Legal Separation in Maryland
Maryland law allows for no-fault divorce on the grounds of: (a) 12-month separation; or (b) mutual consent with a signed separation in place. Maryland law does not have a court proceeding for obtaining the status of “legal separation” in these no-fault cases. Instead, divorcing couples in Maryland generally go from being married to separated to divorced, with the court only getting involved the third state (i.e. divorce).
The closest thing to what people typically think of as a legal separation is the Limited Divorce in Maryland, which recognizes the parties’ status as being separated but will not result in a final divorce or termination of the marriage.
Living Separate and Apart
To be granted a divorce based on a separation for 12 months or based on mutual consent, you need to be living separate and apart from your spouse. In some states, you can live separate and apart but still be living under the same roof. In Maryland you can’t live together in the same home and still be considered separated, even if you are living in different areas of the home and truly leading separate lives. Under Maryland law you must be living in separate homes to be separated for divorce purposes.
You must also prove to the court that you are indeed separated before you will be granted a divorce on separation or mutual consent grounds. If the separation date may be contested later, it is best to create a record by stating the intention to permanently end the marriage in writing and also telling a third party (perhaps a friend or family member). Proving the date of separation is a factual determination, so the court will need some sort of evidence to corroborate the date of separation.
Desertion vs. Separation
How can you start living separate and apart from your spouse to qualify for a no-fault divorce, without being found guilty of desertion, which is a fault-based ground for divorce? A Maryland court will look to the conduct of you and your spouse to distinguish desertion and separation. Just because you move out of the marital bedroom or even the marital residence does not mean that you have deserted the marriage.
To prove actual desertion, whoever files for divorce must prove the following:
The deserting spouse intended to end the marriage;
Cohabitation has ended;
The partner that left was not justified in leaving;
There is no hope of reconciliation;
The partner that remains in the marital home did not consent to the separation;
The desertion has continued uninterrupted.
To prove constructive desertion, the actions of the at-fault spouse must be sufficient to cause the other spouse to leave the marital residence. In cases involving constructive desertion, the following factors are taken into account:
The nature and duration of the misconduct;
The length of time the deserting spouse endured misconduct;
The attempts the deserting spouse made to try to save the marriage.
Separation, as distinguished from desertion, is separating from your spouse while still operating under the rules and standards of the marriage, such as division of marital obligations and duties, both monetary and non-monetary. Usually, a separation and the terms of the separation are discussed and agreed, whereas a desertion is more of a unilateral action by one party, leaving the other party saddled with all the marital obligations.
Ultimately, there is a thin line between desertion and separation under Maryland law. It is therefore important to discuss the specifics of your case with an experienced family law attorney before leaving your spouse.
During the period of separation, and before the divorce is final, it is common to resolve some, if not all, issues through the use of a settlement agreement (also frequently referred to as a “separation agreement”, a “marital settlement agreement” or a “property settlement agreement”). A settlement agreement may document your agreement to live separate and apart from your spouse and divide your property and debts in a mutually acceptable way. If you have minor children, a settlement agreement can also define a custody and visitation arrangement, and the terms of any child support payments. Finally, you can include numerous other provisions, such as language providing for the payment of alimony.
A settlement agreement will usually state that any divorce between you and your spouse will be on the grounds of separation or mutual consent. Once you have lived separate and apart for the applicable time period, or you have the mutual consent of your spouse, then either of you can file for an uncontested divorce.
If you are considering a separation from your spouse, you may decide to hire a family law attorney to draft a settlement agreement for you to give to your spouse or your spouse’s attorney, to review a settlement agreement proposed by your spouse, or to negotiate a settlement agreement with your spouse’s attorney on your behalf. Regardless of what you choose to do, never sign a settlement agreement without first reviewing it with an experienced family law attorney.
Should You Hire an Attorney for a Settlement Agreement?
It is certainly possible to find a settlement agreement in a library or on the internet, perhaps for free or for purchase, and download it for you and your spouse to sign. Although this approach can save you money on the front end, it is usually a bad idea, for a lot of reasons.
First, you may not know what you’re entitled to in connection with your separation and divorce under Maryland law. While you may feel satisfied with the terms of any agreement you have reached with your spouse, those terms could be incredibly unfavorable to you compared to what the court might award you at trial. For example, you may say, “my spouse’s 401(k) wasn’t funded by my salary, so I’ll just waive any interest I may have in it,” not knowing that you could be entitled to 50% of the marital share of that 401(k), regardless of how it was funded.
Second, a settlement agreement drafted for you by an experienced family law attorney will typically include a variety of provisions that protect your interests under Maryland law. If you use a generic online form or document from your local library that is not specific to Maryland, and not tailored to meet your individual needs, you may leave yourself unprotected and susceptible to some very negative legal consequences.
Finally, a settlement agreement that is not drafted or reviewed by an experienced family law attorney may not hold up in court or could be interpreted in a way that was not your intention. There may come a time in the future when you need to ask the court to enforce or clarify the terms of your agreement with respect to child custody and visitation, child support, alimony, or division of property. If those terms were not properly drafted, then you may be forced to spend significant time and money to “fix” things, usually much more than it would have cost if you hired a family law attorney in the first place.
Can You Set Aside or Overturn a Settlement Agreement?
Maryland law is rather harsh in that, once a settlement agreement has been signed by you and your spouse, it is nearly impossible to set aside. There is a long-standing principle in contract law stating that people have the ability to make as good or as bad of a contract as they want. A settlement agreement, which resolves issues arising out of a separation and divorce, can only be set aside in Maryland if it was entered into under “fraud, duress, or undue influence,” or the agreement itself is “unconscionable” (it is so one-sided and unfair that no reasonable or informed person would otherwise agree to it). It is so rare to find a Maryland case where a settlement agreement has been overturned that it can be said you will almost always be held to the terms of the agreement you signed.
There are two exceptions to this rule. First, if you and your spouse sign a new agreement that changes some or all of the terms of your original agreement, then the court can enforce those changes. Second, child custody and child support are always modifiable when there has been a material change in circumstances; and, in most cases, alimony is also modifiable.
Contact a Wayside Legal Divorce Attorney
Wayside Legal LLC is an award-winning law firm located in North Bethesda, Maryland, with years of experience handling divorce proceedings throughout Maryland, D.C., and Virginia. If you are facing a separation and divorce from your spouse, contact a Wayside Legal attorney today for a consultation to discuss your specific situation.