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Existing Agreements
Marital settlement or separation agreements are likely to have a number
of different provisions. Some may deal with property, others with alimony or
issues in raising the children. If you have an agreement, whether or not to
proceed with representing yourself depends on how the agreement was drafted.
Review the questions below first. Also see the special note on
alimony
agreements. In short -
if you and your spouse have signed agreements that have been reviewed recently
and you each had an attorney representing you, you can move ahead representing
yourself in the divorce. For some additional information on existing
agreements that can be formed before of during the
Marriage,
visit the Marriage section of the
Peoples Law Library.
If the agreement is satisfactory to you, it can be submitted as part of
the evidence into the record (official court files) of your divorce and the
court can incorporate it into your divorce decree. Maryland Rule
9-210(b). The
forms that you get from the court will indicate when you should submit it.
Was the agreement drafted recently?
If
your agreement is several years old, you may want to speak with your attorney
about any need for a supplemental agreement. If your older agreement includes a
provision for property or alimony, take the alimony and property quizzes on
this web site for an overview of the issues that may have arisen since your
agreement was signed. If the agreement mentions alimony, also see the
Alimony
Agreement Note.
Did you have an attorney review (or draft) the agreement? Sometimes both parties use the same attorney to draft an agreement. If you are considering representing yourself in a divorce and your spouse hired the attorney, to avoid any conflict of interest you should seek another attorney for a review of the agreement before going ahead with the divorce. Can my spouse's attorney offer me any help?
Did the attorney who drafted it (or reviewed it) know that you were considering handling the divorce yourself? If not, call and ask him/her if there is anything you should consider in going ahead in representing yourself in the divorce. Do you believe that you were under any duress or unfair pressure when you signed the agreement? If you take the quizzes and believe that you want to revisit some of the provisions in the agreement, you will generally find it difficult to do so. The law generally does not allow modification of an agreement setting or waiving alimony. (MD Ann. Code §§ 11-101 and 8-103) For example see the Alimony Note: for certain phrases that will affect whether you can change your agreement. However, an attorney can help decide if a history of domestic violence or some similar situation might allow you to seek the change you wish, if the agreement itself does not allow it. For more information, try
Finding Family Law Help
or the Marital
Agreements page, for more information on pre nuptial agreements or separation agreements. An agreement on alimony can be complex document. It should consider all of the appropriate laws including the Maryland domestic law (a summary of the Maryland alimony provisions appears on this website) and the federal and state tax laws. The following is not a substitute for hiring an attorney. Issues to look for
in your review are: An important question is whether the current agreement can be modified (changed). If the agreement does not mention whether or not it is modifiable, the court may have the power to change the terms of the agreement. If the agreement cannot be changed, look for a sentence similar to the following: “In accordance with section 8-103 of the Family Law Article of the Annotated Code of Maryland, the parties agree that the provisions of this paragraph with respect to alimony, spousal support, and/or maintenance are not and shall not be subject to any court modification.” There are ways in which your agreement may allow for certain types of changes. For example:
A second important question is whether both of you waived (or agreed to not seek) alimony. Also look at whether the agreement allows for reductions in alimony payments over time. An important consideration is how the agreement addresses who pays taxes on the alimony payments. The Internal Revenue Service and Maryland have rules on how this income is treated for tax purposes. Your agreement cannot change the classification of income under these rules. However, an agreement can help to work out a fair solution that considers the tax consequences. For example, a lower alimony payment may be agreed upon if it is structured in a way that reduces the tax to the recipient. This is not an area where general information on a website can give you anything more than an idea of what is possible. It cannot tell you what might be best for you. This is not an area for self-representation. However, we can give you a sense of the possibilities. Generally under the Internal Revenue Code, the alimony can be a tax deduction for the payor when the person receiving alimony also pays income taxes on the alimony payment. Under certain circumstances, both parties may agree that the payor will not claim the alimony as a tax deduction and the recipient’s alimony income is not taxed. You can find more information on the federal tax provisions at the user-friendly IRS website. Also look for Tax Topic 452 or Publication 504 on the IRS website. |
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| Source: Maryland State Law Library (MSLL) |
Last legal review 01/17/08 (PLL/M.A.J.) |
