Separation vs Divorce: A Property Perspective
This post addressing separate maintenance is another in our series designed to make family law available to the people that need to know about it. We here at Clarkston Legal aim to bring divorce law to the people.
Imagine that two individuals enter into a consent judgment of separate maintenance. In that judgment, the parties agree to bar alimony and divide their property. They also agree that, should they proceed with an eventual divorce, the terms of their consent judgment of separate maintenance ultimately will be merged into their judgment of divorce.
The question sometimes arises: what happens if one party later challenges the agreed-upon property division during the divorce proceedings? Circumstances sometimes evolve drastically over time. What happens if the couple remains separated for years and things change drastically before they finally get divorced?
Married individuals may seek separate maintenance for various reasons, such as religious objections to divorce or a desire to remain legally married. Separate maintenance can allow both parties to retain health care coverage. However, some employers and health insurance providers treat the entry of a separate maintenance judgment as a triggering event that disqualifies the non-employee spouse from continued coverage. This practice is not applied uniformly across employers or insurance carriers.
An action for separate maintenance is filed in the same manner and on the same legal grounds as a divorce. One of the parties must have resided in Michigan for at least 180 days and in the county of filing for at least 10 days immediately before filing the complaint.
Both of these residency requirements are jurisdictional and must be met at the time of filing. When the matter is resolved in a separate maintenance proceeding, the parties remain legally married, but their marital property may be divided pursuant to a key provision in Michigan’s divorce law, MCL 552.19, which states:
Restoration of real and personal estate to parties.
Upon the annulment of a marriage, a divorce from the bonds of matrimony or a judgment of separate maintenance, the court may make a further judgment for restoring to either party the whole, or such parts as it shall deem just and reasonable, of the real and personal estate that shall have come to either party by reason of the marriage, or for awarding to either party the value thereof, to be paid by either party in money and the court may order support for a spouse who requires it, MCL 552.23(1).
This provision gives a family court enormous power to invade the separate property of one spouse in favor of the other. Family law practitioners’ manuals recognize this principle. The manual Michigan Family Law, a practitioner’s handbook we consult with frequency states the principle succinctly:
When a judgment of separate maintenance is entered and a party subsequently wishes to become divorced, a complaint for divorce will need to be filed and the statutory waiting period will apply. Even if the judgment of separate maintenance permits either party to convert it to a judgment of divorce if and when they choose, a complaint for divorce will likely still need to be filed. However, the parties do not get to relitigate all the issues.
The Michigan Family Law Benchbook, a guide used by family court judges and practitioners, has this to say about the at-issue procedure in this case:
If a party wishes to divorce after a final judgment has been issued in a separate maintenance action, the party should file an entirely new cause of action. Although many issues will already have been decided and are enforceable under the judgment, any remaining issues like dissolution of the marriage should occur under the new action.
A consent judgment of divorce is construed as a contract. As the Court of Appeals has frequently held:
• Andrusz v Andrusz, 320 Mich App 445, 452; 904 NW2d 636 (2017): A consent judgment is a contract and can only be modified by mutual consent, absent fraud, mistake, illegality, or unconscionability.
• Blaske v Blaske, 33 Mich App 210, 212; 189 NW2d 713 (1971); Greaves v Greaves, 148 Mich App 643, 646; 384 NW2d 830 (1986): The court may fill in gaps in an incomplete consent judgment, balancing equities under the circumstances.
• In re Lobaina Estate, 267 Mich App 415, 417-418; 705 NW2d 234 (2005): The overarching goal of contract interpretation is to determine and give effect to the parties’ intent.
Back to our example: the judgment divides property and bars alimony. But now circumstances have changed, and wife is in dire need of alimony. Does this mean she can scrap the consent judgment?
Despite the principle of collateral estoppel and the practice manuals referenced above that suggest she is out of luck because these matters have been settled, the savings clause found within MCL 552.19 remains available to a family court judge.
When analyzing the judgment on a contractual basis, the parties entered a judgment of separate maintenance by consent. The issues of spousal support and property are resolved. Wife argues that since this is a new [divorce] action the old judgment is not dispositive. This argument does not overcome the fact that the parties clearly contracted to eliminate any alimony obligations altogether. Husband argues that the judgment of separate maintenance should be clearly incorporated into their judgment of divorce.
Either analysis leads to the conclusion that when a married couple contracts for separate maintenance, a family court is often predisposed to uphold the terms previously agreed upon when dividing the property in a subsequent judgment of divorce. The property division should also be honored whenever possible.
The intervening circumstances in our example render a once fair agreement, inequitable. Like a decades old prenuptial agreement, the passage of a significant amount of time can tempt a family court judge to invade contractually separate property.
As a result, such contracts should be entered into carefully and with legal counsel. If you or a family member are facing such a break point, give us a call to schedule a free consultation.
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