What is Legal Separation in Maryland?
In Maryland, legal separation does not exist. The term is often used colloquially to refer to a period prior to divorce when spouses are city or geographically separated but are still legally married. However, as far as the law is concerned, there is no such thing as a legal separation in Maryland — only divorced couples and those who are still lawfully married.
The only "legal" separation that occurs is when you and your spouse choose to live at different residences, and one of you files a complaint for limited divorce. This at least entitles either party to ask the court for an order of exclusive use of the marital home, child custody orders, or an order for spousal support. However, this does not mean that you will get these things. You will have to ask the court for them and demonstrate to a judge that it is reasonable that you receive an award of these things.
In some very limited states, like Virginia, there is actually a legal procedure called a "Decree of Separate Maintenance." In a Decree of Separate Maintenance, the judge can issue a court order that will regulate all aspects of your lives, like child custody, child support, spousal support, and property. Maryland does not have any kind of procedure equivalent to this.
Effectively speaking, however, living apart reinforces the fact that you plan to divorce. Perhaps it helps to think of the time between living apart and divorce as simply the "pre-divorce" period, not as a "legal separation."
There are many reasons why couples may choose to live separately but still married. One of the biggest reasons is for financial or economic ones. In some cases , one spouse does not want a divorce until all of the assets are sold and divided up. In other cases, one spouse may not be able to afford maintaining two homes or paying for a divorce.
Some people may wish to maintain a separation for religious reasons. For some, they believe divorce is against their faith. Others believe that legal separation is morally preferable to divorce.
There are also other reasons: If you have children, living apart rather than divorced may be more convenient so that your kids are not forced to move to a different school district. Living apart may allow you to continue to receive health insurance from your spouse’s employer.
Whatever the reason, it is important to note that legally separating while living apart does not mean that your divorce will be in any way easier. It does not strengthen or weaken any of your legal rights concerning custody, alimony, or property division. Once you are divorced, the court will look at your situation at that moment, not at the past or at the decree for separate maintenance.
There is no special form needed for a limited divorce complaint. However, you need to be sure to have all the necessary documentation in order for the court to consider your case. A good attorney can tell you exactly what documentation you need.
Because the process of separating before divorce is much better defined in other states, the information available may be somewhat confusing. For a limited divorce in Maryland, always consult with an attorney who has helped other clients during this step of the divorce process.
Who Can File for Legal Separation?
Before filing for a legal separation in Maryland, you must meet certain eligibility criteria. The most obvious requirement for filing a formal separation is that your marriage must be legally recognized in the state of Maryland. In Maryland, all legal marriages must be performed in the presence of an officiant and at least two witnesses; a formal exchange of consent is required by both parties. A common law marriage is not legally recognized in Maryland, even if you have lived together as spouses. For this reason, same-sex couples who have been together for a long time may need to meet additional eligibility requirements when preparing for divorce.
In addition to meeting general eligibility requirements, you and your spouse must meet residency requirements. To file for a legal separation in Maryland, one of you must be a resident of the state for at least one year immediately before filing. While it is possible to file for legal separation within six months of moving to the state due to military service, most people will not be eligible due to military service. In addition to the one-year residency requirement, you or your spouse must have resided for at least three months in the county where you are filing for legal separation. (Note: This residency requirement does not apply in Anne Arundel County.)
Filing a Legal Separation
Filing for a legal separation in Maryland is a structured process, akin to filing for divorce. It requires the completion and submission of multiple documents, and local courts may also impose specific requirements related to filing.
The first step in the legal separation process is preparation of the necessary forms. While Maryland does not have an official "legal separation" document, individuals can complete and file the same documents as required for divorce — including the Complaint for Absolute Divorce — to pursue legal separation.
The following forms are required when filing for legal separation in Maryland: These documents can be obtained through the website of the Maryland Judiciary.
Once you have completed the necessary forms, you must file them with the clerk of your local Circuit Court. You have the option to file electronically or in person; in either case, however, an initial filing fee may be due.
Once upon a time, you would need to have a judge grant you a separate court date to get the ball rolling on your legal separation; now, however, many steps in this process are carried out online. One important exception, however, is the court hearing stream; even in this element of legal separation, modern technology is there to assist you.
