Do I have to be physically separated from my spouse in order to start the divorce process in Maryland?

AvatarCasey Florance, Principal

I hear some version of this question from new clients all the time, and the common assumption is the separation clock has to be ticking before you hire an attorney and before you start negotiating a settlement agreement.

But that’s not the case.

To be eligible to file with the Court for an absolute divorce in Maryland, you must have a ground for divorce at the moment you file. There are several options, as explained in detail by Heather Collier in her post about grounds for divorce  in Maryland. And because one of the “no fault” grounds is a one year separation, many people incorrectly assume that they have to be physically separated for a full year before the divorce process can even begin.

Think of your Divorce Process as a Train Ride

The decision to separate and divorce is when the train leaves the station, but the first stop is usually not filing a lawsuit for divorce with the Court. More typically, actually filing with the Court is one of the last stops on the route, if not the very last stop. The earlier stops involve working to resolve the case, and will include information gathering, negotiation, or mediation.

Those early “train stops” can all be happening while you and your spouse continue to live under the same roof. Many people even resolve their entire case while still living together, and the terms of their settlement agreement will then set out a timeframe for the physical separation, as well as how custody will work and/or personal property will be divided once the physical separation begins.

The train stop for the physical separation may come up at any point during your divorce train ride; most typically it happens somewhere in the middle of the ride, but it could be in the beginning or even after the divorce is final.

Physical Separation and Settlement Agreements

During this conversation, clients also sometimes assume that a physical separation is needed in order for a settlement agreement to be effective. Not so: an agreement between spouses is effective the moment it is signed by both parties, regardless of where each is living.

Furthermore, with the mutual consent ground for divorce in Maryland now available, there is no longer a requirement for a physical separation in order to be divorced by the Court, so long as all issues arising out of the marriage are resolved. The parties start operating pursuant to the terms of their settlement agreement the moment it is signed, regardless of whether they continue to live together, and regardless of whether they will be divorced by the Court next week or next year.   

The safety of my clients and their children is always my top priority, so moving out may have to be the first stop. But absent safety concerns, I typically like to discuss with my clients the advantages and disadvantages of physically separating during the divorce process, as well as the timing of such a move. For example, if there are minor children involved, moving out prior to an agreement regarding custody and the children’s schedule with each parent can have a major impact on custody negotiations and the ultimate outcome. Taking on a second set of housing expenses and the timing of that can likewise have a major impact on the case, particularly regarding cash flow and support issues.

If you are thinking about separation or divorce, I always recommend having a consultation with an experienced divorce attorney right away. It will serve your best interests to be educated about the process, your rights, and your obligations; how to protect yourself; and how the law will apply to the facts of your case.

Your attorney can help you come up with a clear strategy and work through all the decisions you will need to make in your case, including the major ones like when and how to physically separate from your spouse.