Separation Versus Divorce in Maryland

The are several, important differences between a separation and divorce in Maryland. Continue reading to learn more.

By , Attorney

In Maryland, the terms "separation" and "divorce" are sometimes used interchangeably. However, there are important legal distinctions between obtaining a separation versus a divorce in Maryland. This article provides an overview of the rules governing separations and divorces under Maryland law. If after reading this article you have questions, contact a local family law attorney for advice.

What Is a Legal Separation in Maryland?

Maryland law does not recognize legal separations, although limited divorces are similar. Instead, separation is a "ground" or reason for divorce in Maryland as explained below. A couple has separated if they live apart, do not engage in sexual relations during that time, and intend to end the marriage.

Maryland law recognizes two types of divorce: limited divorces and absolute divorces. "Limited divorces" refer to what most people think of as a legal separation. Under a limited divorce, spouses can live in separate homes but share income and resources. A limited divorce order will help a couple delineate finances and designate each parent's custody rights. However, under a limited divorce the couple is still married—neither spouse can remarry. See Md. Fam. L. Code § 7-102 (2020).

Like a legal separation, under a limited divorce order, spouses can't sell or divide marital property. A limited divorce is often used when spouses can't settle the issues of their divorce themselves, and this process gives the couples time to live apart and try to work out the terms of the divorce or reconcile.

What Does It Mean to Get Divorced in Maryland?

An "absolute divorce" is what most people think of when they think of divorce. Under an absolute divorce, the marital bonds are terminated, property is divided, and the spouses can go their own way and remarry if they wish.

Couples can seek a limited divorce before obtaining an absolute divorce. Specifically, a limited divorce can help establish the date of separation, which is necessary to obtain an absolute divorce. In other words, you can change a limited divorce into an absolute divorce, but a limited divorce is not necessary in order to get an absolute divorce.

Maryland Divorce Grounds

Before you can obtain a limited or absolute divorce in Maryland, you must provide the court with "grounds" or the reason for your divorce. The grounds for a limited divorce in Maryland are:

The grounds for an absolute divorce in Maryland are:

  • mutual consent (if couple signs a written settlement)
  • adultery
  • desertion for 12 months or more
  • conviction of a crime with at least a three (3) year sentence and at least one (1) year has been served
  • incurable insanity and institutionalization of spouse, and
  • voluntary separation for 12 months or more.

In Maryland, separation or mutual consent are the only "no-fault" grounds for divorce. "No-fault" means that the divorce wasn't caused by either spouse's misconduct. In a no-fault divorce, neither spouse has to prove that the other did something which caused the breakup. See Md. Fam. L. § 7-103 (2020).

For couples seeking a limited divorce based on separation, there is no time period requirement. By contrast, to obtain an absolute divorce on the grounds of voluntary separation, spouses have to meet the following requirements:

  • voluntarily live in separate homes
  • refrain from having sex with each other
  • for 12 consecutive months before filing for divorce, and
  • have no reasonable chance of reconciliation.

Are My Spouse and I Separated if We Share the Same House but Sleep in Separate Beds?

No. The rules are very strict in Maryland. To be considered separated, spouses must:

  • not live in the same house, and
  • not have sex with each other.

In Maryland, sleeping in different rooms is not enough. Remember, that even though spouses live in different homes during separation, they are still married until a judge enters a Judgment of Divorce. This period of separation is necessary in order to eventually obtain a no-fault divorce.

Why Is it Important to Follow the Rules Regarding Separation?

To get divorced in Maryland, even based on separation, the spouse seeking the divorce (the plaintiff) still has to prove to the judge that the requirements for the divorce are met. If the plaintiff can't prove that the spouses have been living separate and apart and have not had sex for the required time period, the judge won't grant the divorce.

For an absolute divorce on separation grounds the plaintiff also has to prove to the judge that both spouses agreed to separate and there's no reasonable chance of reconciliation.

What Is a Trial Separation?

For couples unsure about whether they really want to get a divorce, there's a "trial separation." A "trial separation" means the spouses live in different homes and test-out a separation and see whether they can reconcile or want to move forward with a divorce.

Be careful if you want to try a trial separation. Usually, the time a couple spends in a trial separation will not ultimately count toward the 12-month separation period required to obtain an absolute divorce. This is because if spouses are just trying out separation, there is still a possibility of reconciliation.

Do I Need a Separation Agreement?

Many times, spouses agree to live in separate homes until they can obtain a divorce. With the help of a mediator or lawyers, a couple can sort out separation issues like, child custody, child support, alimony, and financial issues. When the spouses make such an agreement before filing for divorce, put it in writing, and have it notarized, it's called a "separation agreement."

Separation agreements serve two important purposes. First, a separation agreement fixes the rights and responsibilities of the spouses between each other and forms a binding contract even before a judge enters a Judgment of Divorce. Second, in the case of a voluntary separation, a separation agreement proves that both spouses agreed to the separation. A separation agreement can make it easier to get a judge to grant your divorce.

Modifying Separation Agreements

A separation agreement can change if the couple revokes the agreement and gets back together, creates a new separation agreement, or if the judge changes the terms of the agreement in a limited or absolute divorce. A separation agreement isn't the same as a divorce decree. A judge may follow some of the terms of the couple's separation agreement when deciding a divorce, but isn't bound by the agreement's terms. For example, a judge will decide child custody based on a child's best interests, regardless of what a separation agreement says about custody.

Enforcing a Separation Agreement

If either spouse violates the terms of a separation agreement, the other spouse can bring a lawsuit to enforce the agreement. A couple's separation agreement can be incorporated into a divorce decree. Once the separation agreement becomes part of a divorce order, it can be enforced through a show cause hearing like the other terms of a divorce.

Keep in mind that a court may honor many of the terms in a separation agreement when deciding a divorce. However, once the couple is divorced and a divorce decree is entered, a separation agreement is no longer enforceable. Only the terms of the separation agreement that become part of the divorce order can be enforced by either spouse.

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