The Legal Separation Process in Maryland
When it comes to the dissolution of a marriage, most people think of divorce as the only path towards separation. In Maryland, however, divorce is not the only way to separate from your spouse. Legal separation, the second option for marital separation, may be appropriate if you do not yet want to get a divorce or you cannot file for a divorce due to limited grounds for filing (although limited grounds for filing a divorce no longer apply as of October 1, 2015). Unlike a divorce, separating legally does not break the married status of an individual. The legal separation concept is similar to divorce. However, a divorce is a legal termination of a marriage whereas a legal separation is used to describe the period of time after the parties have separated. The legal definition of "legally separated" in Maryland is "living separate and apart under circumstances that indicate the complete and final intent of the party to end the marital relationship."
A legal separation does not require a "pleading" in the Circuit Court . However, the fact of the separation and the intent of the separation should be documented so that in the event of divorce, there is a record created showing that the couple does indeed live separate and apart. The most commonly used form of documenting a legal separation is a Separation and Property Settlement Agreement. There are many other forms of documenting the history of the separation. Likewise, the date of the separation should be used in drafting the agreement when the separation began. The date is important for purposes of identifying the date used to determine what property has been acquired during the separation. This date is also important for purposes of determining from which date the parties can file for divorce. In Maryland, once the parties have been living separate and apart under circumstances that indicate an intent to end the marital relationship for a period of 1 year (2 years if still married and seeking an absolute divorce after having previously been granted a limited divorce), then the court has the power to grant a divorce to one or both of the parties.
Document Your Eligibility
Legal separation in Maryland requires that you and your spouse are either legally separated by a court or living separate and apart without cohabitation. A separation agreement can be entered into even if on the same property so long as you are living separate from one another.
In order to get a court order declaring that you and your spouse are legally separated, you will have to:
Some couples choose to separate without actually going to the court first to ask for legal separation. While it is not required by law, this process follows a few simple steps that make the process easier. Upon completing these steps, you will be considered legally separated and free to remarry without going to court for a decree of legal separation.
The two main criteria in Maryland residency requirements pertain to you and your spouse having lived together in the state for a minimum of one year and one of you being a Maryland resident for six months prior to filing. This is not the case with legal separations solely completed through the execution of separation agreements. You do not need to meet residency requirements to separate. However, in order to file a Separation Agreement with a Circuit Court to be incorporated into a Judgment of Absolute Divorce, at least one party must have resided in that county for at least one year.
A Step-by-Step Overview of Filing for Legal Separation
Steps to File for Legal Separation in Maryland
Regardless of whether you are filing for a no-fault or fault-based legal separation, the process is relatively straightforward. You will need to prepare some specific paperwork for the filing and be mindful about which court you should file with. A reliable Maryland legal separation lawyer can help you prepare the required paperwork to ensure that your petition is filed correctly and efficiently.
To initiate a legal separation, you will need to file a written complaint that can be obtained online or a local circuit court office. The court offices will have a business office that provides these documents to the public free of charge. A circuit court clerk can help individuals fill out the forms if assistance is needed.
For the paperwork, you will need to provide: The filing fee for the divorce petition is typically between $120 and $150, depending on the county. Fees must be paid at the time you file the petition. If you have trouble paying the fee and can prove it, ask for a fee waiver.
Filing the papers can be intimidating for many people, but your separation through the court system is not complete until the filing paperwork is submitted. That means that the moment you file, your spouse is no longer responsible for making decisions for you—such as financial choices or where you live. It marks the beginning of your legal separation. However, be mindful that your spouse will need to be notified of the filing in a process known as "service."
In Maryland, you will have one year from the date of the separation notification (service) before you can file for divorce. Certain circumstances can end legal separation before the year is up, such as when a spouse dies or abandons the other.
Needed Paperwork
To successfully file for legal separation in Maryland, you need to prepare and gather a variety of forms before filing for a separation with the Court. While your Maryland divorce attorney can do all the work in filing the documents on your behalf, it is still beneficial to familiarize yourself with the forms and the basics of filing them. You will have to present the "Complaint of Limited Divorce", which is a legal complaint/court filing. This paperwork asks the court to give you a limited divorce — or separation — based on the legal grounds you select for your separation.
