DIY or Consult a Lawyer? Creating a Separation Agreement in Maryland

If you and your partner have decided to separate rather than divorce, at least for now, you may be wondering whether or not it makes sense to write your own separation agreement. Let’s address the pros and cons of doing it yourself after a quick look at separation agreements in Maryland.

Quick Basics on Separation Agreements in Maryland

In the past, you could get a “limited divorce” in Maryland. This was, in effect, Maryland’s term for legal separation. In 2023, Maryland abolished limited divorce.

Today, you and your spouse can still separate, of course, but you can no longer get a decree of legal separation in Maryland. As a result, the process of separating in Maryland has become somewhat simpler, even though the agreements themselves have not. This change in the process has encouraged some people to write their own separation agreements, usually through buying online templates.

If you have been wondering whether creating your own DIY separation agreement using an online template is a good way to save some money, or if this will come back to bite you, read on.

Do We Even Need a Separation Agreement?

It’s not required for some types of divorce, but a separation agreement in Maryland, if property executed, is still a legally enforceable contract between you and your spouse.

Even though not always required, it is preferred. It demonstrates that both parties agree to the separation, meaning you can’t be blamed for abandoning your spouse down the road. It can also give you protection and security in such matters as child custody, child visitation, child support, property division, alimony, health insurance, life insurance and other important issues. If you do proceed to divorce eventually, the settlement agreement in whole is used to write the terms of the divorce settlement if both spouses are still in agreement. In other words, it becomes the blueprint for the divorce.

Requirements for a Valid Separation Agreement in Maryland

Technical Requirements

Certain technical requirements must be met for a Maryland court to consider your separation agreement valid.

• Written: It’s not enough to just verbally agree.
• Signed by Both Spouses: Of course, both parties must sign voluntarily.

Additional Contractual Requirements

Meeting technical requirements such as making sure your separation agreement is signed correctly is not enough for it to be enforceable. You will also need to meet the following parameters:

• Fair and Reasonable Terms: The agreement should be fair and equitable to both parties. Everything does not have to be exactly 50/50, but if the agreement is unconscionably unfavorable to one party, a Maryland court might not enforce it in the face of a dispute.
• Full Financial Disclosure: Both spouses must disclose everything relevant to the terms of the agreement such as the nature and value of their assets, income, debts and expenses. It’s impossible for someone to agree to property division or financial matters is they don’t have the underlying information.
• Voluntary and Informed Consent: The agreement must be entered into freely and without coercion. Both parties should understand their rights and obligations.

To avoid a party successfully contesting a separation agreement, we highly recommend that not just one but both spouses have separate attorneys. That will go a long way to showing that each party understood the terms and entered into them voluntarily and without duress.

Can We Modify Our Separation Agreement in Maryland?

You can both agree to modify or even revoke your separation agreement. The couple may want to do this due to life changes, such as one party losing a job or getting a promotion, or any of a number of other reasons. All changes, and also a revocation if the parties decide to get back together, should be in writing and notarized. Once again, we recommend that each party have their own attorney look it over to guard against claims of misunderstanding or coercion later.

What Should Be Included in a Separation Agreement?

Each couple’s separation agreement will (or should) vary somewhat from others, because people have various financial and family circumstances. You need to determine what is important to you, but here are some critical issues.

Child Custody and Visitation

It can save a world of problems if you both agree to terms of child custody and visitation in your separation agreement. Do you want joint physical custody? Joint legal custody? What happens if you cannot agree on significant issues affecting your children? When is the child scheduled to be at each house? When is visitation? How do you want to manage the trade-off? There are a lot of issues around child custody that we cannot go into in this article. If you have children, we very highly advise you to have an attorney draw up your separation agreement and have your spouse’s attorney review it (or vice versa).

Child Support

If you have children you will want to include provisions for child support including who will pay it and how much. You will want to run the Maryland Child Support Guidelines and make sure you understand the financial consequences of your custody arrangement.

Property Division

You will want to include terms about how to divide property. This can be both time-consuming and difficult if your property is substantial. Acrimony often arises over shared property whether it’s the family home, cars or even a record collection. You don’t have to give the family home to one or the other, but you will need to determine who is going to live there unless you are planning to be separated but under one roof.

Property Acquired and Debts Incurred After Separation

You should include terms regarding property or debts acquired after you are separated. It’s common for each party to just be responsible for any new debts they incur and to keep any property acquired. But that’s not the only way to structure your separation agreement in Maryland.

Health Benefits, Life Insurance Policies, and Other Policies

Sometimes people choose to separate rather than immediately divorce so one spouse can remain on the other’s health coverage. Whether that’s the case for you or not, you should consider if it makes sense.

Other things to consider are policies or financial instruments where a spouse is designated as a beneficiary. If you want to change your beneficiaries to someone else, or even if someone else is already the beneficiary, be sure to include this in your separation agreement.

Tax Implications

When you separate, it can often affect your taxes. Do you still want to file jointly? Who will get the tax exemption for dependent children? What other tax matters specific to your case do you need to discuss?

Separation Agreement Disputes

You may find after signing your separation agreement and living with it for a while, that issues come up you had not anticipated or life circumstances change. You may want to address how to handle disputes if you both can’t agree, possibly through mediation. You can also address how to handle specific life changes right in the separation agreement, such as what will happen if a spouse loses their job or wants to move out of state. 

So, Just What Are the Risks of Writing Our Own DIY Separation Agreement in Maryland?

As you can see from our partial list of what to include in your separation agreement, they can get very complex. If you have no children and little property, you could probably get away with doing it yourself with an online template just to indicate that you both consider yourselves separated. But if you have children, real estate such as a house, or property of any value, you are really taking big risks by creating your own separation agreement. If you are not an attorney in the area of family law, it’s unlikely you will know all the ins and outs.

Following are some of the risks that could invalidate your separation agreement.

Risk 1: Ambiguous or Incomplete

The most common problem with DIY agreements is unclear or vague language. For example, if your agreement says “Husband will pay child support” without specifying how much, when, or for how long, it’s practically unenforceable. Maryland courts require specific, measurable terms for enforcement.

Risk 2: You Don’t Know What You Don’t Know

An experienced family law attorney knows the relevant issues and law, and just as important, how a court will apply that law. For example, you may not understand all the possible tax implications of a separation.

Another example is when a court considers some property to be marital property and some property to be separate and personal to one party. Are you sure you know the difference? Are you giving up rights to property that should not even be up for negotiation?

Risk 3: Inadvertently Unconscionable

You and your spouse may agree to the terms of a separation agreement you draw up yourself, but that doesn’t mean a court will consider it fair. An experienced family law attorney will know what terms a court will be willing to enforce and what terms will move the court to throw out the agreement as inherently unfair or unreasonable if there is a dispute later on.

How Do I Decide Whether or Not to DIY or Get an Attorney?

In some cases, such as when neither of you own any property to speak of and have no children, it may make sense to create your own DIY separation agreement. In that case, the primary purpose is to show you both agree to the separation. But even if you don’t have children or assets, it can save you a lot of trouble to consult a family law attorney for guidance for an hour before you write your separation agreement.

But other cases, where the couple is more established, it is wise to have a lawyer create the agreement and for the other spouse’s lawyer to review it. This is true if the couple has children, real property, or other valuable property. There is much that can go wrong when drawing up any kind of contract that can cause a court to interpret it in a way you had not expected or throw it out altogether.

Jimeno & Gray is Ready to Help

If you are considering a separation agreement in Maryland, our experienced family law attorneys are ready to help you. Contact Jimeno & Gray to set up a consultation.