What is a Maryland Legal Separation Agreement?
A Maryland legal separation agreement is a document that outlines the terms by which a married couple agreeing to separate will live and will treat one another in that time. A legal separation does not end a marriage. Instead, it allows the parties to separate while they are legally still married. While legal separations can be temporary, many people living apart from their spouses never seek a divorce. Legal separations also allow couples to start divorcing with less difficulty.
Married people in Maryland can use a legal separation agreement to help them define their relationships with their spouses during a separation. The agreement does not consider things like the duration of the separation, dates for which all of the things in the agreement must remain in effect, the amount of time until a divorce is filed, the duration to which the terms last if a divorce is filed or the requirements of the court to which the agreement must be supplied once a divorce is filed .
Sometimes, people who have legally separated don’t want to pursue divorces. Even with the breakup of relationships, some people don’t want to live with the stigma of being divorced. Usually, the couples who don’t pursue divorces are older and have been married for many years. Many people who were married for a long time and who have many children feel that a divorce is unnecessary. These people may consider divorce to be too harsh and feel a divorce would be too damaging to their reputations. They may think that a divorce will force them to seek some kind of alimony or child support payments and that those payments will continue until their children graduate from college if they have young adult children. Many people who are not ill or incapacitated do not want to be perceived as being unable to handle their own financial affairs.
Essential Components of a Legal Separation Agreement
Financial considerations are a major part of any legal separation agreement. Spouses must decide how their incomes and expenses will be divided in the years to come and who will be responsible for what, in detail. Financial issues include:
In Maryland, property owned by a couple is divided upon divorce, rather than separation. But legal separation provides an opportunity to determine and divide assets without the divorce process. Any time property is given to one spouse or both during the separation, such as a retirement contribution, inheritance, or gift, it will become marital property for the purposes of divorce.
Parents who have separated but have not filed for divorce may still negotiate child custody and child support arrangements. A separation agreement can outline when the child will spend with each parent, where the child will live, and how the child’s expenses will be divided.
Child support can be calculated based on the Maryland Child Support Guidelines. The guidelines use an income shares model; a calculator may help couples estimate their obligations.
The parties may also create a plan for how medical expenses, education, and other expenses can be divided fairly.
An agreement may provide temporary or permanent spousal support. Alimony can help a lower-earning spouse cover day-to-day expenses as he or she transitions to being single.
It is not possible to understand the mandate for legal separation agreements in Maryland family law without gaining a sense of the overall beginning-to-end process. Each case is different, and it’s important to consult your family law attorney on how to get started, specific instructions for preparing a separation agreement, and exactly what should be included.
Obtaining a Legal Separation in Maryland
To begin the legal separation process in Maryland, an individual must first consult with a qualified family law attorney in order to discuss the reasons and desire for separation, including the terms that may be included- such as custody arrangements, child support, alimony, property division, and other support issues.
The personal information that is typically required from each spouse includes:
The next step in the legal separation process is negotiation between the parties to create terms of the legal separation agreement. These are voluntary decisions, and may be renegotiated at any time by both spouses. Children, assets, and debt issues are often the most contentious topics. Every separation agreement must include grounds for separation, the date when the separation occurred, which spouse will be the Plaintiff in a subsequent divorce action, and any other negotiated terms.
If the parties have agreed, their Attorney will draft a Separation Agreement, which is a legally binding document that will be filed with the Court at a later date if they ultimately wish to proceed with a divorce action. A separation agreement must be voluntary, reasonable, and must state on its face that the parties have executed it voluntarily.
The separation agreement is then submitted to the Court for review; the Judge will either approve or reject it. If one or both parties are unhappy with the separation agreement, the court will arrange a conference or hearing on the issues that are in dispute. If an agreement cannot be reached, the case will then go to trial. Likewise, if an agreement is reached, a Settlement Conference is scheduled before a Judge, who will listen to both sides and ultimately make a decision.
If you are considering legal separation it is important to know that separating does not sever your marital status. After one year of separation, either party may file for a no fault divorce. Once the divorce is final, you will be able to remarry. In the event that you have not been married for at least a year or more (on the separation date), you may be required to provide grounds for divorce.
Your Rights and Responsibilities During Separation
When a couple legally separates in Maryland, it is important to understand the legal rights that both parties have and what limitations may apply. Generally, provisions for the temporary use of property are included.
