The time between deciding to separate and being granted a divorce is uncharted territory for many Maryland couples. A separation agreement can provide direction while your divorce is pending, and can make the divorce process much easier. We offer below some answers to the most frequent questions we hear about separation agreements at the Law Office of Shelly M. Ingram.
Whether through mediation, while involved in litigation, or through the Collaborative process, you and your spouse can negotiate a separation agreement and be as creative as needed to address all the unique issues related to dissolution of your marriage. What can be, and what should be, included in your separation agreement is best determined on a case-by-case basis. It is important to seek the independent advice of an experienced attorney when considering entering into a separation agreement.
Many clients are interested in obtaining a "legal separation." In Maryland, you cannot petition the court for a legal separation. You and your spouse can sign a contractual document or separation agreement that states that the two of you have agreed that you can live as though you are unmarried, which would be the equivalent of a contractual separation. The court will consider you to be married until they have granted you a divorce. For the purposes of divorce, you are physically separated from your spouse when you stop sleeping under the same roof and stop having sex.
Depending upon the circumstances of your case, you may need to be physically separated for up to 12 months before you obtain a final divorce. During this time, while living apart, a separation agreement can act as a legally binding document that directs the course of your financial conduct, both during separation and afterwards. Financially, a separation agreement can apportion marital assets and preserve assets that are non-marital. If you and your spouse own real property, a separation agreement can provide for the sale of a marital home and payment of the mortgage and other household expenses while the property is listed for sale. In cases involving children, a separation agreement can define your parental rights, clarify holiday access schedules, and set forth guidelines for important parental decision-making.
Following your divorce hearing, the court will enter a Judgment of Absolute Divorce, which incorporates the terms of your Separation Agreement, but does not merge the document into the final Judgment. This means that your Separation Agreement will continue to exist as a distinct legal contract following your divorce. The significance of this distinction is in the enforcement of your Agreement. If your spouse does not follow the terms of your Agreement, you may seek enforcement of the Agreement through contractual remedies, or request that the court hold your spouse in contempt of a court order.
Your spouse cannot set aside your Separation Agreement solely on the basis that they have become dissatisfied with the agreed upon terms. When you and your spouse entered into the Separation Agreement, you signed a contract. To set aside the terms of your agreement (a contract), your spouse must show that their consent to enter into the contract was secured by means of duress, fraud, or undue influence.
The answers to these questions are general in nature and are not intended to create an attorney-client relationship or to replace specific legal advice. We invite you to contact our office at (301) 658-7354 to schedule a consultation, so that we can learn about the facts of your case and respond to the particulars of your unique situation.