Factors in deciding whether to reach a separation agreement for your divorce in Maryland – PART I

There are many legal, financial, and practical issues that one should consider before signing a separation agreement also known as a separation and property settlement agreement in Maryland. But first let’s discuss the general pros and cons of reaching a separation agreement in divorce cases in Maryland.

Some of the benefits of reaching a separation agreement are the certainty that you gain from it. The disputed issues in your divorce case can be resolved one of the two ways: by reaching an agreement or litigating it in court and letting a judge making those decisions for you. Obviously, there is very little certainty regarding the outcome of your divorce case and the related financial issues if they are left for a judge to decide. At times, even experienced divorce lawyers and litigators are surprised when a court decision is handed down. To borrow a phrase, the devil that you know is better than the devil that you do not know. A separation agreement will probably not get you everything you want but you will know what the terms and parameters are, what are your rights and obligations, what will you get and you will not get, and whether it includes terms that you could live with.

It is important to keep in mind that the courts are not in the business of punishing a “bad spouse;” that simply is not part of the court’s mandate. A spouse’s behavior is only one of the many factors under the statute that courts consider in deciding the equitable division of marital assets. There are serious cases of misconduct by one spouse toward the other such as serious or repeated physical abuse or other acts that are tantamount to cruel and vicious conduct (such as smoking around a spouse who is suffering from cancer) in which case the court may make it a bigger factor; however, most courts usually take an analytic approach for determining what are the extent and value of marital property and how they should be equitably divided between the parties.

Most judges deal with issues of marital infidelity on regular basis and they may not be as sensitive to it as you are. That is not to say that infidelity and adultery are complete non-factors, but you should not misunderstand that to mean that if you could prove adultery you will receive all or the vast majority of marital assets just based on spouse’s adultery. Again, there are those rare cases when a spouse has systematically and continuously hurt and harmed the health and/or wellbeing of the other spouse in which case the parties conduct could be a more significant factor in how the court divides the marital assets. To put this issue in context, you should consider that having a protracted court case could become very costly and whether for example receiving 55-60% of the marital assets (versus a 50-50 division) will be worth the legal fees that you will have to incur to obtain a judgment that may grant you the additional 5-10% of the martial assets due to spouse’s misconduct. Clearly, if the parties own millions of dollars in marital assets the difference may make it worthwhile but if the marital assets are more limited in value then the cost of long, contentious litigation may not be worth the return in investment.

Another possible benefit of resolving the disputed issues in your divorce case is potentially decreasing future friction with your soon to be ex-spouse if you have minor children with them. Many couples have minor children at the time of their divorce and will have to interact with each other regarding their children long after the divorce. A separation agreement could be a stepping-stone to a more civil interaction between ex-spouses which should promote a healthier environment for your children as well as yourself.

This article is a Part of series of articles by Kamkari Law regarding Separation Agreements in Divorce Cases in Maryland. For additional information and to have full context please read my additional articles on this subject.

Author: Shane Kamkari, Esq. is an experienced divorce attorney whose offices are based in Bethesda, Montgomery County Maryland. Shane has handled and litigated hundreds of divorce cases in courts of many counties in Maryland since 1998. The areas that Kamkari Law primarily practices in are Montgomery County, Frederick County, Howard County, and Prince George’s County.




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