When your separation agreement is completed, you need a judge to approve it. The judge will typically take time to review your agreement, and if they see any issues (for example, if your agreement releases your spouse from responsibility for a debt that your spouse actually incurred during the marriage), they will ask you to make the necessary changes and re-submit the agreement.
The court might not even require a hearing for your legal separation; sometimes, they approve separation agreements without ever speaking with either spouse. However, in most cases, you will abide by the traditional hearing process.
With a legal separation in Maryland, you do not need to wait a full year before obtaining approval of this agreement.
Writing a Separation Agreement
Once you decide to file for legal separation, you will have to create separation agreement with your spouse. In legal separation, spousal rights and obligations are essentially the same as in a divorce. After the separation agreement is executed, both parties will combine it with the appropriate forms to file for legal separation in Maryland.
A separation agreement is crucial for legal separation because it helps couples divide their assets and liabilities as well as addressing any issues they may have concerning child custody. A separation agreement is similar to divorce decree, only that it is less permanent. The one thing separation does not resolve is marital status. Couples do not have to wait until their divorce is finalized to start dividing assets and liabilities if they already entered into a separation agreement.
There are a number of things you must include in a separation agreement. You must cover all the areas that you would cover in a divorce, including:
If you did decide to enter into a separation agreement with your spouse, you will need to have a basic knowledge of contract law to properly draft one, although it is not a requirement. Most are familiar with the basics of contract law because we enter into contractual agreements on a daily basis. If you do not have this, however, it isn’t anything to stress about too much.
Regardless of whether or not you have a basic understanding of contract law, it is still a good idea to hire a lawyer to help guide you through the drafting process. This is particularly important in high-value asset divorce cases.
Finding Legal Assistance
While it is possible to file for legal separation without an attorney in Maryland, seeking legal advice is critical for those looking to navigate the process successfully. A divorce mediator or attorney can advise on the advantages of obtaining a legal separation over filing for divorce, and vice versa. Legal representation can also help avoid mistakes that could impact alimony or property division, and helps individuals better understand their rights and responsibilities throughout the separation process . A number of Maryland legal resources are available to individuals who need assistance with the legal separation process. The Maryland Judiciary’s Family Law Self-Help Center provides free legal assistance. Additionally, the Judiciary’s Family Law Help Centers in various Maryland counties give out-of-state residents access to legal professionals.
Common Concerns Related to Legal Separation
When a couple decides to separate, a multitude of issues can arise. Child custody and visitation is always at the forefront. Further, child support and the division of marital property need to be addressed. The most controversial issue during a legal separation tends to be spousal support. Regardless of the length of the marriage or the ages of the children, one spouse is generally awarded exclusive use and possession of the marital home. Many times, the parties will agree on the weekly visitation schedule for the children. Each parent should agree to alternate holidays. It is important to co-parent as amicably as possible during this time period. Child support is generally paid from the date of separation until the date of divorce. This time period can exceed 18 months or longer. In addition, if you intend to request alimony, it is important that you file in a timely fashion. The longer you delay, the less likely you are entitled to an award. If there is significant marital property to divide, you may want to consider a limited or complete round of oral depositions. If the parties cannot determine what they own, what is owed and the approximate value of the assets, litigation may be necessary.
Taking Steps after Legal Separation
You may be wondering what will happen after you get a legal separation. When it comes to legal separations in Maryland, an individual should expect the process to be lengthy. A legal separation is not a legal divorce. Even after you’ve completed this step, you will not have legally ended your marriage.
During this period, your circumstances may change. You might decide that you want to reconcile with your spouse. If this is successful, you can then amend some of the agreements that you put in place during your separation, or you could end the separation altogether and get a divorce.
After a legal separation , you could eventually choose to become divorced. Sometimes the separation is a first step that leads to divorce. You may also wish to suspend the legal separation if your spouse is violating the terms of the separation. The main thing to keep in mind is that a separation does not have to be forever. For this reason, it’s important to keep seeking legal counsel to determine whether you should proceed with a divorce or extend the terms of your separation agreement.
One way or another, something must eventually change. A legal separation truly is only a way for a couple to determine whether they do want to proceed toward divorce in a way that keeps them legally married for a temporary phase of their lives.