Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

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Friday, November 5, 2010

When Should I Get a Separation Agreement?


Oh no. It's finally happened. After years of struggling to keep it together, you and your spouse have decided to separate and probably (but perhaps not definitely) get divorced. So what now?


Usually at this moment, people are seized and even paralyzed with fear. Fear borne from uncertainty.



That's why folks should pursue a Separation Agreement as soon as they are able to do so. The reason for a Separation Agreement is to settle the issues that arise when you separate or divorce. Many of these issues are immediately pressing, such as who will leave the family home? How will the bills be paid? When will we each see the children? Do I need to see a lawyer? What about health insurance?



A Separation Agreement in Maryland is the legally binding contract between the parties which settles the issues relating to marital and non-marital property and support for spouses and children. Folks get a Separation Agreement instead of submitting their issues to a judge to decide at a trial.



The State of Maryland has some confusing laws in separation and divorce matters. In particular, folks don't understand when to get a Separation Agreement given the one-year separation period (for voluntary separation and other causes of action, although there are other time periods for other causes of action). Must you wait the one-year period before getting a Separation Agreement? No. You may have to wait to get the divorce, but you don't have to wait to settle the issues. After all, how else will the parties know how the bills will be paid and how the children will be shared?



Most people start out with an informal, verbal agreement on some of these issues. But in this situation, it is impossible not to feel insecure with informal commitments.



When I conduct separation and divorce mediation, we set an agenda. The most pressing issues are at the top of the "to do" list. These often include who shall leave the home, child custody and bill payment (including the rent or mortgage and of course all of the basics like food, gas, clothing). The next step is to flush out the bigger issues relating to what will happen to the family home and the parties' bank accounts and retirement funds.



Obtaining a Separation Agreement will be a giant step to calming the fears of the unknown. Only when the unknown is settled can folks really "move on". The greater the fear, the more urgent the need for a formal agreement.



Naturally I would suggest that mediation is the place to begin the process of getting to settlement and a Separation Agreement. In mediation, you control the process- setting the date and time and length of the appointment, thereby controlling your work and child schedules and the rate of outflow of mediation fees. So what first, mediation or attorney consultation? That depends. Usually attending at least one (1) session of mediation gives the parties some idea of what the other person is seeking and makes for a more meaningful attorney consultation. Imagine having an expensive 2-hour attorney consultation about alimony only to find out in the first session of mediation that your spouse doesn't seek alimony.



I know that after the decision is made to separate, fear and paralysis are difficult foes. Conquer fear and paralysis by addressing settlement by getting a Separation Agreement. If you choose mediation to get it done, you are choosing the least stressful alternative.

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