Many people when confronted with the possibility of a divorce consider whether they should opt for trying a legal separation first. While there are a myriad of emotional reasons why one might want to try a legal separation first, in most cases from a legal perspective, it is better to simply file for divorce.
Divorce Makes More Sense From a Legal Perspective
The first reason that it makes more sense to file for divorce is that to obtain a "Judgment of Separate Maintenance" one must go through the same process as filing for divorce. This requires the filing of a complaint, going through the discovery process, mediation, etc. which is time consuming, tedious and expensive. It can cost as much as filing for a divorce and take as much time. Also, because the process is difficult, many times by the end of the process the parties do not want to have much to do with one another and reconciliation becomes impossible. Finally, if you decide later that you actually would rather be divorced, then a new action must be started with the filing of the complaint and motions to enter the "Judgment of Divorce" . This requires additional attorney fees, time, expense and aggravation.
Divorce is More Certain Than a Post-Nuptial Agreement
Once you are already married, you cannot get a prenuptial agreement. You could try to get a "postnuptial agreement" to protect yourself from your spouse's spending habits or limit potential increased alimony obligations that would accrue if you stay married. However, while prenuptial agreements are well established and generally enforceable in a Michigan divorce case, postnuptial agreements are not as legally stable or sound. They are only enforceable when entered into under the proper circumstances which do not exist in all cases, and even then it is not certain that an individual postnuptial will be enforced by the court and an appeal might be required. If you simply file for divorce and move-on, you will have the certainty and finality of a judgment enforceable by the court.
If you are experiencing interpersonal issues or trouble in your marriage, separation is probably not a good way to attempt to fix the issue. As a general rule, people must talk to one another and work things out through therapy, separating means that the people will almost certainly have less opportunity to communicate and will in fact avoid doing so if separated. If you or your spouse has decided that the relationship has come to an end, please do not hesitate to contact us to schedule a consultation.