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FAMILY LAW 16: Provisions of a judgment of separate maintenance do not preclude a court from addressing those issues in a later divorce.

The parties were married on July 11, 1992, and had no children during the marriage. In 2006, the parties separated and stopped living together as husband and wife. In 2012, defendant filed a complaint for separate maintenance. Because plaintiff did not respond to the complaint for separate maintenance, Judge entered a default judgement of separate maintenance ordering, among other things, that defendant receive 50% of plaintiff’s pension. Plaintiff did not appeal this judgment.

Nearly four years later, in 2016, plaintiff filed a complaint for divorce. Both parties filed cross-motions regarding spousal support.  On September 28, 2016, the parties appeared before Judge.  Defendant’s attorney represented to the court that he had already resolved all the issues, and presented the court with a consent judgment of divorce. Plaintiff objected to the entry of the consent judgment stating that he had not signed it and that he was not in agreement with it, and arguing that he was entitled to half of defendant’s pension. The court questioned plaintiff, and defendant’s counsel spoke on her behalf. The court concluded that the judgment of separate maintenance had addressed the issue of the pension and that this argument concerning this pension could have been and should have been addressed years ago. The court crossed off the word consent on the judgment of divorce and signed it with some handwritten modifications. The judgment of divorce provided that: (1) neither party would receive alimony, (2) all rights in the parties’ time-share were awarded to plaintiff, (3) each were to retain the property in their possession and (4) the provisions of the separate maintenance judgment were incorporated into the judgment of divorce.

On November 28, 2016, the court denied plaintiff’s motion for reconsideration and entered an order directing preparation of a Qualified Domestic Relations Order (QDRO), so as to provide for defendant’s receipt of 50% of plaintiff’s pension.

Plaintiff appealed to this Court.

The property division and support provisions of a judgment of separate maintenance do not preclude a court from addressing those issues in a later divorce.

It is mandatory that the court dispose of the related matters of alimony, support and property.  Accordingly, the court erred in concluding that the judgment of separate maintenance necessarily controlled. Plaintiff argues that it was inequitable to award half his pension to defendant while defendant was permitted to keep her full pension. Given that this division was rendered pursuant to a default judgment entered at a hearing at which plaintiff was not permitted to participate and because the pensions represented the parties’ largest liquid assets, we agree with plaintiff that he should be permitted to offer evidence in support of his claim to a portion of defendant’s pension.

This court reverses the trial court’s judgment as to the disposition of defendant’s pension and remand for further proceedings.

At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, our attorneys have the skill and experience you need to address all family law issues that may arise during your divorce. Our legal team, we will guide you through the property division process, negotiating and fighting for the best possible outcome with your divorce decree or separation agreement.

Contact Aldrich Legal Services

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