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5 Things You Need To Know About Separation

Separation and Divorce

In Maryland, the first legal step in the divorce process is determining what ground for divorce applies to a given case.  (A “ground” for divorce is a “legally acceptable reason” for the divorce.)  “Fault” grounds for divorce include:

  • Adultery
  • Cruelty of treatment
  • Desertion
  • Excessively vicious conduct
  • Imprisonment for a crime as well as
  • Insanity.

In a “no fault” divorce, the parties do not point to any particular fault ground.  Instead, they proceed in the divorce after having met certain conditions.  For couples without minor children in common, they may obtain a no fault divorce by mutual consent without a separation period if they meet certain other requirements.

Separation is Not Always Required: No Fault Divorce by Mutual Consent

In cases where the parties do not share minor children in common, if both parties agree to the divorce, the court may grant a divorce on the ground of mutual consent.  Parties must execute a written settlement agreement.  This document must address all issues relating to the distribution of assets, and address any issues relating to alimony.  Both parties must appear before the court for the hearing.  Finally, courts only grant a no fault divorce by mutual consent where neither party files a pleading asking to set aside the settlement agreement prior to the divorce hearing.  If all the requirements are met, the court can grant a no fault divorce by mutual consent without a waiting period.

Separation is Sometimes Required: Traditional No Fault Divorce

In cases where the couple shares minor children in common, or in cases where one party does not consent to the divorce, a couple must be separated for a period of 12 months or more before courts will grant a divorce.  Some states, like Virginia, allow “separation under the same roof.”  This means a party may be considered legally separated even as they are living in the same house.  In Maryland, however, that is not the case.  Couples must reside at different residences.  They may not live together or have sexual relations with each other.  Doing so resets the separation date back to day one.

Separation Agreements Can be Useful

When a couple separates prior to a divorce, they often find they are facing the same issues a divorcing couple faces.  How much child support is appropriate?  Who will make decisions about where the child goes to school?  What does a parenting agreement look like?
Couples can enter into a separation agreement at the time they move into different houses, or at any time during the separation period.  This agreement is a legally binding contract that addresses issues a couple faces, including:

  • The division of assets
  • The division of debts
  • Parenting time
  • Legal custody of the children
  • Physical custody of the children
  • Child support
  • Health insurance for all members of the family as well as
  • Alimony.

An attorney experienced in family law can help an individual by drafting a separation agreement that meets the specific needs of the family.

Separation Agreements Offer Peace of Mind

Even in cases where the couple agrees to the divorce, it is a good idea to have a separation agreement in place.  Because this agreement is a legally binding contract, which clearly delineates the responsibilities of each party, it removes ambiguity and uncertainty about the terms of the separation.  Often when couples first separate, they are focused on dealing with the immediate crisis at hand.  An attorney familiar with family law and divorce law is better able to anticipate potential problems and identify common areas of concern, and address those in a separation agreement.
As with any contract, the terms are negotiable.  Using a “one size fits all” separation agreement can lead to problems.  Each family is different.  Consequently, each family inevitably has different needs, wants, and desires.  By creating a separation agreement tailored to the needs of the individual family, the parties can be assured their specific needs are addressed in a way that works for them.

Separation Agreements: Subject to Modification and Revocation

A separation agreement is subject to modification.  Of course, as with any contract, if the parties determine changing the terms of the agreement is in the parties’ best interests, they can modify the terms.  They may decide to change a child custody schedule to better suit their child’s needs for example.
Separation agreements are also subject to revocation.  Some couples make the decision, after a period of time, to reunite.  When that happens, a second agreement, in writing, can revoke the terms of the separation.  When a couple decides to live together again, courts may view this as evidence of an intent to revoke a settlement agreement.   However, this does not automatically revoke the agreement.

Considering Divorce?

If you are considering divorce or separation, contact the firm of Fait & DiLima.  Our attorneys focus exclusively on family law and divorce cases.  We have over 50 years of combined family and divorce law experience.  We recognize divorce is a difficult time, and it can feel overwhelming.  Couples face many decisions when uncoupling.  We help you make certain the decisions you make about how to address your separation are both legal and in the best interests of your family.  Contact us today to schedule a consultation.  We look forward to discussing your unique situation with you.  Working together, we can find an approach that fits your needs and your family.

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