An Overview of Separation Agreements in Maryland

Separation Agreement

In the context of Maryland family law, a separation agreement is a contract between you and your soon to be former spouse or domestic partner that divides property, debts, and/or other issues that arise during a divorce action. A separation agreement is a way of providing a level of autonomy during a time when you and your spouse have decided it’s time to live separate and apart for a period of time or definitely. Although the name suggests purpose limited to parties that decide to separate prior to divorce or annulment proceedings, the fact is that most separation Agreements are entered into at the beginning stages of a divorce case, before a Final Judgment of Divorce is entered by the court . The agreement, however, may address issues while you are separated or address the financial aspects of the marriage including asset division and spousal support.
The separation agreement is an important element to take into consideration early on in a divorce case. While you are living apart from your spouse or other party, there are many important pieces of information and terms that you will want to consider with your attorney whether they are spelled out in a formal separation agreement or not. Maintaining open communication with your legal counsel while pursuing a divorce will help you decide the divorce process that best suits the needs of you and your family.

Components of a Maryland Separation Agreement

A Maryland Separation/Property Settlement Agreement is a document that provides for the severance, or termination, of the couple’s marital status. In addition to a few statutory requirements, there are four key areas to address in a comprehensive Separation Agreement.

Child Custody and Support. Any custody and visitation schedule for minor children should be included in a comprehensive separation agreement. In addition, it should provide for both child support (generally where one parent is the primary custodial parent) and an analysis of dividing extraordinary expenses of the children (such as uninsured medical/dependent care, private schooling, extracurricular, etc.) especially in shared custody situations. Parties may also wish to provide for how to address Child Tax Deductions or Education Tax credits.
Spousal Support. The Agreement should provide for how, if at all, spousal support will be paid. A common provision is that "As and for spousal support, Husband [or Wife] waives any claim to spousal support and Wife waives any claim to spousal support." For an indefinite period of time (or where the length of the marriage is more than 10 years in length) it may be advisable to include a true, negotiated alimony award that provides for the amount, duration, payor, etc. Other options include a clause that places certain limitations on the duration of future support – ie. that support shall not extend "beyond December 31, 2018 or until Husband/ Wife remarries, whichever comes first" and/or a clause that provides that future support will decrease in a stepped fashion over time. Finally, one should consider whether the court should retain jurisdiction and the right to modify spousal support in the future upon the occurrence of certain material changes in circumstances such a net increase or decrease in income.
Equitable Division of Property / Liability. Any assets and debts of the parties can be divided by agreement. Generally speaking, most Separation Agreements will utilize a two-step process for identifying the property of the marriage. The first step is an inventory of assets. The second step is a division of the identified assets and debts. In Maryland, property that is subject to equitable division includes all property acquired by either party during the marriage. (Miller v. Miller, 95 Md. App. 173, cert. denied, 333 Md. 30 (1993).) Any property protected by a prior prenuptial or post-nuptial agreement is excluded from equitable division. Likewise, any property acquired prior to the Marriage Date or after the date of Separation is also non-marital property. These assets may be agreements to be included in a complete and comprehensive Settlement Agreement. However, it is important to remember that only marital property is subject to valuing and distribution by the Court in the event that the parties are unable to agree on the equitable disposition of each asset. (Md. Fam. Law 8-201).

Finally, it is important to note that spousal and child support provisions are modifiable in the future to address material changes in circumstances. The property provisions are not modifiable unless both parties agree.

Legal Grounds for Enforceability

In order to be enforceable in Maryland, a separation agreement must conform with Maryland law. Domestic Relations Article section 8-201(a)(2) of the Annotated Code of Maryland provides that "a separation agreement includes a written and executed agreement between a husband and a wife to live separate and apart without cure and to be free from each other’s interference, authority, and control." The statute goes on to state that the agreement is enforceable if signed by both parties and acknowledged before an official authorized to do so.
Formalities. Although a separation agreement is not required to accompany a complaint for absolute divorce, many practitioners attach the agreement to the complaint at the outset. Stripling v. Stripling, 186 Md. App. 144 (2009). For purposes of judicial review, the marital settlement agreement must be acknowledged before an official authorized to conduct the formalities. MD Code, Cts. & Jud. Proc. § 1-504.
Notwithstanding any requirement that a separation agreement conform with MD Code, Cts. & Jud. Proc. § 1-504, a separation agreement will be considered a binding contract between parties to the marriage, irrespective of the formalities. Stripling at 164. Parties should be cautioned, however, that should the agreement not be attached to a complaint or incomplete in some way, a party’s right to seek a trial to resolve all issues may remain a possibility. Whether that possibility is likely to succeed, however, depends on each case’s specific facts and circumstances.
Generally, there are four requirements for the validity and enforceability of a marital settlement agreement in Maryland. The elements include:

full and frank disclosure of material assets;
lack of fraud or misrepresentation of material fact;
compliance with statutory and public policy requirements; and
execution in good faith, free from duress, coercion, and undue influence.

