Maryland Separation Agreement FAQs
Find out what a divorcing couple can include in their separation agreement.
Like other states, Maryland encourages divorcing couples to reach their own voluntary agreements about how they will separate their lives and property. However, this doesn't mean couples can agree to whatever they want: The court has the power to modify agreements regarding the care and support of the couple's children, for example.
Below are some answers to common questions about separation agreements in Maryland. For more information on Maryland divorce law, see our Maryland Divorce and Family Law page.
Do Maryland courts encourage separation agreements?
Yes. Separation agreements are generally favored by Maryland courts as a peaceful means of terminating marital strife and discord, as long as they are not contrary to public policy.
Can a separation agreement include terms that a court could not order?
Yes. Parties often include provisions that are beyond a court’s power to order. However, once included in a separation agreement, such terms can be enforced by court order.
What issues can be addressed in a separation agreement?
In Maryland, a husband and wife may make a valid and enforceable agreement that relates to alimony, support, property rights, or personal rights. Provisions regarding custody and visitation, child support, alimony, debts, pets, cars, household furnishings, health insurance, life insurance, retirement and survivor benefits, business interests, bank accounts and investments, and attorney fees may also be included in a separation agreement.
How is a separation agreement enforced?
Where a separation agreement has been incorporated into a divorce decree, the terms are enforceable either through contempt proceedings or as an independent contract.
Can a court modify or change the terms of a separation agreement?
A Maryland court may modify any provision of an agreement with respect to the care, custody, education, or support of any minor child of the parties, if the modification would be in the best interests of the child.
In addition, a Maryland court may modify any provision of an agreement with respect to alimony or spousal support unless the agreement includes:
- an express waiver of alimony or spousal support, or
- a provision that specifically states that the provisions with respect to alimony or spousal support are not subject to court modification.
Are there rules for interpreting the meaning of a separation agreement?
A separation agreement is subject to the same general rules governing all contracts. This means that all questions about the contract's intent must be resolved by reference to the language of the agreement. The primary source for determining the intention of the parties is the language of the contract itself. Unless that language is ambiguous, the words of the contract determine its meaning (as opposed to, for example, what each party thought the contract meant).
What if there is a dispute about what the parties meant?
A Maryland court is required to give effect to an agreement’s “plain meaning,” without regard to what the parties actually thought it meant or intended it to mean. The terms of an agreement are given their usual and ordinary meaning, unless it is clear that the parties assigned a special or technical meaning to certain words. Put another way, the test of what is meant is what a “reasonable person” in the position of the parties would have thought the contract meant.
When is the language of an agreement considered ambiguous?
Contractual language is considered ambiguous when the words could be interpreted in different ways by different reasonable people.
To determine if contractual language is ambiguous, a Maryland court reviews the contract itself. It must also consider the character of the contract, its purpose, and the facts and circumstances of the parties at the time the contract was executed.
What can be done when a separation agreement is ambiguous?
Remember, it is not the court’s task to rewrite an agreement to correct an ambiguity, to avoid hardship to a party, or to rectify a party’s dissatisfaction with the terms. However, when the court finds an agreement ambiguous, the court may receive evidence to clarify its meaning.
Are there any circumstances in which a separation agreement is invalid altogether?
As with other contracts, a separation agreement is voidable, and subject to rescission (meaning cancellation or annulment), if it can be shown that it was unconscionable or was obtained through fraud, duress, or undue influence. These are usually difficult to prove.
What if only part of an agreement is unfair?
Usually, a party may not affirm the favorable part of a separation agreement, or accept its benefits, and avoid the unfavorable part. This could be especially unfair in the case of a separation agreement, which generally represents a negotiated deal. Wiping out one party's obligation to do something might make the rest of the contract unfair, if that obligation was an important part of the overall negotiated bargain between the spouses.
Written by Meiselman & Helfant, LLC
For more information: www.meiselmanandhelfant.com