A couple with little hope of reconciliation may privately enter into an oral or written agreement to live apart. This is typically called a marital settlement agreement, separation agreement, or property settlement agreement. When the ground for divorce is voluntary separation, a separation agreement may be used as evidence to obtain the divorce. Read the law: Md Code, Family Law Title 8
A separation agreement should provide for the following:
- The care, custody and support of the children;
- The amount of support one spouse will contribute to the other;
- Provisions for continuation of health insurance benefits; and;
- The division of property while the husband and wife are living apart, including what will happen to the property upon divorce.
Such a separation agreement does not terminate the contract of marriage nor does it free the parties to remarry. In addition, the parties are not free to have sexual relations with another person, as this constitutes adultery.
Revoking a Settlement Agreement
The separation agreement can be revoked by a second agreement in writing or simply by the parties living together again as husband and wife. Living together does not automatically revoke the agreement; it is only evidence of an intention to revoke it.
Enforcing a Settlement Agreement
If one party violates a settlement agreement, the other may bring a lawsuit for violation of the agreement, alleging a breach of contract. To ensure enforceability in the family courts, however, the parties should have the separation agreement incorporated, but not merged, into the divorce decree.
While the court will generally honor the parties' agreements as set forth in the separation agreement, the court may modify provisions affecting the care, custody, education, maintenance and support of the children in order to protect their best interests.
Obtaining 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.
Negotiating Your 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 draw up 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 by clicking here.
A negotiated settlement can preclude a contested divorce hearing, but the agreement will still be examined by the court prior to the granting of a divorce decree and 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. There are instances where provisions of an agreement or the entire agreement might be voidable or unenforceable.