When couples separate for a long time, without divorcing or a settlement agreement, there are consequences.
In Maryland, the court determines which property is marital, its value, and the division of marital property – all as of the date of the divorce. Marital property is property acquired during the marriage.
When married couples separate without divorcing, property that accumulates during the marriage – even during the separation period – is still marital property subject to division in the divorce. Long time separated couples risk that the other spouse will benefit from property accumulated during the separation. This applies to homes, checking and savings accounts, investment accounts, retirement benefits, and any other assets. While the court may make adjustments, there is no requirement to do so or any specific formula to apply.
Evidence tends to fade over time. Witnesses forget or move out of one’s life.
Documents are lost or destroyed. Evidence of date of separation values, of non-marital assets (such as premarital, inherited, or gifted), and of how property was used can be important in an eventual divorce case. Especially if one wants to persuade one’s spouse or the court to divide property other than as of date of divorce or to justify how marital property was used during the separation.
And, joint debts incurred or paid off during a long separation only complicate matters. For example, one spouse running up a balance on a joint credit card or line of credit, for which the other spouse is liable (but about which the spouse has no knowledge). Or, one spouse paying down a joint mortgage on real estate, while the other lives elsewhere without contributing. The court can consider existing debt in divorce, but is far less predictable when addressing retired debt.
Imagine also drastic changes to the spouses’ relative income situations after separation. This raises the potential for alimony – based entirely on circumstances after the marriage practically – but not legally – ended. Health, disability, age, financial success or failure are all factors.
Consider, too, if separated spouses go on to have other families and spend marital income and assets on those families over a long period of time. Again, the law is ill equipped to address this.
An estranged spouse may have priority to make healthcare decisions on behalf of an incapable spouse, despite the separation.
If a spouse passes away during the long separation period, the survivor has the right (unless waived in a signed document) to administer the estate and inherit as much as fifty percent of the deceased’s spouse’s property.
In conclusion, a prolonged separation without a divorce or settlement agreement is risky. Some spouses deliberately choose not to divorce, in which case, it is well worth considering the benefits of a written and signed agreement so expectations and obligations are clear.
For others, a prolonged separation…just…happens. For those couples, it is well worth talking with an attorney to understand the pitfalls and make educated decisions, rather than suffer unintended consequences.