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Just about everyone understands what it means to be married or divorced, but there tends to be confusion around the term “separation,” especially since the definition varies from state to state. In Maryland, there is no such thing as a “legal separation” ordered by a court. Whether or not a couple is separated is a question of fact. If a married couple is no longer living under the same roof, are no longer having sexual relations, and intend to terminate their marriage, they are considered to be separated.
Although there is no court-ordered legal separation in Maryland, there are legal arrangements that can be made for couples that choose to live separately.
Spouses who are living apart may choose to enter into a separation agreement that addresses only the terms and circumstances of their separation. This can give them time to think about the other issues, and help define their rights during the separation period. It also can serve to establish the date of the separation. They also may choose to enter into a broader marital settlement agreement, sometimes called an MSA. A marital settlement agreement is a contract between spouses that includes the terms for their separation, and which can also include child custody, child support, alimony, how marital property will be divided, and other issues. Couples do not need to go to court to establish a separation agreement or a MSA, but like any contract, may need to go to court to enforce either one. Both a separation agreement and a MSA can be legally binding on the spouses; if and when they decide to end the marriage, the MSA can be incorporated into a mutual-consent divorce and thereby become a court order.
Although Maryland does not offer legal separation, until October 1, 2023, the state recognized “limited divorce,” which was similar to what most people think of when they think of a legal separation. In contrast to “absolute divorce,” which terminates a marriage, in a limited divorce, spouses were still legally married but living apart. The court established the parties’ rights and responsibilities regarding child custody, child support, alimony, division of property, and other issues. With a limited divorce, the spouses could separate their assets and finances, but they could not legally marry someone else unless they obtained an absolute divorce. With the significant recent changes to Maryland divorce law, however, limited divorce was abolished in the state.
Since the definition of separation in Maryland currently involves living apart, many spouses wonder if they can force their spouse to move out of the marital home. If the home is titled in the name of both spouses, or if a rented home has both spouses on the lease, one cannot force the other to leave.
There are some circumstances in which a court might award the use and possession of the marital home to one spouse during a separation or pending divorce. If there is a history of domestic violence and the abused spouse pursues and receives a protective order, the court may allow them to stay in the marital home while banning the abusive spouse. Also, if the court is deciding custody of a minor child, it may award exclusive possession and use of the marital home to the custodial parent pending a divorce, and even for a period of time afterward if appropriate; the non-custodial parent would then have to find other lodging. Aside from these circumstances, couples are often left to resolve this issue on their own.
It is ideal if spouses can agree to separate and agree on their rights and obligations to each other while separated. Of course, that often doesn’t happen. As a result, couples can find themselves in a kind of limbo between the time they physically separate and the time a divorce becomes final. A pendente lite hearing is frequently necessary to clarify matters.
A divorce can take many months or over a year to become final. That’s a long time for spouses to dwell in uncertainty about support, custody, and other issues. Pendente lite hearings are generally scheduled within a few months of the filing of a divorce complaint. They are often heard by a Family Division magistrate in the Circuit Court, who then makes recommendations to the judge in the matter.
Pendente lite means “during the litigation,” and a pendente lite hearing allows a court to establish the parties’ rights and responsibilities while a divorce is pending. For instance, the court might award one parent custody of the children and temporary use and possession of the marital home until the divorce is final. The other parent would receive visitation and be ordered to pay child support.
If either spouse disagrees with the magistrate’s recommendations, they can file exceptions, which will then be ruled on by the judge. Once any exceptions are addressed, the judge issues a pendente lite order which will remain in effect until there is a final order in the divorce.
Getting separated from your spouse in Maryland can be stressful. It might seem as though everything in your life is changing, and you may not be sure what your rights are. If your spouse has left your home, or you are thinking about separating from your spouse, it’s important to have clarity about your situation. Whether you intend to remain separated indefinitely or terminate your marriage, you should meet with an experienced Maryland family law attorney to discuss your options. Contact Strickler, Platnick & Hatfield to schedule a consultation.
