Marital Separation Agreements (26 type of issues Separation Agreements can address)
Separation Agreements
This website provides a basic understanding of the laws regarding divorce, and how those laws play out in the Maryland Court System. However, it is always possible that the issues incident to your divorce can be resolved outside of the legal system.
It is preferable and less costly if the spouses resolve their
differences by way of an agreement; commonly called a Separation Agreement. If
you and your spouse are able to resolve the issues relating to their marriage
(either on your own or through the assistance of your attorneys) then the terms
of that resolution can be written into a Separation Agreement. An attorney
cannot represent both parties in preparing a Separation Agreement and it is
wise for each spouse to retain his/her own attorney to represent and negotiate
the various terms within the agreement. A Separation Agreement is treated as a
contract. If someone fails to abide by the terms of the contract, then the
Courts can hold that person accountable.
In order to aid the spouses in coming to an amicable resolution
and entering into a Separation Agreement, an impartial mediator is often hired
or the parties may enter into a collaborative process where trained attorneys
attempt to resolve their client’s differences outside the court arena. Both of
these avenues have become popular and less costly than a court resolve provided
that the spouses are willing to be open and fair with one another. In the case
of mediation (where often an attorney is not present aiding its client) it is
important that the client enter into this process with an understanding of his
or hers rights and responsibilities under the law. For some clients this face
to face format may not be appropriate as it initiates some of the personalities
and issues which caused the demise of the marriage. An experienced attorney
will be able to advise clients as to the appropriateness of these alternative
formats. Under no circumstances should a spouse finalize an agreement during
mediation or collaboration without a thorough review by an attorney of the
contemplated Agreement.
Sometimes clients will come to our office with an idea of a
settlement and will ask that we prepare a Separation Agreement on their behalf.
We will listen carefully to the terms of an agreement that a client proposes,
and ask them questions about how they decided upon those terms. If we have
concerns about the agreement and whether or not it protects the client’s best
interest, we will express these concerns. We encourage spouses and litigants to
resolve their differences outside the courtroom, but only after they are
informed of the law. After a client knows his/her rights and liabilities, we
will prepare any Separation Agreement that he/she requests.
What types of issues can a Separation Agreement address?
The following are samples of categories which would ordinarily
be contained in a Separation Agreement:
- Custody of the
child or children
- Child support
- Alimony,
including special provisions which would terminate or limit the alimony
- Life insurance
- College
obligations
- Payment of
outstanding debts
- Payment on the
mortgage
- Payment of the
car(s) and insurance
- Medical
insurance and uncovered medical expenses
- Dependency
deductions on federal and state tax returns
- Counsel fees
- Use and
possession of the family home and furniture
- The filing of
single or joint tax returns
- Revocation of
existing wills
- Waiver of the
statutory spousal share in event of death
- Social security
issues
- The division of
retirement, 401k, IRA and other deferred compensation accounts
- The freedom to
date and have relationships and the ability of each spouse to live
separate and apart from one another without interference or harassment
- Access schedule
for the child or children
- The lump sum
payment as a result of the equitable division of the property in each
spouse’s name
- The credit for
existing property that a spouse had or is traceable to assets prior to the
marriage, inheritance or gifts from a third party
- The use of one’s
maiden name
- The cancellation
of joint credit cards
- Guardianship and
child support issues of any child who would not otherwise be capable of
being independent or legally emancipated
- Any special
provision to protect the child during any access schedule, such as not
being present with any paramour of the spouse or being in any unsafe
environment
- The tax
implications of the transferring of assets, alimony and child support
If I enter into a Separation Agreement with my spouse, does that
mean we are divorced?
- No— entering
into a Separation Agreement does not mean you and your spouse are
divorced. In order to get divorced, an attorney must file a pleading after
a period of one year separation and appear before a judge or a Master for
Domestic Relations. At this hearing, a witness will attest to the one year
separation If the Judge or Master grants the divorce, a Judgment of
Absolute Divorce will be entered. In some cases, the Court will consider
whether the child support contained in the Separation Agreement is
consistent with the then child support guidelines.
If my spouse and I enter into a Separation Agreement, will that
Agreement be part of our Judgment of Absolute Divorce?
- Yes—if you and
your spouse enter into a Separation Agreement, that Agreement can become
part of your Judgment of Absolute Divorce. Your attorney will ask the
Judge to do this at your actual divorce hearing. At the hearing, your
attorney will tell the Judge that you and your spouse have entered into a
Separation Agreement, describe the terms of the separation agreement, and
ask that the Separation Agreement be incorporated into the Judgment of
Absolute Divorce. When this happens, it will become the terms upon which
the parties are required to abide and in most cases its breach can be
brought before the Court by way of a Petition for Contempt
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