Legal Separation in Michigan

Michigan law does not formally provide for a legal separation. It is not required that a couple be separated before a divorce. Michigan law does, however, allow for something called a “separate maintenance” action. Thus, a couple in Michigan can obtain a Judgment of Separate Maintenance in basically the same way as they can obtain a divorce. The main difference is that with the former, the parties are still married and therefore may not remarry. Separate maintenance actions are not particularly common. One reason that a couple would decide to obtain a Judgment for Separate Maintenance instead of a divorce would be the wish to avoid divorce for religious reasons.

Initial considerations for Divorce in Michigan

To file for divorce in Michigan, the spouse who is filing for the divorce must have been a resident of Michigan for at least 180 days and must have resided in the county where the divorce complaint was filed for at least ten days prior to filing.

If the other spouse resides in another state, the Michigan court will be able to grant a valid divorce, but may be limited in its ability to divide property or determine custody and child support. However, it is possible for a spouse who lives in another state to consent to having all divorce-related issues decided by the Michigan court.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. In order to obtain a divorce in Michigan, it is not necessary to establish that one or both parties were at fault in the marriage. A “no fault divorce" may be granted in Michigan under the grounds of “irretrievable breakdown of the marriage relationship“ if the “objects of matrimony” have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.

Division of Property

Under Michigan law, property is either considered to be part of the “marital estate” or “separate property.” Property that is deemed to be part of the “marital estate” is subject to “equitable distribution.” That is, it is split between the spouses in a way that the court deems to be “equitable.” Note that equitable does not necessarily mean equal or 50/50. Rather, it means that property will be split in a way that a court believes to be fair or just.

When the court makes a division of property in a divorce case, "fault" may be taken into account by the court. The court can decide that one party is entitled to more property than the other because one party was at fault in causing the breakup of the marriage.

Assets and debts acquired during a marriage are usually deemed to be “marital property” under Michigan law. Conversely, “separate property” usually includes inheritances received before or during the marriage, assets accumulated prior to marriage or while cohabitating prior to marriage (though depending on the assets were treated during the marriage, it is possible that they could be considered marital property), and increases in value of a separate asset due to “passive appreciation” (for instance, interest).

When dividing the marital estate, the court may consider the following factors to determine how it should be split between the spouses:

• (1) the length of the marriage,
• (2) the contributions of the parties to the marital estate,
• (3) the age of the parties,
• (4) the health of the parties,
• (5) the life situation of the parties,
• (6) the necessities and circumstances of the parties,
• (7) the parties' earning abilities,
• (8) the parties' past relations and conduct, and
• (9) general principles of equity.

Courts generally prefer that spouses reach a settlement themselves regarding property and debt issues, but will decide on these issues if the spouses are unable to do so.

Alimony in Michigan

Alimony (referred to in Michigan as spousal support) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

The laws of Michigan governing alimony are generally contained in Sections 552.1 to 552.46 of the Michigan Compiled Laws (a link here).

It is a good idea to read the statutes carefully and to consult an attorney to determine the laws’ application in your particular situation.

Factors Affecting the Amount and Duration of Alimony in Michigan

In Michigan, alimony is not mandatory in a divorce or legal separation. A court may decide not to grant alimony or to limit the amount and duration of alimony depending on the ability of both parties to provide for their own needs.

Michigan law states that a court may require either party to pay alimony for the “suitable maintenance” of the other party, “to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them.”

Michigan law allows for alimony to be paid in periodic payments or as a lump sum. In determining whether to award alimony or the amount of alimony, a court considers what is “just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.”

A court may consider a variety of factors when determining whether to grant alimony. Some of these factors are:

• • Past relations and conduct of the parties, including fault in the breakdown of the marriage
• • Length of the marriage
• • Prior standard of living of the parties
• • Whether either party is responsible for the support of others
• • The parties’ ability to work
• • Amount and source of property awarded to the spouses
• • Ability of the parties to pay spousal support
• • Ages of the parties
• • Needs, health, and present situation of the parties
• • General principles of equity

This explanation is intended only as a basic overview. It is always best to read the actual statutes carefully and to consult an attorney to determine the law in your particular situation.

Modifying or Terminating Orders for Spousal Support

A court may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if circumstances have changed since the original judgment for support. Some examples of a change in circumstances that might warrant a modification of a support order would be remarriage, cohabitation, changes in need, changes in ability to pay, retirement, or the death of the payor.

If a court determines that a change of circumstances has occurred, it considers all of the circumstances to determination the nature of the support modification.

When do Alimony Payments End?

In general, permanent alimony terminates when either party dies or when the recipient remarries.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.

Child Support in Michigan

Child support is a court-ordered payment by one parent to the custodial parent of a minor child, generally after divorce or separation. In cases where both parents have equal custody, the child support will be based on the finances of both parents.

Calculation:

Child support in Michigan is calculated on the basis of "the Income Shares Model." The monthly support amount is determined by proportionally dividing each parent's income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. The child support amount may be modified if the financial circumstances of any spouse changes. However, the court will not modify the child support amount "retroactively”. Detailed information on calculating Michigan child support may be found here.

Continuation of Child Support beyond 18th Birthday:

The Court could order the continuation of child support beyond 18 years of age, if it finds the child is regularly attending high school on a full time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no case after the child reaches 19 years and 6 months of age. This extension of child support order in such conditions is binding to the parties concerned even in the absence of entering into such an agreement, up to the time the child reaches an age of 19 years and 6 months.

Child Custody in Michigan

In Michigan, custody determinations are made by the court based on the best interests of the child. If parents are unable to come to a custody-sharing agreement, a court may make a determination. Factors that courts consider in custody determinations include:

• • Love, affection and emotional bonds involved between the parties and the child
• • Capacity and capability of the parent to raise the child with love, affection and guidance and to have the capacity to support the child’s education and to raise the child in his or her religion or creed
• • Economic capacity to meet the essential requirements of the child such as food, clothing, medical care and other miscellaneous needs
• • Duration of time the child lived in a stable and conducive environment and the desirability of its continuity in providing the environment
• • Permanence, as a family unit, of the existing or proposed custodial home or homes.
• • Moral fitness, mental and physical fitness of the parties involved
• • Home, school, and community record of the child
• • Child's preference shall be taken into account if the court finds the child to be of an age in which he or she is able to take reasonable decision.
• • Willingness and ability of each of the parties to assist and encourage a close and continuing parent-child relationship
• • Domestic violence
• • Any other relevant factor considered by the court

Child Visitation in Michigan

Michigan law presumes that a child’s best interests are generally served by having strong relationships with both parents. Thus, under Michigan law, a non-custodial parent is generally awarded visitation (also called “parenting time” in Michigan) unless a court determines by clear and convincing evidence that parenting time would endanger a child’s physical, mental or emotional health. (see Michigan Compiled Laws 722.27a).

It is important to remember that parenting time is granted in accordance with the best interests of the child.

In order to determine the length, frequency, and type of parenting time, Michigan courts consider several factors (see MCL 722.27a):

• 1. The existence of any special circumstances or needs of the child.
• 2. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
• 3. The reasonable likelihood of abuse or neglect of the child during parenting time.
• 4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
• 5. The inconvenience to, and burdensome impact or effect on, the child of traveling to and from the parenting time.
• 6. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
• 7. Whether the parent has frequently failed to exercise reasonable parenting time.
• 8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.
• 9. Any other relevant factors.