Maryland courts have regularly enforced separation agreements even when they lack certain statutory formalities. In the non-existence of an attachment to a complaint, a final judgment of absolute divorce may still be granted. However, judicial disapproval or refusal to enforce a separation agreement may occur if the court believes that enforcement would violate statutory requirements or public policy. Stripling at 177 citing Vincent v. Vincent, 30 Md. App. 653 (1976).
Notarization or Recording of Separation Agreements. The absence of notarization or recording of a separation agreement will not necessarily render an otherwise valid and enforceable Agreement unenforceable. Hines v. Stansell, 286 Md. 670 (1980) abrogated by statute on other grounds. As states in Hines, simply failing to notarize or record an agreement will not affect its validity. Hines at 678. If a particular statutory form is to be observed, the courts have generally held that such a requirement will be strictly enforced. If adherence to a certain form is not necessary, the court will examine the reasons why the alleged nonconformity to the statute occurred in an effort to determine whether the parties’ intent was to make it a part of the contract. Hines at 679.
For all the reasons emphasized above, the prudent course of action is to ensure that your separation agreement conforms to the statutory requirements and the instructions of the Judge and/or Family Magistrate.

Advantages of a Separation Agreement

Benefits of a Separation Agreement in Maryland
When spouses separate, having a separation agreement can eliminate some of the uncertainty with being apart and help to provide a framework for the resolution of disputes. Separation agreements are also important in helping to speed the divorce process along. Without an agreement to call on, one or both spouses may wish to seek a divorce grounds from the other spouse. With the exception of desertion and adultery, all Maryland divorce grounds require a period of separation; in fact, even desertion requires a period of separation for a legal desertion to have occurred. By negotiating and entering into a separation agreement, spouses can move from legal separation to divorce quickly and easily.
People often believe that separate living arrangements following the breakup of a marriage are sufficient to meet the requirements for a divorce, but that is untrue. The separation period for a limited divorce in Maryland is one year. When living apart, though, parties often do not work to resolve any of the issues that will ultimately need to be resolved in their divorce.
The issues included in a typical separation agreement include the following:

Common Pitfalls to Avoid

One of the most common mistakes when entering into a separation agreement is not obtaining legal advice and fails to consider potential issues and pitfalls when drafting the agreement. This highlights the necessity of consulting with an experienced family law attorney in Maryland, especially since these agreements can have a significant impact on individuals’ personal and financial lives.
Often agreements are not reached after arm’s length negotiations. It can be beneficial to have the advantage of independent review of the agreement by competent counsel prior to execution. Unfortunately, too many people depend on their spouse’s attorney, often because they can be their "advocate," which can be a precarious position. The problem is that they are not an advocate for your rights, they are not giving you independent legal advice. They do not want to "rock the boat" with the other party. This is dangerous for you, especially if issues become problematic later . You need to be sure you have your own attorney that can focus on your needs, wants and goals.
Other common mistakes include omitting equal treatment for both parties. This underestimation can lead to later claims and problems. Typically, the following topics are neglected:
In some cases, people don’t realize the difference between a trial court judgment and a contractual agreement. Divorce courts may base issues on the law and equity, while contractual agreements are often based on individual circumstances.
Finally, don’t assume that the agreement is final. A separation agreement is a contract. If both parties follow the terms in the separation agreement for the amount of time required by Maryland law, then the agreement can be incorporated into a judgment and thereafter it has the effect of a judgment. However, if either party does not follow the agreement, it becomes incumbent on the other party to prove the terms of the agreement regarding assets, maintenance, child support, divide the post-separation income/assets, etc.

Amendments to a Separation Agreement

If the parties to a separation agreement in Maryland wish to amend or modify the terms of the agreement after it has been executed, there is a process by which the entire agreement is considered again by the parties to the agreement and the parties must express acceptance of the new terms. The process is essentially the same as the terms of the agreement being bargained for and considered by the parties for the first time, with the difference being that the modification will usually apply only prospectively and not to the time period in the past from the date of the separation agreement to the date of the modification.
When should an agreement be modified? Well, the truth is that agreements are more often modified than not, simply because the life changes for most people who are divorced are substantial enough that their circumstances have changed enough that the terms of the separation agreement are no longer applicable. The important thing to remember is that the parties to the agreement have the right to choose to live with the terms of the separation agreement to the extent that they choose or to change the terms of the agreement by mutual agreement.
It can become more difficult for the parties to agree to modify the separation agreement if one of the parties believes that giving anything back to the other party after a division of assets or debts is somehow unfair. The problem, however, is that a court will not abide a separation agreement that is unfair to either party, so if there is a change of circumstances for any reason – loss of income, gain of income or other circumstances that would have resulted in a different division or award under the separation agreement at the time the agreement was done, both parties have a vested interest in coming to terms that are fair to both parties.
The considerations for the modification are exactly the same as the ones that the parties would have considered at the initial separation agreement process. By way of example, parties who have children that become older may decide that the best interests of the children require that the parenting arrangement that was in the initial separation agreement no longer works for the family, and they might want to change that arrangement to address the children’s now changed ages, activities, obligations and interests.

Securing Legal Help

It is critical that you do not enter into a separation agreement without first having it reviewed by an attorney that has a family law practice and experience with separation agreements. An issue that often arises is that a party to a separation agreement was not allowed to review the agreement with an attorney prior to signing the agreement . Generally speaking, if a party to the separation agreement received independent legal advice prior to signing the agreement, then that agreement will be enforceable. That said, if you did not receive any advice if any form prior to signing, there is a chance that the agreement may be voidable, even years later! It is always best practice to have a family law attorney assist you with negotiating the terms of your separation agreement before the parties sign.