If the spouses cannot work out an agreement about the use of the marital home, a judge can make an order. It is not uncommon for the judge to allow the spouse with physical care of the children to remain in the home and for the other spouse to pay the mortgage, though the judge may determine that the other spouse does not have to do so. Provisions for child support and visitation are sometimes included as well.
A legal separation agreement is not a divorce. Therefore, each spouse retains all of the legal rights provided in Maryland law. Neither spouse can remarry without first obtaining a divorce. Although Maryland does not require a period of separation before filing for divorce, it does not allow divorcing spouses to be together on certain occasions, such as attending a Christmas party together, without permission of the court.
The legal separation agreement should delineate the circumstances under which one spouse will have physical custody of the children, visitation granted to the other spouse and whether any other person may reside with the couple. Both spouses may agree that one will not remove the children from the geographic location. If the former spouses choose to relocate after the divorce, they may have to attend to issues of child custody and visitation and the relocation may be denied by the court.
It is common for one spouse to have exclusive use of the family car. Because the situation may change, the agreement should stipulate rental and automobile payments that one spouse will pay, who will pay insurance and who will be responsible for maintenance. If the parties are jointly listed on a credit account, the agreement should stipulate who will be responsible for that debt and how the debt will be paid. The legal separation agreement will have a definitive statement that unless either party obtains an order from the court, leaving the other party not otherwise in danger, neither of the parties may transfer property without the other party’s consent.
Advantages of a Legal Separation Compared to a Divorce
When couples are having marital problems, there are several potential avenues to explore. One of these options is a legal separation agreement. There are advantages for a couple to pursue a legal separation instead of a divorce and each situation requires careful analysis. The following are some of the pros and cons of legal separation: First, a legal separation agreement allows a couple to take time apart from each other to test for compatibility and to see what life is like on their own. This time apart gives them room to think about what they really want rather than simply separating themselves due to conflict. Second, if a person is unsure about whether or not they want to get divorced, a legal separation agreement may be beneficial as it gives that person time to consider the next steps while still living in the same home as their spouse. It also saves the cost of proceeding with a divorce case only to later change their mind when it is too late. Third, a legal separation agreement gives a couple time to work on their marriage in a less stressful environment. The separation helps cool off the situation so that both people have a better opportunity to end things amicably , without fighting over money, property, or other assets. Fourth, sometimes separation is necessary due to one spouse’s behavior. Sometimes, domestic abuse forces one spouse to move out of the home. Separation also enables a victim to secure the home, which can ultimately lead to reconciliation later. Fifth, sometimes a person needs time to separate from the other party in order to protect themselves from another’s finances. Separating accounts, identifying separate property, and living separately may result in financial benefits for one spouse. Sixth, when a person is unable to handle the decision of divorce, but knows it is not in their best interest to remain with their spouse, a legal separation agreement gives them the chance to separate while retaining all the benefits of marriage. This includes protecting health insurance, tax returns, inheritance rights, and other factors. Finally, separating helps couples identify and divide their assets properly prior to a divorce. This prevents one person from unnecessarily harming the other person through use of their assets or through their jointly held … .
Challenges and Considerations with a Legal Separation
While a legal separation may be a productive alternative to divorce for some couples, it may be important for you to consider the benefits, as well as the potential consequences and challenges of a legal separation. If you and your spouse find that you had better communication before signing the legal separation agreement than you do after, perhaps you were not ready to separate. If a certain level of conflict is deep-rooted in your marriage, a legal separation may not be enough to repair the relationship, outside of an environment where you two are living in different homes and not resolving the issues that got you there.
There is such a thing as an "in house separation," where the couple maintains their lives together in their home but just creates some physical boundaries to provide space to air frustrations in their relationship. For example, you and your spouse may choose to have separate bedrooms, or perhaps you choose to avoid being together at holidays and big family gatherings until you feel you can resolve your underlying relationship issues.
If you suspect that you will progress towards divorce, or if that is where you and your spouse believe you are headed, you may want to consider filing for divorce instead of legal separation. This is because filing legal separation paperwork and then filing divorce paperwork can be a lengthy process, and at the least, will double your fees and costs for the legal process.
Personal issues you feel impact your marital relationship may not resolve after a legal separation, meaning you are still left with the same roots of those issues after the separation. Although the legal separation may have paid off for some couples, there might be some you where progress in that area.
