In my practice, I frequently get asked by clients if they can file for a “legal separation” from their spouse. Unfortunately, Maryland does not recognize a “legal separation” as a marital status—you are either married or divorced. The closest thing to a “legal separation” is to have a binding contract—called a Separation Agreement—that resolves all of the issues arising out of their marriage. These issues include, but are not limited to, custody, alimony, support, property rights or personal rights. Once a Separation Agreement is in place, parties can live their lives separately while waiting to be divorced.
There are numerous advantages to having a Separation Agreement. First, a Separation Agreement can help parties avoid the time, expense, and uncertainty of contested litigation. Parties can negotiate and enter into a Separation Agreement before initiating Court proceedings, or while proceedings are pending. A second advantage to having a Separation Agreement is that there are various problems arising out of marriages for which there are no remedies under Maryland divorce laws. For example, many parties have acquired significant credit card debt during their marriage that needs to be addressed during the divorce. In Maryland, a Judge lacks the authority to divide or apportion credit card debt, so the debt is the responsibility of the cardholder, regardless of how it was accumulated. Virtually all aspects of a divorce, including the apportionment of credit card debt, can be addressed in a Separation Agreement. A third advantage to having a Separation Agreement has to do with the timing of the divorce. In October 2015, a new law took effect which provided an additional ground for divorce called “mutual consent”. If parties have a signed Separation Agreement and no minor children, they can file for divorce immediately and they do not need to be physically separated from one another for any period of time. This was a major change in the law, as many parties who had a signed Separation Agreement still had to wait a year to file for divorce.
Separation Agreements are generally preferred by the Courts and parties as a peaceful means of terminating a marriage and the conflict resulting from it. These agreements are not a bar to obtaining a divorce, and issues relating to children (custody and child support) are always modifiable by the Court if it is in the child’s best interests.