Chapter 6: Spousal Support

I.   General Considerations

A. Statutory Authority

§6.1   The court’s authority to award spousal support to either party in a divorce action is established by MCL 552.23(1).

Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party, the court may also award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers 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.

In other words, when the property award is insufficient to provide for the suitable support of a party and any children committed to their care, a court may award spousal support to that party after considering all the circumstances of that particular case.

B. When Support Orders May Be Sought

§6.2   Spousal support may be awarded on entry of a judgment of divorce or separate maintenance. MCL 552.23. In case of a default judgment, the party moving for entry of judgment must provide the trial court with sufficient evidence to make the necessary findings and conclusions in order to equitably divide the marital property and determine any other issues, such as spousal support. Koy v Koy, 274 Mich App 653, 735 NW2d 665 (2007).

During the pendency of the case, a party may request a temporary or interim order. MCL 552.13. The request is made by filing a verified motion. Notice and a hearing are required, and the order must state its effective date and whether its provisions may be modified retroactively by a subsequent order. MCR 3.207(C).

Pending entry of a temporary order, spousal support can be requested in an ex parte motion. MCR 3.207(B). An ex parte order requires a showing, set forth in a verified motion or affidavit, that irreparable injury, loss, or damage will result from the delay required to give notice or that giving notice itself will precipitate adverse action before the temporary order can be issued. Id.

C. Spousal Support Established by an Agreement of the Parties

§6.3   There are a number of methods by which the parties may reach enforceable agreements regarding spousal support. The bulk of the law on these methods has developed in the context of property distribution and a more detailed discussion of the methods appears in §§8.4–8.11.

Antenuptial agreements. An antenuptial agreement is a contract entered into before marriage by which the parties can vary or relinquish marital rights, such as spousal support. See generally MCL 557.28, 700.2205.

Further, the Qualified Dispositions in Trust Act was created in 2016 to address some of the uncertainties created by caselaw in this area. See MCL 700.1041 et seq. This statute could replace or be used in addition to an antenuptial agreement. The requirements of this act are as follows:

• The transfer to the trust should be completed 30 days before the marriage, unless otherwise agreed in writing.
• Property placed in an asset protection trust is not considered marital property and cannot be awarded to the trust beneficiary’s spouse in a judgment for annulment of a marriage, divorce, or separate maintenance.
• If the trust beneficiary is the transferor of the qualified disposition, the trust beneficiary’s interest in the qualified disposition or in property that is the subject of the qualified disposition is not considered marital property; is not considered, directly or indirectly, part of the trust beneficiary’s real or personal estate; and must not be awarded to the trust beneficiary’s spouse in a judgment for annulment of a marriage, divorce, or separate maintenance if either
  • the trust beneficiary transferred the property that is the subject of the qualified disposition more than 30 days before the trust beneficiary’s marriage that is the subject of the action or
  • the parties to the marriage agree that this subdivision apples to the qualified disposition.
  
  
  It remains unclear whether or not this law deprives the court of its equitable authority to invade assets protected by a trust when considering MCL 552.28 or .401. Regarding traditional antenuptial agreements, several court decisions have offered guidance on their use.
• An enforceable antenuptial agreement must be in writing, must have been entered voluntarily after full disclosure, and must be fair when executed. Rinvelt v Rinvelt, 190 Mich App 372, 475 NW2d 478 (1991). One issue that may be raised in trying to void an agreement is that facts and circumstances have changed since the agreement was executed that would make its enforcement unfair and unreasonable. See Rinvelt.
• Parties cannot agree to waive a circuit court’s equitable discretion under MCL 552.23(1) and .401 when ordering relief the court deems necessary to adequately support minor children, including through spousal support. Allard v Allard  (On Remand), 318 Mich App 583, 899 NW2d 420 (2017).
• The length of a marriage cannot be deemed a change in circumstances for the purposes of voiding an antenuptial agreement. Reed v Reed, 265 Mich App 131, 693 NW2d 825 (2005). Further, if the agreement expressly contemplated that the parties would separately acquire assets after the marriage, the fact that one party’s assets grew significantly more than the other party’s was foreseeable and not a change in circumstances requiring the court to void the agreement. Id.