How to Modify or End a Separation Agreement
Modification and Termination of a Legal Separation Agreement:
As with any agreement, either party to the separation agreement may request to modify or terminate the separation agreement if there are changed circumstances that warrant doing so. Generally, the party seeking to modify the separation agreement under these changed circumstances will need to show that there was a substantial change in circumstances that would make the existing support obligations (such as child support and alimony) unconscionable or unjust. The specific procedure for modifying an agreement will depend on whether the separation agreement used a judicially adopted form or whether the parties negotiated the terms of the agreement. If the parties used the form separation agreement adopted by the Maryland Courts, then any modification must be in writing, signed by both parties and entered as an order of the court. If a separation agreement was negotiated by the parties, the terms of the agreement itself will address whether the agreement is modifiable and the procedure to do so.
In some cases, the parties may be able to reconcile before any divorce is filed. In this instance, reconciling spouses are free to seek either a divorce or a limited divorce (in certain cases this may also be referred to as a legal separation). However, sometimes the reconciliation effort does not last. In that instance, the parties may decide to file for an absolute divorce and will be bound by the previously agreed upon terms of the separation agreement, unless they agree otherwise.
In addition, in some States the filing of a legal separation formally begins the divorce process. However, this is not the case in Maryland. Maryland is one of the States that allow parties to enter into a legal separation agreement, but neither spouse is bound to file for divorce. Moreover, there is no penalty for the spouse who does not file for divorce, whereas in some States spouses are required to file for divorce after a certain amount of time. Reconciliation of the parties and reconciling subsequent to a legal separation agreement does not foreclose the right of either spouse to file for divorce in Maryland. As noted above, pending issues such as child custody and child support, alimony/spousal support and the distribution of any marital property can be addressed in the separation agreement in Maryland. Therefore, any credit given on those issues in the separation agreement can be taken into account in determining the final distribution of assets. In many cases, courts in Maryland will enforce the terms of a separation agreement as a way to encourage showing of good faith on the part of the parties to freely negotiate the rights and responsibilities of the parties. However, any provisions of a separation agreement in Maryland (and any other State) that are in contravention of the law or public policy will be unenforceable.
A client should carefully discuss with their divorce lawyer what the terms of the Maryland separation agreement that are favorable to him/her and whether it is advisable to include those terms in the final divorce decree. A party should never assume that the separation agreement will be incorporated as a final divorce decree. If there are terms of the separation agreement that a party wishes to carry forward into the final decree, those terms should be incorporated into the final decree.
In addition, if there are terms of the separation agreement that are agreed upon and strongly in favor of the party’s position, a party may insist that those terms be included in the final decree, including terms that may be outside of the scope of a judge’s ability to order (i.e., alimony); although the party run the risk in such cases that the Court may determine that some of those terms will be improper or not enforceable, or require changing the wording to assure that they are mandatory and not permissive. A party should also be aware, however, that a judge may decide that incorporating a separation agreement into the final divorce judgment may keep the Court from altering the terms of the agreement in a manner more beneficial to a party than the separation agreement’s terms already would do.
Therefore, in order to gain some level of comfort as to what will occur after the legal separation, but at the same time not placing yourself at a disadvantage when you seek the final divorce decree, a party should strongly consider having an experienced Maryland divorce lawyer involved.
Seeking Legal Help in Maryland
When looking for an experienced Maryland divorce lawyer, it is advised to go through recommendations from friends or family who have been establish that the lawyer has experience with a range of divorce settlements and legal separation agreements. This experience will be invaluable when attempting to resolve asset distribution, child custody, and spousal support. Experienced attorneys have worked on cases similar to their client’s situation and understand preventative measures that can be taken before the marriage or domestic partnership dissolves as well as legal ramifications of a few key clauses in legal separation agreements. An attorney that specializes in family law can explain payment of attorney’s fees, mediation for children visitation and separating retirement assets , if applicable.
Some couples may be able to reach a legal separation agreement without the assistance of an attorney. In the case of uncontested divorces, legal representation may not be necessary. The responsibilities as well as rights of parties can be agreed upon beforehand and can help make the process smoother. A judge is always required for the separation to take effect, but it often does not need to be formally filed with the court.
Consulting with an experienced attorney can help users to make informed decisions about how agreements affect certain areas of their future, such as wages, children, and even health insurance coverage. Legal separation agreements are the best way to fully resolve issues without the need for extensive litigation. The assistance of skilled lawyers can make the process of separation that much faster, easier, and less painful overall.
Leave a Reply