Separation Means True Separation
Provided by Belli, Weil & Grozbean, P.C.
By: Stuart H. Grozbean, Esq.
Question: I'm currently living with my
wife while I look for another place to live. (We plan ultimately
to divorce.) I understand that there needs to be a period of
separation before the courts grant a divorce. Is there a legal
definition of "separation" which I should be aware of?
Answer: Voluntary separation is when two parties agree
that they need to go their own way. Even though it may not start
out as a "voluntary" situation, the parties can eventually come
to a mutual agreement that separation was inevitable.
Most states require that you live separately for the statutory
period of time. This means no cohabitation. Separation means
residing (and sleeping) in different locations at all times.
Separate bedrooms in the same house does not constitute a
The courts distinguish between separation and "desertion", which
is when one of the parties leaves without the intention of
returning. If the other person forces you to leave, that is
"constructive desertion." You won't be penalized by the court if
you leave for your own protection or that of the child(ren).
Question: When is separation the appropriate course?
Answer: Before you think about separation, ask yourself
if you've taken all reasonable steps to make the marriage or
home situation better by working together. Did you try sitting
down calmly with your spouse to discuss the situation? Did you
try counseling, either individually or as a couple? Talking to a
psychologist, social worker, pastor, or trusted family friend
may provide the necessary medium for working out differences.
If you have children, consider the impact of staying (or
leaving) on them. And never bring them into the fight. Always
remember: Children may be resilient, but their armor is only so
thick. Children know more, see more and hear more than you
think. If staying together is creating an emotionally troubling
situation for them, perhaps separation is the best option.
Question: If I decide to go ahead with it, how should I
go about separating from my spouse?
Answer: Make a plan, if possible. You can't just kick
your spouse out of the house (unless perhaps the home is titled
in your name only), and leaving the house may impact your
chances for obtaining custody or protecting property interests.
Consider where you're going, what possessions and vehicles you
can take with you, who the children will stay with, how the
children will be cared for, and how bills will be paid.
If you can, discuss a separation with your spouse and agree on
temporary arrangements. If possible, put any agreement in
writing. A handwritten agreement signed by both parties is
enforceable in court and will provide extra protection for you.
If your spouse is not in agreement about a separation, consult
an attorney before leaving the marital home. An attorney can
assist you in planning for a separation that doesn't jeopardize
Question: How do I provide for myself and the children
during the separation?
Answer: Once separated, you can apply to the court for
several types of relief. First, you may request child support if
you have custody of the minor children. The question is always
"how much?" Both of you are going to have to contribute. One of
you probably will think they are getting too little and the
other probably will think they are paying too much. Fortunately,
most states have implemented child support guidelines. This
mandated method of calculation takes some of the guess work out
of who pays how much.
Question: But there's more to support than a monthly
check. What about education or braces or money for sports
competitions? What about medical expenses or counseling?
Answer: The court can grant both temporary and permanent
support. Be knowledgeable about how support is calculated;
changing the amount of support is neither automatic nor easy. A
modification of support in the future will require a significant
change in financial circumstances.
A second type of support is spousal support or family
maintenance. You can request that your spouse contribute to the
mortgage and household expenses. If the court has determined
that you and the minor children should remain in the marital
home, the court may also grant an award of support. The court
will generally assess the needs of the party requesting relief
and the ability of the other party to contribute.
Question: How does a judge decide who will be awarded
custody of the children?
Answer: The courts use the "best interests of the
children" standard in assessing a custody situation. If the two
of you can work together, then a joint or shared custody
arrangement may be right for you and your children. If effective
communication between yourself and your spouse is not a reality,
sole custody may be the only option. Having the court decide who
should have custody is the very last option. The courts also
look to whether an individual's bad acts are acts that have
harmed the children.
Question: What does "custody" mean, exactly?
Answer: Custody comes in two forms: legal and physical.
Legal custody is the authority to make decisions concerning the
minor child(ren)'s health, education and welfare. Physical
custody pertains to where the child(ren) sleeps for the majority
of the time. Generally, the courts will grant legal custody to
the parent having physical custody. This makes sense since the
parent taking care of the child(ren) may have to make emergency
Two parents may share custody or one parent may have sole
custody. There are several possible combinations of custody:
shared (joint) legal with sole physical; shared legal with
shared physical; or sole legal with sole physical. While many
parents convey their desire for shared or joint custody, the
Maryland courts are not inclined to grant shared custody unless
that is the established arrangement.
Information provided by:
Belli, Weil & Grozbean, P.C. located at
REAL LAWYERS-FOR REAL
PEOPLE-WITH REAL PROBLEMS
A Maryland law
firm also serving the District of Columbia and the Nations.
Maryland lawyers who understand the laws and how to protect your
YOU SHOULD REMEMBER
THE INFORMATION THAT YOU READ HERE IS GENERAL IN NATURE AND NOT
MEANT TO BE A SUBSTITUTE FOR SPECIFIC LEGAL ADVICE FROM AN
MAIN OFFICES IN:
ATLANTA & SAN FRANCISCO
equity or refinance?
We accept credit cards***
Telephone Conversation / consultation does not create an
attorney client privilege and is only meant to provide
general information. If you intend to create an attorney
client relationship and privileges you must set an
office appointment. Free consultation does not apply to
employment matters.***Credit card fees may apply.
* Free consultation for
up to 10 minutes by
phone or in person. To be determine by law firm.:
Note: Telephone Conversation / consultation does not create an
attorney client privilege and is only meant to provide general
information. If you intend to create an attorney client relationship
and privileges you must set an office appointment.
offices are separately owned and operated law firms. No other
inference of connection is implied or represented. Law firm does
not assume any responsibility or liability express or implied as
to any other affiliate office.