgment of Separate Maintenance does not do is end the marriage so that the parties can go out, remarry, or start a new life.

Q.

But isn’t this easier to do than a divorce?

A.

Not really. The legal grounds for separate maintenance are the same as for a divorce. That is, "that there has been a breakdown of the marriage relationship to the extent that the bonds of matrimony have been destroyed and there is no reason to believe that the marriage can be preserved."

The legal procedures and paperwork are basically the same. The residency requirements and waiting periods are the same. (Lewis v Lewis, 153 Mich App 164.)

For these reasons, if you file for separate maintenance and your spouse comes to the Court and asks that it be a divorce instead, the Court is required either to grant a divorce or to dismiss the Complaint for separate maintenance. Basically, the Court cannot grant a Judgment for Separate Maintenance if one spouse wants that and the other wants a divorce.

Q.

But, if I’m not getting the whole divorce, isn’t it cheaper?

A.

Not really. The court costs and filing fees are the same. If you hire a lawyer, you should expect the fees to be about the same as for a divorce. In most cases, the type and amount of work that a lawyer has to do is about the same. Some things—like division of property or tax questions—may be more difficult because the marriage is not ending.

Q.

If it is not faster, cheaper or easier than a divorce, why would someone file for Separate Maintenance?

A.

Separate maintenance is a possible choice for people who clearly feel that they cannot continue to live under the same roof but who have religious, moral or other personal beliefs that would prevent them from divorcing.

The information on this website is not intended to be a substitute for legal advice or representationYou should talk with an attorney if you have any questions about how this information applies to your own problem or facts.