When a couple decides to separate prior to divorce, they may decide to enter into a marital settlement agreement, also known as a separation agreement. A separation agreement is a legally binding contract between spouses that clearly spells out each spouse’s rights and obligations concerning alimony, custody, child support, and property division. It can also address issues such as business interests, debts/expenses and income taxes.
Separation Agreements
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A separation agreement is helpful in that it:
- reduces the length of the court process;
- allows for the parties to make decisions that are best for themselves and their family instead of allowing a judge make the decisions for them;
- reduces the costs associated with a lengthy contentious divorce.
Upon divorce, the terms of your separation agreement are incorporated into your Judgment of Absolute Divorce, which then becomes enforceable by the court in the event of a breach.
When a couple decides to separate prior to divorce, they may decide to enter into a marital settlement agreement, also known as a separation agreement. A separation agreement is a legally binding contract between spouses that clearly spells out each spouse’s rights and obligations concerning alimony, custody, child support, and property division. It can also address issues such as business interests, debts/expenses and income taxes.
A separation agreement is helpful in that it:
- reduces the length of the court process;
- allows for the parties to make decisions that are best for themselves and their family instead of allowing a judge make the decisions for them;
- reduces the costs associated with a lengthy contentious divorce.
Upon divorce, the terms of your separation agreement are incorporated into your Judgment of Absolute Divorce, which then becomes enforceable by the court in the event of a breach.
Jacobson Family Law can also advise you during more traditional negotiations of family law disputes such as:
- Advising you as you go through mediation with an outside mediator;
- Reviewing a Separation Agreement that has been prepared by a mediator or other attorney; or
- Working on your behalf to negotiate a settlement
In negotiating settlements, Jacobson Family Law focuses on the big picture and well-being of your family instead of “winning.” These types of negotiations can take place through meetings or by exchanging written settlement proposals.
If you have been asked to sign a separation agreement by your spouse, an experienced attorney at Jacobson Family Law can assist you by reviewing the separation agreement, explaining the legal ramifications and negotiating the issues that are of the most importance to you. It is important that you not sign any document before first seeking the professional legal advice of an experienced divorce attorney.
Once a separation agreement is signed, except in rare circumstances, the courts cannot alter the conditions of your separation agreement unless it is related to custody or child support.
If you have been asked to sign a separation agreement by your spouse, an experienced attorney at Jacobson Family Law can assist you by reviewing the separation agreement, explaining the legal ramifications and negotiating the issues that are of the most importance to you. It is important that you not sign any document before first seeking the professional legal advice of an experienced divorce attorney.
Once a separation agreement is signed, except in rare circumstances, the courts cannot alter the conditions of your separation agreement unless it is related to custody or child support.
Click here to Schedule an appointment today with an attorney at Jacobson Family Law to discuss your separation agreement matter today.
FAQs
What is a Marital Separation Agreement?
A Marital Separation Agreement, or property settlement agreement, is a binding contract between a married couple that resolves all issues arising from their marital relationship including, custody, child support, alimony/spousal support, and division of marital property. A marital separation agreement may be signed before or after you have filed for divorce – even while you and your spouse are still living together.
Why is a Marital Separation Agreement important?
A Marital Separation Agreement spells out your rights and obligations as well as those of your spouse. Additionally, a Marital Separation Agreement can be used as evidence to the court as to your date of separation or your mutual consent to end the marriage. An Marital Separation Agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written detailed agreement, rather than rely on verbal understandings.
Do I have to file a Marital Separation Agreement with the Court?
If you have a Marital Separation Agreement, you will have to file a copy with the court in order to obtain an absolute divorce. You will include a copy with the complaint and ask that the court merge, but not incorporate, the terms of the Agreement into the final Judgment of Absolute Divorce. Once the Marital Separation Agreement is incorporated into the Judgment of Absolute Divorce, it becomes a court order and is enforceable by the court’s contempt powers. If the separation agreement is not incorporated into the Judgment of Absolute Divorce, and your spouse violates the terms of the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.
