A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together.
When you initially execute a marital separation agreement you usually do not have to file the separation agreement with the court to be effective.
If you have no marital property, no joint debts, and no children, you probably don’t need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Settlement Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.
In Maryland, if you have a Marital Settlement Agreement your divorce pleadings will be simpler and less complicated and it will be absolutely clear to the court that you have an uncontested divorce.
When you initially execute your Marital Settlement Agreement you do not have to file the Agreement with the Court to be effective.
The typical separation agreement, or a stipulation of settlement resolving a divorce should state whether the agreement is to survive the judgment of divorce as a separate contract, or whether it should be merged and incorporated into the judgment of divorce thus allowing for modification similar to a court order. Which should you choose?
Where it Does Not Matter
Your decision will have no effect on the issue of custody and visitation because these issues can be modified until a child reaches the age of 18. The court will base its decision upon whether there is a change of circumstances that render it in the child’s best interest to modify the custody and/or visitation provisions.
Your decision will also have no effect on the issue of distribution of assets. The Court will not modify the terms of distribution.
Where it Makes a Significant Difference
1) Spousal Support/Maintenance – If you have stipulated in advance that your divorce agreement will be merged into the judgment of divorce, then the court can later modify the duration and amount of maintenance if circumstances are presented to warrant the raising or lowering of the amount. However, if the divorce agreement survives the judgment, it is a contract that the court may not modify.
2) Child Support – If the agreement on divorce merges into the judgment, then the court may modify that support upward or downward when a change of circumstances may warrant modification. On the other hand, if the agreement survives the judgment, then the standard for upward modification is an unforeseen and unanticipated change of circumstances that would warrant an increase in support. However, a request for a downward modification in support is significantly harder to prove, and becomes something to think about when deciding whether or not to elect this option.
3) Right to Sue – If the agreement survives as a separate contract, then even if the judgment is modified by the court, the other party can sue under contract law to enforce the contract obligation and obtain a money judgment for what is owing and seek to collect it. If, however, the agreement is merged and the judgment is modified then the payer cannot separately sue for enforcement of the contract. Indeed, in this situation there is no separate surviving contract on which to sue.
Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case – the divorce itself, the property division, child custody, alimony, etc. Uncontested divorces fall into two categories – (1) Consent Divorces – the parties agree on all major issues; and (2) Default causes – where the respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it, or because he or she cannot be located. By entering into a Marital Settlement Agreement you make your divorce an uncontested divorce.
A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage. You and your spouse can amend the agreement if you both consent to the changes; or it can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.
In an uncontested divorce, the court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses without fraud or coercion. Often the court may want to review financial affidavits attached to the agreement in order to determine its fairness.
In negotiating your agreement, you should be guided by how a court is likely to divide your property, award custody and child support, and deal with other issues.
In an “equitable distribution state” state, like Maryland, all property acquired during the marriage is “marital property” and all property is divided into marital property (which means it is both yours and your spouse’s) and non-marital property (which means the property belongs to either you or your spouse alone). In general the following rules apply which categorize property into “marital” or “non-marital” property:
1. If the asset or debt was acquired after the date you were married it is presumed to be a marital asset or debt.
2. A non-marital asset or debt is one that was acquired before the date of your marriage. It is also a non-marital asset if you acquired it through a gift or inheritance. Income from non-marital property is also considered non-marital property.
3. Even if an asset or debt was acquired by your spouse individually, it is considered to be a marital asset or debt, if acquired during the marriage. This includes rights in pension and profit-sharing plans.
4. Real estate that is in both names is considered marital property.
In Maryland, the basic rule is that all marital property is divided equally.
Last Revised: November 22, 2020