| FREQUENTLY ASKED QUESTIONS Separation Agreements |
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| Meiselman & Helfant, LLC 29 Wood Lane Rockville, Maryland 20850 301-279-8840 Fax 301-279-9630 E-mail: info@mdfamlaw.com |
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. 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. 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. 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 modification.
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 altogether?
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 will.
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.
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. 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. 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. 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 modification.
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 altogether?
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 will.
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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| Contact Meiselman & Helfant, LLC Today Call 301-279-8840 |
| Meiselman & Helfant, LLC |
29 Wood Lane, Rockville, Maryland 20850
| Call 301-279-8840 |
| Serving Bethesda, Chevy Chase, Gaithersburg, Germantown, Kensington, Potomac, Rockville, Silver Spring, Wheaton, Montgomery County, Prince George's County, Frederick County, and Howard County. |
