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Separation Before a Maryland Divorce

patrickcrawford | January 21, 2020

Many people choose to try a period of separation from their spouse before they decide to get divorced. Some spouses are able to reconcile and never file for divorce, while others realize they prefer living apart and pursue the dissolution of their marriage. Separation is not the same thing as divorce, as it does not legally end your marriage. You cannot legally marry anyone else, and you might still accrue marital property

Married couples in Maryland should understand how separation relates to the divorce process in our state, as it is an important concept in many divorce cases. You should discuss separation and how to protect your rights with experienced Annapolis divorce lawyer Patrick Crawford today. 

Should You Separate?

Some married couples do not want to live in separate residences, as it can significantly increase expenses during an already stressful time. However, there are many cases when living separately for 12 months is necessary to move forward with a divorce. Your options for divorce in Maryland include:

  • No-fault grounds for divorce, which requires that you live separately for 12 months prior to filing the petition
  • Fault-based grounds for divorce, such as adultery or cruelty, which require that you prove the grounds you claim
  • Mutual consent no-fault grounds, which requires no separation period as long as you have no minor children and neither spouse contests any issues in the divorce

Not every divorce requires a period of separation. However, if you cannot prove any fault grounds and you have children and/or cannot agree on all relevant issues, the only option left is to live separately for one year in order to get a divorce. 

What Qualifies as Separation for the Purposes of Divorce?

Some spouses might have been sleeping in different bedrooms and living different lives for all intents and purposes, though they still live under the same roof. Even though such spouses might consider themselves to be separated, this does not qualify for the purposes of filing for divorce. 

Instead, spouses who need to meet the 12-month separation requirement must live in separate residences, have no sexual relations, and admit there is no hope of reconciliation of the marriage. If the separation is voluntary on the part of both spouses, they must meet these criteria for one year before the court will consider a divorce petition. If one spouse does not want to end the marriage or get separated, the other spouse can still seek a divorce, though the required separation period is extended to 24 months. 

It is important to document the exact date of separation – and ensure you continually meet the requirements for separation – in order to file for divorce as soon as you possibly can. If you cannot show that a voluntary separation was truly voluntary on the part of both spouses, the judge will not grant a divorce after one year. If you cannot show that you truly lived in different residences and did not have sexual relations for the full year, the judge will not grant the divorce. 

You should discuss how to document your separation with your Annapolis divorce attorney to ensure you do not need to wait longer than necessary. 

Does a Trial Separation Count?

As mentioned above, some spouses want to live apart for a while to help decide whether they really want to get divorced. One spouse might move out, and they may or may not communicate regularly during this time while they try out living separate lives. It is important to recognize that such trial separations usually do not count toward the 12-month required separation for a divorce.

This is because a trial separation insinuates that you are simply trying the situation and that you are not truly sure whether you want to reconcile or not. If there is a chance of reconciliation, it will not count as a voluntary separation for divorce purposes. 

If one spouse is certain about the divorce and the other wants a trial separation, this period may count toward the 24-month period of time needed for a contested divorce. One spouse will need to be sure that they do not want to reconcile and will need to avoid sexual conduct with their spouse during this time. 

Separation Agreements

When you are living apart for a year or longer, there are issues that you will need to address with your spouse. These can include how to share child custody, who gets what property,

how to divide assets and debts, and whether one spouse will need to receive financial support from the other. Similar to a divorce case, a skilled attorney can help you negotiate with your spouse to nail down the details of how your separation will work. You might need to participate in mediation to agree on all relevant issues. 

Once you are in agreement, your attorney can draft a separation agreement, which is a legal contract. This agreement will make clear the rights and obligations of each of you during your separation, and you are expected to adhere to the arrangement. In addition, if you have a separation agreement in place, it can serve as proof that you both agreed to be separated at a certain time, which can help prove that you meet the requirements for a divorce. 

Limited Divorce

Maryland law does not have “legal separation” like many states do. Instead, our state offers the option of seeking a limited divorce. When you think of divorce, you likely are thinking of “absolute divorce,” which legally terminates the marriage, allowing you to marry someone else and ending any benefits of marriage.

A limited divorce, on the other hand, does not end your marriage. It allows you to live separately, though you are still legally married, and you cannot marry another person. If you have sexual relations with another person, it will constitute adultery. 

A limited divorce solidifies issues such as child custody and financial support in a court order. Each spouse is prohibited from wasting or negatively handling marital property if there is a limited divorce. Since you do not need a separation period for a limited divorce, this can allow you to live apart on court-ordered terms while still leaving open the possibility of reconciliation. 

If you decide not to reconcile after a limited divorce, you can then pursue an absolute divorce once you meet the separation requirement. However, you are not required to first have a limited divorce before you seek an absolute divorce. 

Discuss Your Options with an Annapolis Divorce Lawyer

Many people have questions about separating from their spouses. Should you move out? Should your spouse move out? Should you try to reconcile? Do you need a separation agreement? Should you file for a limited divorce? How do you share money and property during separation?

These are all questions to review with a trusted Annapolis divorce lawyer. The right lawyer will evaluate your specific situation and advise you of all of your options when it comes to separation and divorce. At the Law Office of Patrick Crawford, we help clients through the process pre-divorce, as well as after a divorce petition is filed. If you would like to learn about your options, call 1-410-216-7905 today.