Maryland’s Mutual Consent Divorce & Separation Agreements – Where do I start?

You and your spouse may have agreed that it is time to go your separate ways but how exactly do you even begin to detangle your lives?

Maryland’s mutual consent divorce laws allows couples to bypass the 12-month separation period previously required to file for divorce.  However, to qualify for a mutual consent divorce, you and your spouse must first enter into a written separation agreement resolving any issues involving custody, access or parenting time, child support, alimony and the division of marital property.   

This may sound simple in theory but it can be difficult to make sure that your agreement contains all of the necessary details, that it is consistent with the law, and that it protects your legal rights.  An experienced family law attorney can draft a separation agreement that is tailored to you and your specific needs and save you not only tens of thousands of dollars but give you peace of mind.

If you are thinking about entering into a separation agreement with your spouse and are not sure of what to include, here are some questions to ask yourself if you have minor children:

1. Custody

   1. Legal Custody – Who will make decisions regarding health, education, and religious issues?

      1. Will one parent have sole legal custody and make all of the decisions?

      2. Will the parents have joint legal custody and work together to make joint decisions? 

      3. What if we have a hard time making joint decisions – we are getting divorced, after all!

         1. Will the parents have joint legal custody with one parent having the authority to make the final decision in the event that the parents are not able to agree on an issue?

         2. Will the parents agree to submit an issue to a mediator (typically a family law attorney, a retired judge, or a social worker specializing in family interventions)?

         3. Will the parents agree to use a parent coordinator (a trained family law attorney or social worker who will meet with the parents, as needed, to help them reach mutual decisions?1`

   2. Physical Custody – Where will the kids live and how will they divide their time between the parents during the school year, during school breaks, and during the holidays? 

      1. This by itself can be a daunting and overwhelming task.  An experienced family law attorney can guide you through the different types of custodial schedules based on your family history.

2. Child support

   1. If you and your spouse’s aggregate gross monthly income is $15,000 or less, the Maryland Child Support Guidelines will apply.  If that’s the case, you may want to ask yourself if there are any applicable work-related child care expenses, health insurance expenses, extraordinary medical expenses (expenses for orthodontia, therapy, or any medical expense in excess of $100), and school and transportation expenses that need to be included in the calculation pursuant to the Maryland Child Support Guidelines. 

   2. If you and your spouse exceed the gross monthly income threshold of $15,000 per month, you will want to ask yourself if you want to calculate child support by extrapolating from the Maryland Child Support Guidelines (calculating child support based on an algorithm) or you may want to determine the appropriate amount of child support through a closer examination of the children’s monthly expenses such as private school tuition, extracurricular activities and other expenses that would not typically be included in child support guidelines.

3. Health insurance

   1. Which parent will cover the children on their health insurance and for how long?

   2. How will medical and other health expenses that are not covered by health insurance be divided?  Equally or in proportion to your respective incomes?

4. Extracurricular activities, tutoring, summer camps, etc.

   1. How will these expenses be divided?

   2. What expenses will be agreed upon?

   3. Will parents have to take the children to those activities on his or her time, particularly when the time is now limited?

5. College

   1. Do you or your spouse have any college savings accounts?

   2. Do you and your spouse want to reach an agreement about future college savings?

Here are some questions to ask yourself if there are property issues:

1. The Marital Home

   1. Were there any non-marital funds used to purchase the home? If so, how, if at all, will those funds be addressed?

   2. Does one spouse want to continue to live in the marital home? If so, how and under what terms will the other spouse transfer his or her interest?  Who will pay for the costs of maintaining the home?  Is it in writing, in an agreement?  What about unexpected, large repairs, how will they be paid for?

   3. If the home is going to be sold, when will it be listed for sale, how will you select the realtor, how will any staging costs or repairs be paid, and how will any sales proceeds be divided?

2. Retirement assets

   1. Did one spouse start saving for retirement prior to the marriage? If so, how will those savings be treated?

   2. How will any marital retirement assets be divided?

   3. Are there any pensions? If so, how will you divide those pension interests?

   4. Who will be responsible for having any Qualified Domestic Relations Orders, or other qualified orders needed for the division of retirement assets, completed?

3. Vehicles

   1. How will the vehicles be divided and titles transferred, if necessary?

   2. Is a vehicle subject to a loan in both of spouses’ names? If so, how will the spouse who wants to keep the vehicle assume financial responsibility for it?

   3. How will the equity in the vehicles be calculated or offset in an agreement?

4. Bank accounts

   1. Joint accounts – if you have minor children, do you want to agree to keep a joint account open for their expenses?

   2. How will any other marital bank accounts be divided?

And if that were not enough, there are also miscellaneous questions such as:

1. Alimony

   1. If your case fits the 12 criteria for alimony or spousal support, how much alimony will be paid and for how long?

   2. Is your agreement regarding alimony going to be modifiable in the future or not?

   3. What about a catastrophe clause in the event someone gets fired, laid off or injured and cannot work.  What if an unforeseen event like a global pandemic struck and employment changed unexpectedly?

2. Taxes

   1. Will you file taxes jointly if you are not officially divorced by the end of the year? If so, how will any refund be divided or how will any tax liability be paid?

   2. If you have children, who is going to claim the children as dependents on their tax returns when you start filing separately?

   3. Who will claim the mortgage interest deduction and property tax deduction?  What if it is being paid by the other spouse from the support being paid to that spouse?

These are just some of the considerations you will want to make when thinking about a separation agreement.  It is easy to see how the details can get complicated and overwhelming very quickly, but that is where a family law attorney can help.

An experienced Maryland family law attorney can walk you through these issues and help you understand your options and legal rights.  You wouldn’t take apart your car engine without some mechanical experience or attempt to treat yourself medically without consulting with a physician and you shouldn’t attempt to navigate the complex seas of a family law agreement without first consulting with an attorney.  Many clients seek our services after having drafted their own “internet” form agreements or after signing an agreement they were unhappy with.  But, buyer’s remorse is not a basis to vacate an agreement.