Most states encourage couples who are going through a divorce to reach a voluntary separation agreement. A separation agreement in a Maryland divorce can deal with important issues like child custody and the distribution of marital property.
However, couples are not free to agree to whatever they want. The court retains the power to modify a separation agreement over key parts of the divorce.
A separation agreement is typically drawn up privately and can be used as evidence to obtain a divorce when the ground is voluntary separation. It can be oral or written.
What Can Be Contained in a Maryland Separation Agreement?
All of the important elements of the divorce may be contained in a separation agreement including:
- The custody, care and support of the children including child support;
- The amount of alimony support one spouse will contribute to the other;
- Provisions for the continuation of health insurance benefits; and;
- The division of all property while the spouses are living apart, including what will happen to homes, cars and other properties post-divorce.
A separation agreement is not a divorce decree. It does not terminate the marriage nor does it free the parties to remarry. The parties are not free to have sexual relations with other people. This still constitutes adultery.
Do The Maryland Courts Encourage Separation Agreements?
The courts in Maryland welcome the parties working together on their divorce to avoid lengthy and costly litigation. Separation agreements are favored as long as they are not unreasonable or in violation of public policy.
How to Negotiate a Maryland Separation Agreement
Parties who seek to draw up a separation agreement may quickly run into obstacles. Issues like custody and working out what constitutes marital and separate property are often complicated. It may be risky to work on a separation agreement without help from a lawyer.
An experienced Maryland divorce attorney can help you draw up a separation agreement and safeguard your rights in working on a legally binding document.
When parties draw up a separation agreement without knowledge of their legal rights, it may fail to address all of the issues between them in the future.
When only one party is represented by an attorney, the party who has not retained a lawyer should seek an attorney’s advice before finalizing the separation agreement. There are instances where provisions of the agreement or even the entire agreement might be unenforceable and voided by the court.
The Scope of Maryland Separation Agreements
A Maryland separation agreement can be very wide in its scope. The separating spouses may make a valid and enforceable agreement that includes property rights, alimony, and personal rights.
It can contain clauses regarding custody and visitation of children, child support, child tax entitlements, debts, future ownership of furniture, pets, cars, health insurance, retirement, life insurance, and survivor benefits, bank accounts and business and investment interests. Attorney fees may also be included in a separation agreement.
Can a Separation Agreement Include Provisions a Court Would Not Order?
Parties may draw up provisions in a separation agreement that a court would not typically order. However, once included in the separation agreement, these terms can be enforced by court order.
Enforcement of Separation Agreements in Maryland
Where a separation agreement has been incorporated into a divorce decree, the terms of the agreement are enforceable either through contempt proceedings or as an independent contract.
A separation agreement cannot be rescinded unless a court finds that the agreement is unconscionable or a product of fraud, duress, or undue influence, the Maryland Court of Appeals ruled in the case of Vincent v. Palmer.
Can a Court in Maryland Modify or Change the Terms of a Separation Agreement?
A court in Maryland has the power to modify any provision related to the custody, care, education, or support of any minor child of the parties when the modification would be in the best interests of the child.
Courts in Maryland have the power to modify any provision of an agreement related to spousal support or alimony unless the agreement contains:
- An express waiver of alimony or spousal support, or
- A specific provision that states parts of the agreement related to alimony or spousal support are not subject to court modification.
The Power of the Court When the Meaning of a Maryland Separation Agreement is Ambiguous
A Maryland separation agreement becomes a binding contract when the court has approved it. It is subject to the rules governing all contracts. Any questions related to the intent of the contract must be resolved by reference to the language of the agreement. The words of the contract determine its meaning unless there is ambiguity.
The court is obligated to give full effect to the plain meaning of an agreement without second-guessing the intentions of the parties in reaching the agreement.
The words in an agreement are given their usual meaning unless the parties clearly specify a technical or special meaning to given terms. The divorce court applies the test of what a “reasonable person” would assume the contract meant.
However, contractual language may be ambiguous when it could be reasonably interpreted in more than one way.
In these cases, a Maryland divorce court reviews the contract itself. The court must consider the character of the contract, the facts, the purpose of the contract and the circumstances of the two parties at the time it was executed.
Parties should not draw up separation agreements that are deliberately ambiguous in the assumption that the court will rewrite and correct agreements. It is not the court’s task to rewrite an agreement to clarify it or to address the unhappiness of one or more parties about the details in the contract. , However, when a court finds an agreement to be vague, the court may take evidence to clarify its meaning.
Can a Divorce Court Invalidate a Maryland Separation Agreement?
On occasions, a Maryland divorce may not accept a separation agreement. Usually, this occurs when a court believes it is blatantly unfair to one party or a party was under duress. As with contracts generally, a separation agreement is voidable and subject to cancellation or annulment.
A court will strike out an agreement if it can be shown it was unconscionable or was obtained under fraud, duress, or undue influence. These areas can be difficult to prove.
Our Maryland divorce lawyers are sometimes asked what happens if only one section of a separation agreement was judged to be unfair or unconscionable. Typically, one party may not agree to the favorable part of the agreement and remove a less desirable part. Wiping out the obligation of one of the spouses may render the rest of the contract unfair. A court is more likely to invalidate the whole agreement than strike out a single clause and retain the rest of the agreement.
How Long Must Couples Wait for a Divorce After Drawing Up a Separation Agreement?
Historically, when spouses in Maryland agreed to split up and amicably work out a separation agreement, state law made them wait a year to file for divorce. If the spouses stay under the same roof for even a night, the clock resets and they must wait a further 12 months.
However, a law enacted in 2015 eliminated the waiting period for couples without minor children who mutually consent to divorce and agree on property division. Couples with children still have to live apart for a year before they can file for divorce, even if they have resolved their custody and support issues.
When Can You Date Again After Separation in Maryland?
Some spouses believe once a separation agreement has been drawn up, they are free to date. This is not the case. In the state of Maryland, it is still considered adultery if you date and enter sexual relations with someone else who is not your spouse, even if you are separated.
The state requires husbands and wives to be separated for a year before they can get divorced. Couples without minor children can get divorced more quickly if they have drawn up a separation agreement. Once you are divorced, you are free to start dating
The Benefits of Separation Agreements in Maryland
When couples draw up a separation agreement and resolve all issues their divorce is uncontested. This may be advantageous in that it negates the need for lengthy court battles over issues such as the custody of children, child support, alimony and property from the marriage.
Typically, uncontested divorces in Maryland are obtained more quickly and avoid the stress of bitterly contested divorces or those where a party is seeking to pin fault on another.
Contact a Family Law Attorney over Separation Agreements in a Maryland Divorce
The attorneys at the Law Offices of G. Randolph Rice, Jr., LLC understand the many pressures of divorce. We handle all areas of family law. Our attorneys can help you draw up a separation agreement and avoid the pitfalls that may lead to it being invalidated by the divorce courts. Please contact us today at (410) 694-7291.