Voluntary Separation in Maryland

In many divorce cases, the couple agrees to separate as the first step to dissolve the marital union. In Maryland, the couple can choose to voluntarily separate or one party may not, but there are certain requirements they must meet in order to legally separate:

Maryland law defines separation as the condition in which two spouses refrain from BOTH (1) sleeping under the same roof, which generally means in the same building, AND (2) engaging in sexual intercourse. At any point in which two spouses sleep under the same roof even once, even if they sleep in separate rooms, or engage in sexual intercourse, the separation stops and starts over.

A legally sufficient separation is important because that is how a couple qualifies (barring other issues) for an Absolute Divorce. In Maryland, there’s a quirky marital law issue that distinguishes between an “Absolute Divorce” and a “Limited Divorce”. What’s the difference? Our family law attorney Patrick Crawford answers the question:

An Absolute Divorce is a real divorce.  It is what people think of when they think of divorce, and it is what people who want to get divorced want.  An Absolute Divorce is the real McCoy.  When two people are granted an Absolute Divorce, they are no longer married, all property issues and alimony issues have been addressed, child custody and child support issues have also been addressed, and the parties are free to marry other people.

A Limited Divorce, by contrast, is not a real divorce.  It is not what people think of as a divorce. And when parties receive a Limited Divorce, they are still married!!  That’s right.  People who receive a Limited Divorce remain married and cannot marry other people.

When a couple doesn’t mutually agree to separate with an intent to dissolve the marriage, there used to be a provision in Maryland’s marital law that required the separation to be ongoing and uninterrupted for TWO years before an Absolute Divorce could be granted. This requirement has now been obviated, and whether the separation was voluntary and mutual or one-sided and without intent to end the marriage, it doesn’t matter. The fact is when a couple has lived apart and abstained from sexual relations for one continuous year that is enough to satisfy the separation required for an Absolute Divorce. So we think we no longer need to call it a voluntary separation in Maryland because a separation is a separation in order to qualify for a divorce.

Should I keep the children when I separate?

During the separation process, prior to a divorce, the question often arises, do
I keep the children?

If you have children with your spouse, and you intend to
fight for child custody, it is preferable that you keep the children
with you when you separate.  If you are the one moving out, this means that you
should take the children with you.  Having the children live with you during the
separation period will give you greater control over the children’s lives during
the course of the divorce proceeding, will give you an opportunity to
demonstrate, or continue to demonstrate, your fitness as a parent, and will
create a useful history of the children living with you.  All of these things
will be useful to you during a custody trial.

It is not wise to take the children, or keep the children, if one cannot do so
without a violent or a heated confrontation, especially one in front of the children.
However, all else being equal, having the children live with you from the start is generally
in your best interest if you intend to fight for custody.

The Shocked Spouse

A recent blog from a well-respected Virginia attorney was about how
stunned one can be when your spouse asks for a divorce. In virtually every
sentence he used the phrase “shocked spouse” and it resonates. Primarily because
it’s easy (albeit painful) to imagine sitting across from your partner and
feeling devastated as he/she says goodbye to the life you’ve both worked hard to
build. What was the point of the blog other than describing all too well the
thought process one might go through at that moment of no return? In a few words
– get a lawyer.

When your spouse/partner comes to you with the heartbreaking
news (or in some cases the most welcome news) that the marriage is over, it is
likely that there will be a separation agreement presented to you. The agreement
would have been drafted by that spouse’s attorney, who he/she had already
consulted prior to telling you the news, and will seem to make sense to you on
first read. There will be included in it a discussion of sharing the work and
expenses of the children, calculating and equitably distributing the marital
assets, and it will all seem like a neat and tidy way to dispose of your
relationship. Stop right there – while it may seem logical and fair on its face,
don’t be fooled.

One reason you need to seek counsel from your own advocate is
just that – you need your own advocate! Have you ever found it easy to get two
people to agree to anything without discussion and negotiation? When was the
last time it was easy to get two people to agree on a restaurant for dinner or a
movie to watch? It isn’t easy, and now imagine the subject is money (assets) and
work (children)? Again, get a lawyer.

Of course there are many other reasons to retain your own
counsel, and some are obvious such as the lawyer is experienced in the workings
and demands of the courts and legal system. But clearly, the more important
reason is to have someone else in your corner who believes you have an absolute
right to an equitable settlement. Yes, you may be the “shocked spouse” but that
doesn’t mean you lost your good sense, too.

How do I get a legal separation?

I am often asked, “How do you get a legal separation in Maryland?”  The answer
is surprisingly simple.  In Maryland, there is no such thing.

That’s right.  Maryland does not have anything called a “legal separation.”

But that doesn’t mean that spouses cannot separate.  In Maryland, a separation is
defined as a period of time in which spouses are BOTH:
1.    Not sleeping under the same roof, which generally means in the same house or dwelling,  AND
2.    Not engaging in sex with each other.

Both of the above criteria must exist simultaneously.  As long as neither of those
two things are occurring, then the parties are separated.  If either of those
two things occurs even once, the separation period stops and starts
over.

Maryland does not have a method of legally or officially
recognizing or tracking when couples are separated.  If you wish to begin a
separation from your spouse in preparation for a possible divorce proceeding,
you merely need to comply with the above two criteria for a separation, and
remember the start date.

It’s as simple as that.