What is the difference between a contested or uncontested divorce?
A contested divorce is where the parties are not in agreement with at least one issue such as: the divorce itself, the property division, child custody, alimony, etc. and where the parties allow the court to decide for them. Uncontested divorces fall into two categories – (1) Consent Divorces – the parties agree on all major issues; and (2) Default causes – where one party fails to appear in court to contest the divorce or any issue in it, either because he or she do not to oppose it, or because he or she cannot be located. By entering into a Marital Separation Agreement you make your divorce an uncontested divorce.
How long are the parties bound by a Marital Separation Agreement?
A separation agreement is a legal contract that will bind you through many years to come and will determine your rights, obligations, and responsibilities from your marriage. You and your spouse can amend the agreement if you both consent to the changes. In some specific circumstances, your separation agreement can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children including custody, custodial access and child support.
Do the courts review the fairness of a Marital Separation Agreement?
If the courts are convinced that both spouses entered into the Marital Separation Agreement without fraud or coercion, the court do not typically review the terms of the agreement to determine its fairness. They do, however, review the terms of the agreement that affect any minor children to confirm that the terms of the agreement are in their best interest.
How do the courts divide assets and debts in an "equitable distribution" state?
In Maryland, which is an “equitable distribution state”, the court will divide all marital property in an equitable fashion unless otherwise agreed upon by the divorcing spouses.
What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” Therefore, a fair division of marital property does not necessarily mean 50/50.
When required to make the final equitable division of marital property, the court must consider the following factors:
- The contribution, monetary and non-monetary, of each party to the well-being of the family.
- The value of all property interests of each party.
- The economic circumstances of each party at the time the award is to be made.
- The circumstances that contributed to the estrangement of the parties.
- The duration of the marriage.
- The age of each party.
- The physical and mental condition of each party.
- How and when specific marital property was acquired.
- Any award of alimony or award of use and possession of personal or real property made by the court.
- Any other factor the court considers necessary or appropriate to arrive at equitable distribution.
What is the difference between "marital property" and "non-marital property"?
Marital property is defined as any property acquired by either spouse during the term of the marriage, regardless of how that property is titled. Some property, such as gifts from third parties, inheritance, and property specifically addressed in an agreement, are excluded from a marital property division. It is possible that a piece of property is partially marital and non-marital.
What should be included in a Marital Separation Agreement?
Every couple’s situation is different; however, there are some standard provisions that need to be addressed within a Marital Separation Agreement. Those include:
- Clear alimony provisions
- Custody issues/Child Support
- Property Division
- Debts
- Allocation of Retirement Assets
- Procedure for Post Divorce Litigation
Does a separation agreement have to be in writing?
Yes, your Marital Separation Agreement should be in writing in order for it to be binding. You will have to submit your written Marital Separation Agreement to the court in order to obtain your Absolute Divorce in Maryland.
What happens if one spouse breaches the Marital Separation Agreement?
Once the Marital Separation Agreement is incorporated into a Judgment of Absolute Divorce, it becomes a court order and is enforceable by the court’s contempt powers. Therefore, if one spouse breaches the Marital Separation Agreement, you can file a contempt action to enforce the terms or attend mediation to attempt to resolve the issue.
How do I get started with preparing a Marital Separation Agreement?
Schedule an appointment with Jacobson Family Law to learn how a Marital Separation Agreement may benefit you.
Can we change the Marital Separation Agreement?
Yes, you and your spouse can modify the terms of your Marital Separation Agreement by entering into Amendment to your Marital Separation Agreement.
Learn More About What We Can Do For You.
Jacobson Family Law serves clients across Annapolis, Columbia, Ellicott City, Towson, Owings Mills, Baltimore, and Frederick. To speak to an attorney, call 443-917-1517 or schedule an appointment.