In the short form of the complaint/limited divorce you will need the following documents: Financial statement – such as child support guidelines, alimony, property, financial disclosure forms are examples of financial statements that will be required to be completed. In addition to filling out a detailed financial statement, the financial information needs to be signed under penalty of perjury. the financial disclosure is a signature that states the information is true and complete. Original got married and marriage certificate – your original in hand document that states your date of marriage and place. This document is also known as the certificate of marriage. If you are unsure where this document is located, your local Clerk’s office will have a record of the place and date of the marriage event. It simply costs a small fee to obtain this document. Consent – if you and your spouse agree on all issues, and wish to file a Consent (desire to separate and file for limited divorce), you must proceed with a consent to file as well as do one administrative judge who will sign your consent for limitations of time in the review of parties issues.
Negotiate Separation Terms
After the decision to legally separate is made, many couples must contend with how to divide their assets, as well as child custody issues. When a couple can reach an agreement outside of court, it may be advantageous for them to retain an attorney to draft a separation agreement. This may be a more amicable way to handle the often contentious process of divorce.
The parties may be able to negotiate agreements for key divorce-related issues, including:
Custody arrangements. A legal separation does not terminate the parent-child relationship in Maryland. When children are involved, there must be agreements in place when determining custody. How will the children divide their time between their parents? Will they attend public school? Are there any legal or medical issues to address?
Child support terms. Child support is based on the needs of the child and the parents’ ability to pay. Child support amounts are determined using the Maryland child support guidelines, which factor in income levels, child care expenses , health insurance and other elements that impact the child’s needs. Child support typically shifts in amount and application depending on whether the child is living with one parent the majority of the time (primary physical custody) or switching back and forth between households (shared physical custody).
Medical care considerations. Parents must also make decisions about the child’s health care, especially if the child has a special medical condition.
Property distribution terms. Especially if the couple has significant assets, property division is an essential component of divorce. Most property acquired during the marriage is considered marital property and is subject to equitable distribution. If the couple can reach an agreement about how to divide their assets, the court will generally accept the terms if they are deemed fair and reasonable. A separation agreement should list all of the parties’ assets, including their retirement accounts, real estate, stock options and more.
Maintenance terms. Maintenance is another name for spousal support. A legal separation does not automatically entitle either spouse to maintenance. It is intended both as a means for the lower-earning spouse to support him or herself and as a transitional tool to help both spouses find employment or schooling to enable them to earn a living wage.
Consultation and Lawyer Representation
Whether you and your spouse pursue a divorce or a separation, both processes benefit from the involvement of an experienced family law attorney. However, legal separation is a less-common remedy, because parties are usually hoping to dissolve their marriage over legal separation.
Family law firms will often have their own in-house mediators on staff to help couples negotiate. Mediation is a strong option when there are no significant assets to protect or children to raise, because most of the work involved in preparing for separation and filing for legal separation is relatively simple.
When you hire a divorce attorney for legal separation, chances are that the attorney’s firm is going to also use mediation to negotiate practical terms for dividing assets and responsibilities. If there is ongoing conflict with your spouse or significant assets to divide in addition to child custody concerns, then retaining a divorce attorney is probably your best option.
The progression from legal separation to divorce is much smoother when both parties have already outlined terms with the help of a mediator, or even a less adversarial attorney. You can save time and money by finding out if you and your spouse can agree on specifics in your separation agreement and take care of business without involving the court system until circumstances force you to move on to divorce.
The attorney-client relationship outlined in the next step can provide an additional layer of support throughout the legal separation and eventual divorce process.
FAQs
What is the difference between legal separation and divorce?
Maryland does not recognize legal separation. State law only recognizes two marital statuses: married and not married. "Separation" outside of a divorce has no legal meaning in Maryland. However, a "Decree of Limited Divorce" is granted based on a couple’s formal decision to live apart. It temporarily addresses issues such as spousal support, child custody, visitation and child support.
Will my spouse be notified if I file for legal separation?
Yes. The moment you file for a Decree of Limited Divorce, your spouse will be notified , and they will be given 30 days to respond to your complaint.
How long can I expect it to take before I have my separation agreement or get my decree of limited divorce?
It usually takes anywhere from a few weeks to over a few months before agreeing on the terms of a separation agreement. Because it isn’t an actual divorce, you won’t have that long of a wait time for a court date to finalize your separation. When you file a complaint to a judge, they most likely will set a trial date with you and your attorneys anywhere from a couple of weeks to a couple of months out from when the complaint is filed.
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