Do You Need to Separate from Your Spouse To Get a Divorce?

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Understanding Separation Requirements in Divorce

The question of whether to separate from a spouse is one of the most difficult decisions that someone about to go through a divorce faces. There may be thoughts of “not wanting to throw in the towel,” feelings of shame, or conflicts with religious beliefs as reasons for not wanting to separate. Then, there are concerns about “how am I going to support myself,” “where will I live,” or “what effect will this have on the children” that have to be addressed before the decision to separate is made. Once the decision to separate is made, the process of separation begins.

What Constitutes a “Legal Separation” in Maryland? 

Technically, there is no such thing as a “legal separation” in Maryland, but read below for further explanation. 

Separation is currently defined as living separate and apart from a spouse in separate residences without cohabitation. Without cohabitation means that the parties are not engaging in sexual relations with each other. As of the date of this blog, there are bills before the Maryland Legislature to eliminate most grounds for divorce and to change the definition of separation. 

Currently, there are 2 types of divorce in Maryland that are granted based on “separation.” The first type of divorce is called a Limited Divorce. If there is such a thing as a “legal separation” in Maryland, a limited divorce may be that thing. A limited divorce is judicial permission to live separate and apart from a spouse. To obtain a limited divorce on the ground of separation, the parties must be living separate and apart without cohabitation. When a limited divorce is granted, technically, the parties are not fully divorced: they cannot get married to another person; and when granting a limited divorce, a court cannot address all of the issues regarding the distribution of marital property.

The second type of divorces in Maryland based on “separation” is an absolute divorce. To obtain an absolute divorce on this ground, the parties must be living separate and apart in separate residences without cohabitation for at least 12 months. To obtain an absolute divorce on this ground, the parties must live separate and apart without cohabitation for at least 12 months “without interruption.” If the parties have resumed living together or have had sexual relations with each other during the separation period, they cannot obtain an absolute divorce on this ground.

Many people say that they are “legally separated” when they have signed a separation agreement, but have not yet obtained a limited or absolute divorce. There is another ground called “mutual consent” where parties are able to obtain an absolute divorce. If the separation agreement resolves all issues pertaining to alimony, the distribution of property, and custody, access, and support of children, the parties may obtain an absolute divorce on this ground.

How Are Living Arrangements Addressed During a Separation?

Under most circumstances, a court does not determine who lives where during a separation. That is up to the parties to determine. However, there are 2 exceptions.

  • If domestic violence has occurred, a court may remove a party from the marital home for a certain period of time and may order that party to stay away from the home.
  • If the parties have a minor child under the age of 18, a court may award “use and possession” of a “family home” to one of the parties or divide the possession and use of the family home between the parties. A “family home” is property in Maryland that is owned or leased by 1 of the parties, and is being used by 1 or both of the parties and a child.

A court may award use and possession of a family home “pendente lite,” which means while the case is pending. A court may also award use and possession of a family home for up to 3 years after the entry of a divorce.

Understanding how to obtain a divorce is important to deciding whether or not to separate and how to separate. You need someone experienced who can guide you through the divorce process. 

Contact us today, and let us know how we can serve you.

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The lawyers at Meiselman Helfant & Wills, LLC, are experienced Maryland divorce and family lawyers.

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