Separation Agreements

NOTICE: None of these questions and answers constitute legal advice. To
obtain legal advice, consult with an attorney. This is especially important
in divorce and family law matters, in which outcomes are often peculiar to
the particular facts and circumstances of the case.
    Q. What is a "legal separation"?  

    A. 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.

    Q. What issues can be addressed in a separation agreement?

    A. 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.

    Q. Can a separation agreement include terms that a court could not order?

    A. Yes. Parties often include provisions in a separation agreement which are
    beyond a court's power to order. However, once included in a separation
    agreement, such terms can be enforced by court order.

    Q. Do Maryland courts encourage separation agreements?

    A. 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.

    Q. How is a separation agreement enforced?

    A. Terms of a separation agreement, which has been incorporated into a divorce
    decree, are enforceable either through contempt proceedings or as an
    independent contract.

    Q. Can a court modify or change the terms of a separation agreement?

    A. 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 any court

    Q. Are there rules for interpreting the meaning of a separation agreement?

    A. 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 to it disagree as to its meaning.

    Q. What if there is a dispute about what the parties meant?

    A. 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.

    Q. When is the language of an agreement considered ambiguous?

    A. 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.

    Q. What can be done when a separation agreement is ambiguous?

    A. Remember, it is not the court's task to rewrite an agreement to correct an
    ambiguity, to avoid hardship to a party, or because one party has become
    dissatisfied with its terms. However, when the court finds an agreement
    ambiguous, the court may receive evidence to clarify its meaning.

    Q. Are there any circumstances in which a separation agreement is invalid

    A. As with other contracts, a separation agreement is voidable, and subject to
    "recision" (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

    Q. What if only part of an agreement is unfair?

    A. Usually, a party may not affirm the favorable part of a separation agreement, or
    accept its benefits, and avoid the unfavorable part.
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