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. 


My soon-to-be Ex and I are Friendly: Do I Really Need a Divorce Lawyer?

AvatarCasey Florance, Principal

With the proliferation of online resources, and the ongoing pandemic, it is both more tempting and more possible than ever to craft your own Settlement Agreement from the comfort of your living room.

Online “forms” abound, and services like Legal Zoom can help you feel like the “do-it-yourself” (DIY) agreement is tailored to your particular situation. As a result, divorce lawyers frequently get asked: Do I really need a lawyer?

Although it is hard to advise people how to avoid needing my services, I typically tell potential clients that the answer really depends on the circumstances of their case and level of complexity of their custody and/or financial situation, as well as the dynamic between them and their soon-to-be Ex. There are a lot of resources and dispute resolution processes available to the self-represented person (read: divorcing person who does not have an attorney), but there are also many pitfalls.

Regardless of the chosen path and circumstances of the case, however, one thing I always tell anyone who will listen is this: you absolutely must meet with an attorney to review any Settlement Agreement BEFORE you sign it. Here’s why.

  1. It is important to be certain that the language of your Agreement actually sets forth the terms you have agreed upon.

    Just because you and your spouse/co-parent are comfortable negotiating directly and coming to agreed-upon resolutions for the issues arising out of your relationship, does not mean you are comfortable translating those agreed-upon concepts into written agreement terms.

    If your goal is to avoid Court and costly litigation while making your own decisions about your family, then your DIY Settlement Agreement will not serve its intended purpose if you have to spend money later litigating over what your agreement was supposed to say, or worse, seeking the Court’s interpretation of your agreement because you two have a dispute about what your agreement means. It is also important for you to understand your agreement so you know what you need to do once it is signed in order to comply with it moving forward.

  2. You don’t know what you don’t know.

    Many online tools for drafting DIY Settlement Agreements contain a series of options you self-select based on the categories listed. But more often than not, there are details about your custodial situation — or your finances, assets or debts — that are not represented in these pre-drafted menus. Or the options do not adequately capture your specific situation.

    The danger here is that once you sign an Agreement, you may have waived rights you didn’t even realize you had. Furthermore, by neglecting to include entire topic areas in your Agreement, you may have accidentally waived your ability to later address those topics.

  3. There is very likely “boiler plate” language embedded in the form agreement that makes certain provisions unable to be modified for any reason.

    In Maryland, there are often sections of a Settlement Agreement that are unable to be modified by a Court once the agreement is signed by both parties. For example, it is typical for agreements to state that the division of assets cannot be modified by the Court at any point in the future.

    It is also not unusual for time-bound alimony payments to be non-modifiable. As a result, it is extremely important to understand which provisions of your Settlement Agreement are able to be modified in the future, and which ones are not. Failure to understand your agreement – when you had the opportunity to review and understand it before signing it – is an unlikely basis for undoing your Agreement later if you are unhappy with it. And signing an Agreement which says that certain provisions are not able to be changed by the Court may leave you with little recourse.

  4. Ensure that the Agreement meets your goals.

    If you have attended mediation with a third-party neutral and the mediator drafted your Agreement, it remains important to have it reviewed by your own attorney before you sign it. You will want to ensure that the agreement meets your individual goals. Just as important, you want to make sure you actually understand each and every provision of your agreement. Many people don’t realize that a mediator does not represent either party’s interests and cannot provide legal advice; rather the mediator’s goal is to facilitate a resolution.

I recommend anyone going through a divorce to have an attorney guiding them through the process, explaining rights and obligations, strategizing to reach goals, and advocating for their interests. For many people, this option is not feasible for a variety of reasons. When that’s the case, it is nevertheless imperative to meet with an attorney to review your draft Settlement Agreement before you sign it.