Michigan is a no fault divorce state. This means neither party needs to show fault for the breakdown of the marriage to obtain a divorce. However, fault can be a factor when a judge considers the equitable division of property.
Separate maintenance actions are just like a divorce. However, at the conclusion of the case, the parties are still married and neither is free to re-marry. Sometimes people are opposed to divorce for religious reasons or they may have an interest in remaining legally married for other reasons. Spousal support may be awarded and property is divided just like in a divorce.
A Word About Health Insurance
In a divorce, your spouse is entitled to continued health care coverage through your group for up to three (3) years, under a federal statute called ("COBRA"). The cost of the insurance premiums are the responsibility of the individual, not the employer, and typically run $300 to $400 per month. A savvy divorce lawyer knows the best approach when it comes to maneuvering COBRA and has a creative idea or paying for the premiums.
Spousal Support a/k/a Alimony
A spouse may be entitled to spousal support in a divorce or separate maintenance action based on numerous factors:
Length of the marriage;
Spousal support is considered income for the payee and deductible for the payer, against federal income tax.
If you are receiving SSI (supplemental Security Income) it may not benefit you to receive spousal support or pension benefits from your ex-spouse. Any money received reduces your SSI payments. If the money is enough to make you ineligible for Medicaid and health insurance is very important to you, you may prefer to remain on SSI and Medicaid and forego spousal support. There may even be alternatives to spousal support, which you should discuss with a divorce attorney.
If you are married at the time of your spouse's death you are entitled to receive a portion of his or her social security benefits. If you are divorced, you may collect from any one of your ex-spouse's social security benefits if you were married for at least 10 years, or you can receive benefits from your own account. You cannot double dip by receiving benefits from a spouse or ex-spouse's social security and your own --so choose the benefit that best suits you from a financial perspective.
Pensions Are Marital Assets
Pensions are marital assets. But, for some reason many parties leave this valuable marital asset on the table, especially when they choose to represent themselves in court as a pro se divorce litigant. Skimping on competent legal representation can leave you skimping (unnecessarily) at the end of the month. Spouses are entitled to a share of their spouse's pension accrued during the marriage. The pension interest is secured by a QDRO (Qualified Domestic Relations Order) or an EDRO (Eligible Domestic Relations Order depending on the circumstances of the employment status. The QDRO or EDRO must be drafted and entered with the court in order for a party to collect on the pension benefits.
Surviving Spouse Benefits entitle a spouse to continue receiving benefits once the employee/retired employee dies. The surviving spouse election must be made at the time of retirement or a QDRO and Judgment of Divorce. If it is not elected once the employee/retiree dies, the benefits will stop.
Retirement Savings Plans (401ks)
A spouse is entitled to one half of the portion of their spouse's retirement savings plan accrued during the marriage. Again--to secure the pension interest, a QDRO must be drafted and entered (filed and stamped) with the court. There are tax consequences for early withdrawal of funds, which must be considered. Consult a tax attorney or CPA in addition to your divorce attorney, and/or ask for a referral to one or both.
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