What is a Legal Separation in Maryland?

Technically, there is no Legal Separation in Maryland. In Maryland, whether or not a couple is separated is a question of fact. If spouses are not having sexual relations and are not sleeping under the same roof (in the same residence), then they are considered to be separated. However, people often use the phrase “Legal Separation” to mean that they have signed a contract, called a separation agreement, which settles their marital property rights, alimony claims and other issues — but they have not yet obtained a divorce.

Can I force my spouse to move out of the marital home?

Post-separation living arrangements are a major concern for most divorcing couples, and many spouses want to know whether they can force the other spouse to leave the marital home.

Generally, the court is not inclined to bar one spouse from the marital home. In most instances, the courts will order the parties to “tough it out” and continue to live with each other until their case is fully litigated or resolved by agreement.

If the home is jointly titled or leased, you cannot force your spouse to leave the home. Each spouse has an equal right to stay and live in a jointly owned or leased home.

However, violence occurring in the home could change this equation. A spouse may be removed from the marital home for a period of time if there is a history of domestic violence in order to protect the safety of the other spouse or child of the parties. For this to occur, the abused spouse must seek and obtain a protective order which prohibits the abuser from any further contact. If granted, the abusive spouse may be banned from the marital home.

Whenever a court decides issues related to the custody of a minor child, the Court may also award use and possession of the family home to the custodial parent until the final divorce hearing. The other spouse is then required to vacate the home during the use and possession period.

Beyond the use and possession period, and at the time of divorce, the Court can either order the sale of the home, transfer the home to one spouse, or award the custodial parent use and possession of the home for up to three years from the time of the divorce. Upon conclusion of a use and possession order, the home will be sold or transferred to the other spouse.

What is a pendente lite hearing and why do I need one?

The time immediately following a separation can be stressful for many reasons. The emotional and financial trauma of separation is compounded by the fact that there are no rules or guidelines to direct either side on what to do next. Not surprisingly, the newly separated spouses cannot agree on anything and are generally very angry and often not able to initially reach the most basic of agreements. Thus, when no temporary settlement is reached the court will schedule a pendente lite hearing to temporarily resolve these issues.

Pendente lite is Latin for pending litigation and refers to relief the court can award to spouses while their divorce litigation is pending. Accordingly, a pendente lite hearing is set at the time of the Scheduling Hearing (generally the parties’ first appearance in court) and is typically scheduled within a couple of months of the filing of the initial Complaint. At this hearing, the court can award temporary relief to either party, including visitation, child support, alimony, attorney’s fees, litigation costs, maintenance of health insurance and, rarely, use and possession of the family home.

It is important in some cases to resolve certain issues prior to the final divorce since some divorces may take a year or two to be finalized and the parties may need a temporary decision on issues during that time. In this way, a pendente lite hearing provides an opportunity for the litigants to resolve very basic and pressing issues.

Often times, a pendente lite hearing is heard before a Family Division Magistrate in the Circuit Court, who makes recommendations to a Judge. Either party may file exceptions if they object or disagree with the Magistrate’s recommendations. The exceptions are then ruled upon by a Circuit Court Judge.

Once a pendente lite order is issued by a Judge, it will stay in effect until the parties’ custody trial or divorce trial.

Have any questions about this topic, please call me (240)617-0405.