On September 12, 2025, the Court of Appeals told us to think ahead because you do not get a “do-over” divorce.
Some couples decide to stay married and divide their lives and possessions without actually filing for divorce; this is called an action for separate maintenance when filed with the court. Since 1974, the rule for separate maintenance actions allowed re-litigating certain aspects of a court order for separate maintenance if one of the spouses decides to later file for divorce. On September 12, 2025, that law changed. Johnson v Johnson,___ Mich App ___; ___ NW2d ___ (2025) (Docket No. 370181). The rule of Johnson appears to be that if a Judge signed off on your court order for separate maintenance, everything you put into that order is set and enforceable even if one of you later decides to file for divorce.
Why does this matter? Because you need to think about your action for separate maintenance as though it will one day become your divorce. The do-over loophole closed. Johnson provides that whatever you and your spouse place into an agreement signed by you and the Judge will bind you to those exact terms in a subsequent action for divorce, unless you and your spouse together agree to make changes.
But is there any room to maneuver? Rules from cases related to prenuptial agreements may be informative when considering this new bright-line rule from Johnson. For instance, Allard v Allard, 318 Mich App 583, 603; 899 NW2d 420 (2017), told us that the court can alter some aspects of a signed prenuptial agreement. Under Allard, the court has discretion to depart from the terms of your prenuptial agreement and invade a spouse’s separate property when dividing property, award spousal support, and award attorney fees, if doing so is necessary to achieve an equitable distribution. In prenuptial agreements it appears some level of do-over is possible. But remember to distinguish prenuptial agreements from separate maintenance actions because although both contemplate the end of the marriage, a prenuptial agreement is not signed by a Judge while an order for separate maintenance is.
So would Allard allow at least some changes to that Johnson rule? Maybe.
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