Maryland Separation Agreement FAQs

Content written by Meiselman & Helfant, LLC

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What is a “legal separation”? 

In Maryland, whether or not a couple is separated is a question of fact. If husband and wife are not having sexual relations and are not sleeping under the same roof (in the same residence), then they are separated. People usually use the phrase “legal separation” to mean that they have signed a contract, called a separation agreement, which settles all of their marital property rights, alimony claims, and other issues – but they have not yet obtained a divorce.

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, so 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 executed on or after April 13, 1976, regardless of how the provision is stated, unless there is: (1) an express waiver of alimony or spousal support; or (2) 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, and particular questions must be resolved by reference to particular language of the agreement. The primary source for determining the intention of the parties is the language of the contract itself. However, a contract is not ambiguous just because the parties disagree as to its meaning.

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 used would tend to have more than one meaning to a “reasonable person.”

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. For example, to establish duress there must be a wrongful act which strips the individual of the ability to utilize his or her free will.

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.