In situations where a married couple sees little hope of reconciliation, they may privately enter into an agreement, either verbal or written, to live apart. These agreements can be called: a marital settlement agreement, separation agreement, or property settlement agreement. If the couple seeks a divorce on the grounds of voluntary separation, a separation agreement may be used as evidence to obtain the divorce.

Read the law: Md Code, Family Law Title 8

What should we include in our agreement?

A separation agreement should provide for the following:

• the care, custody and support of any children;
• the amount of financial support one spouse will provide to the other;
• arrangements for continuation of health insurance benefits; and;
• the division of property while the spouses are living apart, including what will happen to the property upon divorce.

A separation agreement does not end the couple’s marriage, nor does it make either individual free to remarry. Spouses are also not free to have sexual relations with other people, which would be considered adultery.

The Maryland Courts provide a court form called Marital Settlement Agreement (CC-DR-116) that may fit your needs. The court form covers many of the topics to include. The court form may not be right for all situations or circumstances. For example, couples with many assets or defined benefit pension plans may consider drafting their own document.
 

Can a separation agreement be revoked?

A separation agreement can be revoked by another written agreement, or by the parties living together again as a married couple. Living together does not automatically revoke the separation agreement.  Rather, it is only evidence of an intention to revoke the agreement.

How can I enforce a separation agreement?

If one party violates a separation agreement, the other may bring a lawsuit for violation of the agreement. The separation agreement constitutes a contract between the spouses, and if either spouse violates the agreement, the other spouse and bring a suit alleging a breach of contract. 

To ensure enforceability in the family courts, the parties should have the separation agreement incorporated, but not merged, into the divorce decree. This allows a party to seek relief in the existing divorce case without having to begin a new lawsuit.

While the court will generally honor the terms as set forth in the separation agreement, the court may modify provisions that pertain to the care, custody, education, maintenance, and support of any children in order to protect their best interests.

Do we need to obtain legal advice?

When a couple decides to separate, it is time to consult a lawyer. This is particularly true when the parties own property and/or have children together. Even when no divorce is contemplated, a thorough understanding of their legal rights and responsibilities can be equally important.

How do we negotiate our marital settlement agreement?

Although parties can draw up a separation agreement without the assistance of lawyers, it is often risky to do so. Without knowledge of their legal rights, the parties may draft an agreement that can create problems in the future or fail to address all of the issues between them.

If you have any question about your rights, you should consult your own attorney to determine whether your agreement is reasonable and fair. Do not rely on the advice of your spouse’s attorney. You can find free or low-cost legal resources available on the People’s Law Library website. 

While a negotiated settlement can avoid a contested divorce hearing, the court will still review the agreement prior to the granting of a divorce decree, and it may become part of the judgment. While a separation (settlement) agreement greatly simplifies the court’s involvement, it does not eliminate it.

When only one party is represented by counsel, the party who is not represented by counsel should seek the advice of an attorney prior to finalizing the agreement. 

Divorce Series: Asking for Spousal Support or Alimony from the Maryland Courts