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Separation Agreements

Common Questions on Separation Agreements

Frequently Asked Questions About Separation Agreements in Maryland

To most people, "separation" is a somewhat ambiguous term that only serves to denote the period before a divorce is finalized. However, entering into a legal separation agreement with your soon-to-be ex-spouse has a multitude of benefits that make separation agreements an attractive proposition for many people. This FAQ contains everything you need to know about separation agreements in Maryland and beyond, so you know whether a separation agreement is right for your unique circumstances.

If you decide to enter a separation agreement with your prospective ex, you should enlist the help of a lawyer. At Fait & DiLima, LLP, our separation attorneys possess all the necessary knowledge to help you draft a comprehensive separation agreement. For a free consultation, fill out our online contact form, or give us a call at (301) 888-6384.

What Is a Separation Agreement?

A separation agreement is a legally binding contract that allows spouses considering divorce to live separate lives while still retaining some of the benefits of marriage. Separation agreements can include legally enforceable provisions for measures such as child custody, financial support, and the division of property, while allowing couples to remain married in the eyes of the law.

How Do I Know if a Separation Agreement Is Right for Me?

A separation agreement may be a good arrangement for you and your prospective ex-spouse if:

  • You aren't entirely convinced that divorce is the right option. If you believe your marriage may be salvageable, separation can allow you and your partner time to be alone and address personal issues while still remaining married. Having your own space to think about your relationship can be invaluable, and you can still come together with your partner as needed to care for children (if you share any), participate in counseling, etc.
  • You want to trial living on your own. For many couples, moving out of a shared living space is the most challenging part of the divorce process. This is particularly true in cases where a couple shares children who will need to split time between the parents if a divorce is finalized. A separation agreement can give you time to ease into living separately, and allow children to adjust to a new living or custody arrangement slowly.
  • You want to settle the divorce out of court but know doing so will take a while. The majority of divorce cases are settled out of court because settling out of court typically takes less time and has less severe consequences than settling in court. However, if you and your partner share valuable assets, children, or disagree on how the divorce should occur, finalizing the divorce will probably take a significant amount of time. A separation agreement allows you and your prospective ex to live separately and still retain the legal benefits of being married while finalizing the divorce.

What Are the Legal Benefits of a Separation Agreement?

Separation agreements have several legal benefits that make them enticing:

  • Spouses can keep their benefits. If you or your ex has a particularly good health care or benefits plan that you don't want to cut each other off from, separating allows both parties to continue using those benefits.
  • A separation agreement can make finalizing divorce easier. Many courts will order couples to undergo mediation before they finalize the divorce. If a court knows you're in a separation agreement with your ex, it shows them that you're willing to collaborate with your ex during the divorce process. Think of it as putting your legal best foot forward—chances are, the rest of the divorce process will flow more smoothly.
  • You and your ex can still file income taxes as a married couple. For couples that benefit heavily from combined taxes, this benefit alone may warrant a separation agreement.
  • You gain a tax advantage on any spousal support you have to pay. If you're legally separated, you can deduct spousal support payments from your taxes.

What Should I Include in My Separation Agreement?

If you're entering into a separation agreement with your partner, you'll want to make sure the contract covers the following areas:

  • Child custody, care, and support. Laying out the provisions for childcare, custody, and support during the separation agreement can save you a significant amount of time and stress if you choose to finalize the divorce. Work with your partner to make sure you arrive at a child custody and support arrangement you both feel comfortable with.
  • Spousal support. If you or your partner will need support while separated (and post-divorce), make sure to include provisions for spousal support in your separation agreement.
  • Asset division. Now's a good time to consider hiring a CPA who specializes in asset appraisal and valuation. If you and your spouse do decide to divorce, you'll have to undergo an equitable distribution process that will divide your assets anyway, so dealing with it during the separation can save time and energy. You'll want to consider factors such as whether one spouse will retain ownership of the marital home during the separation and post-divorce, how you'll divide equally shared assets acquired during your marriage, and which assets both parties consider essential.
  • Benefits continuance. If you and your partner want to continue sharing benefits, you should include that in your separation agreement contract. In Maryland, separation agreements are contracts, which means you should also include provisions for tax advantages as well.
  • Terms for sexual relations. Technically, engaging in sexual relations with a person other than your spouse while in a separation agreement constitutes adultery. If you and your spouse have no intention of reconciling or want to pursue sexual relations with other parties while separated, you need to make a provision in the contract stating that intent.

You and your partner should work with an attorney to make sure your separation agreement is comprehensive and covers any and all elements that are important to both parties. At Fait & DiLima, LLP, our separation attorneys (such as Marjorie DiLima, who's certified in collaborative law and mediation) can help you draft a mutually beneficial separation agreement with your partner.

Are Separation Agreements Legally Binding?

Some states consider separation agreements their own legal entity and require couples to engage in one before they can divorce, while other states merely consider separation agreements legally binding contracts. Either way, the separation agreement is legally enforceable, but through different means.

In Maryland, separation agreements are considered binding contracts. If you or your spouse violate the terms of the agreement, the spouse not in violation can file a lawsuit against the violator for a breach of contract. If you want to make sure your separation agreement is enforceable in family courts (and doesn't require a breach of contract suit), you should work with an attorney to include the separation agreement in your divorce judgment.

Can You Void or Revoke a Separation Agreement?

If two parties who are engaged in a separation agreement decide they'd like to reconcile, or want to revoke the separation agreement for a different reason, the separation agreement can be revoked if both parties sign a second legally binding contract agreeing to void the agreement. Some people mistakenly assume that moving back into a shared house automatically revokes a separation agreement, which isn't true. However, moving back into a shared living space does serve as evidence that you and your partner intend to revoke a separation agreement, and could technically be used as such in a court of law.

If you want to draft, enforce, or revoke a separation agreement, our experienced separation attorneys at Fait & DiLima, LLP can help you navigate the legal process.


Our team of experienced attorneys are available to discuss and help with your legal needs. Contact us online or call 301-888-6384 to arrange a consultation with one of our Rockville or Frederick divorce lawyers.

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