Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Maryland, but does include
basic and other provisions.
General Summary: Separation and Property Agreements
may be entered into by the parties dealing with issues of alimony, support,
property rights, or personal rights, before a divorce is filed to be effective
when signed as a contract. The terms of an agreement presented to
the court and incorporated into the decree of divorce is thereby approved
by the court. A separation agreement incorporated into a subsequent
decree of divorce, but not merged into the decree, remains an independent
agreement enforceable as a contract. If the agreement is merged into
the decree, it is no longer enforceable as an independent contract but
as an order of the court. If the parties wish to preclude modification
of the terms of the agreement, the agreement must contain a clear non-modification
clause.
Statutes:
Deeds, agreements, and settlements valid:
(a) Deed or agreement.- A husband and wife may make
a valid and enforceable deed or agreement that relates to alimony, support,
property rights, or personal rights.
(b) Settlement.- A husband and wife may make a valid and
enforceable settlement of alimony, support, property rights, or personal
rights. § 8-101.
Deed or agreement not bar to divorce:
A deed or agreement between spouses is not a bar to an action for
absolute or limited divorce, regardless of whether the deed or agreement
was executed:
(1) when the parties were living together or apart; or
(2) before, after, or while there was a ground for divorce.
§ 8-102.
Modification of deed, agreement, or settlement:
(a) Provision concerning children.- The court may
modify any provision of a deed, agreement, or settlement with respect to
the care, custody, education, or support of any minor child of the spouses,
if the modification would be in the best interests of the child.
(b) Exception for provision concerning support of spouse.-
The court may modify any provision of a deed, agreement, or settlement
with respect to spousal support executed on or after January 1, 1976, regardless
of how the provision is stated, unless there is a provision that specifically
states that the provisions with respect to spousal support are not subject
to any court modification.
(c) Certain exceptions for provision concerning alimony or
support of spouse.- The court may modify any provision of a deed, agreement,
or settlement with respect to alimony or spousal support executed on or
after April 13, 1976, regardless of how the provision is stated, unless
there is:
(1) an express waiver of alimony or spousal support; or
(2) a provision that specifically states that the provisions with
respect to alimony or spousal support are not subject to any court modification.
§ 8-103.
Voluntary separation agreement as corroboration of testimony:
In a suit for absolute divorce on the grounds of voluntary separation,
a separation agreement is full corroboration of the plaintiff's testimony
that the separation was voluntary if the agreement:
(1) states that the spouses voluntarily agreed to separate;
and
(2) is executed under oath before the application for divorce is
filed. § 8-104.
Power of court to enforce or modify provisions:
(a) Enforcement by power of contempt.-
(1) The court may enforce by power of contempt the provisions
of a deed,
agreement, or settlement that are merged into a divorce decree.
(2) The court may enforce by power of contempt or as an independent
contract not superseded by the divorce decree the provisions of
a deed, agreement, or settlement that contain language that the deed, agreement,
or settlement is incorporated but not merged into a divorce decree.
(b) Modification.- The court may modify any provision of a deed, agreement, or settlement that is:
(1) incorporated, whether or not merged, into a divorce
decree; and
(2) subject to modification under § 8-103 of this subtitle.
§ 8-105.
Case Law:
Where the agreement provides that it shall be incorporated but not
merged in the decree, it is patent that the parties did not intend merger
and the agreement survives as a separate and independent contractual arrangement
between the parties. On the other hand, where the agreement does
not include a non-merger clause and it is incorporated in the decree, the
agreement is superseded by the decree. The agreement, once incorporated
and merged in the decree, is enforceable through contempt proceedings and
may be modified by the court. Johnston v. Johston, 297 Md.
48 (1983) 465 A.2d 436
Where the parties intend a "separation agreement" to be incorporated
but not merged in the divorce decree, the agreement remains a separate,
enforceable contract and is not superseded by the decree. Johnston
v. Johston, 297 Md. 48 (1983) 465 A.2d 436
Where the property settlement agreement is presented to the court
for approval and is approved by the court and incorporated in the divorce
decree, the validity of the agreement is conclusively established and the
doctrine of res judicata operates so as to preclude a collateral attack
on the agreement. Johnston v. Johston, 297 Md. 48 (1983)
465 A.2d 436