Postnuptial agreements. As with prenuptial agreements, postnuptial agreements must meet certain requirements to be valid: They must be fair and equitable, and they must be supported by sufficient consideration. Rockwell v Estate of Rockwell, 24 Mich App 593, 180 NW2d 498 (1970). Postnuptial agreements must not be made in contemplation of divorce or separation. Wright v Wright, 279 Mich App 291, 761 NW2d 443 (2008). A postnuptial agreement signed in connection with an attempted reconciliation is enforceable if it is designed to keep the parties together and does not leave one party in a much better position in the event of divorce. Hodge v Parks, 303 Mich App 552, 844 NW2d 189 (2014). Postnuptial agreements are not invalid per se. In Skaates v Kayser, 333 Mich App 61, 72, 959 NW2d 33 (2020), “some postnuptial agreements may be intended to promote harmonious marital relations and keep the marriage together.” (Quoting Hodge, 303 Mich App at 558–559). In Skaates, the parties negotiated a prenuptial agreement for 16 months before marriage but did not sign the agreement until approximately a month after the marriage. The agreement provided for a “cooling off” period requiring joint marital counseling and a 4-month wait between the time a party first contemplated divorce and the time at which the party could actually file for divorce. The wife filed for divorce without waiting 4 months or going to counseling. She did eventually participate in counseling and put off the divorce. The postnuptial agreement was enforceable because it “initially acknowledge[d] their mutual desire ‘to define and clarify their respective rights in each other’s property and in any jointly owned property [then existing] or might accumulate after [the agreement was signed].” Id. at 75. Notably, the agreement “contain[ed] terms to help support the marriage.” Id. For example, the agreement referred “to the creation of a joint marital checking account.” Id. In addition, the agreement did not significantly favor one spouse over the other and did not offend public policy by promoting divorce.

Domestic relations mediation. A spousal support dispute may be referred for domestic relations mediation under MCR 3.216. This mediation is not binding. See MCR 3.216(I). To be enforceable, any resulting settlement agreement must be put in writing, signed by the parties and their attorneys, or placed on the court’s record when reached, and acknowledged by the parties at the eventual hearing for entry of the judgment of divorce. MCR 3.216(H)(7).

Private mediation. On stipulation of the parties, private mediation may be used. See §§1.38–1.43 for further discussion of court rule and private mediation.

Arbitration. Generally, arbitration is available on stipulation of the parties. MCL 600.5070 et seq.; MCR 3.216(A)(4); Dick v Dick, 210 Mich App 576, 534 NW2d 185 (1995). Once arbitration is chosen, the parties must proceed under the domestic relations arbitration statute, Uniform Arbitration Act, and court rule. Dick; see MCL 600.5070 et seq., 691.1681 et seq.; MCR 3.602. See §§1.44–1.45 for further discussion of domestic relations arbitration.

Settlement agreements. Courts are bound by the parties’ agreement regarding a property settlement reached through negotiation and agreement absent fraud, duress, or mutual mistake, Lentz v Lentz, 271 Mich App 465, 721 NW2d 861 (2006); Keyser v Keyser, 182 Mich App 268, 451 NW2d 587 (1990), although the court remains free to exercise its discretion on issues like spousal support, see Kline v Kline, 92 Mich App 62, 284 NW2d 488 (1979). Once an agreement is merged into a judgment of divorce, it becomes the order of the court and can be enforced by execution, attachment, and garnishment. See Landy v Landy, 131 Mich App 519, 345 NW2d 720 (1984). The agreement must be written and signed by the parties or their attorneys or it must be made in open court. Fear v Rogers, 207 Mich App 642, 526 NW2d 197 (1994).