Structure of the Agreement



A. Basic Structure and Recitals

The various provisions of the marital settlement agreement should be logically grouped and follow one another in sensible sequence. The factual recitals setting forth the background leading up to the execution of the agreement may be set forth in either a simple "prose style" or paragraphed with the legalistic "whereas" clauses. The prose style has been employed in the Sample Marital Settlement Agreement in the Appendix to this chapter.

B. Reservation of Grounds for Divorce

See Sample Marital Settlement Agreement.

Unless the parties agree otherwise, the marital settlement agreement should contain a clause whereby each party expressly reserves any ground for divorce which either might have against the other.285

C. Separation

See Sample Marital Settlement Agreement.

1. Voluntary separation

With the advent of mutual consent as a ground for absolute divorce, the parties need not live separate and apart to establish grounds for divorce, where they have executed a settlement agreement resolving the issues of alimony, property, and custody and child support, and provided that neither party seeks to set aside the agreement.286 To obtain a divorce on the grounds of voluntary separation, where the parties intend the separation to be of a voluntary nature, this fact should be set forth in the recitals and must be set forth in the body of the marital settlement agreement. If the separation is to take place as of the date of the agreement (see Sample Marital Settlement Agreement), appropriate language should be utilized. However, if the agreement is dated on the day of the separation, the parties should be advised that one should immediately vacate the common dwelling. Since Lillis v. Lillis,287 it is clear that the parties must be physically living in separate domiciles before a voluntary separation can be effective. Although there are cases involving situations where the parties have lived together after the execution of a voluntary separation agreement,288 the safer procedure is still to be sure that the parties do not spend the night under the same roof after execution of the agreement.

Where the separation has taken place prior to the execution of the agreement (see Sample Marital Settlement Agreement), the date that the voluntary separation became effective should be set forth in the marital settlement agreement. Care should be taken to be sure that the date specified in the agreement does not precede a date where the parties occupied a common dwelling or cohabited.289

Statements contained in a marital settlement agreement implying that a voluntary separation has taken place can have significant importance even though the agreement might not be signed by both parties. See Benson v. Benson,290 where

[t]he wife sought to introduce into evidence a written agreement, signed and sworn to by the husband on January 2, 1953, but not executed by her. The court ruled it out, although it contained a recital that "the parties hereto are now and have been for some time past living apart," and provisions that they would thereafter live separate and apart and that neither would seek restoration or enforcement of conjugal rights.

The document also called for certain properties to be transferred and for the payment of certain monies. The agreement recited that the wife intended to file suit for divorce, although the ground was not stated.

The agreement was not acceptable to the wife, and she refused to sign it. It was offered on the theory that it was a sworn recognition by the husband of the state of affairs between the parties at that time, in the nature of an admission. For that limited purpose, we think it is relevant and should have been admitted.

Care should be taken to advise a client that he or she may still be open to a charge of adultery notwithstanding the fact that the parties have agreed to live separate and apart voluntarily. See Holofcener v. Holofcener,291 stating that notwithstanding the fact the parties were voluntarily living separate and apart, when one commits adultery, the same does not preclude the "innocent" party from proceeding for a divorce on the culpatory grounds, as an agreement to live separate and apart does not create a "license for licentiousness."292

2. Non-voluntary separation

See Sample Marital Settlement Agreement. When a voluntary separation is not intended, care must be utilized in the recital and body sections of the marital settlement agreement to exclude any language or provision which might be interpreted as a consensual separation. See Kershaw v. Kershaw,293 in which the Court construed that the parties agreed to mutually live apart where their arrangement contained a waiver of alimony in consideration of the wife's obtaining her share of the proceeds from the sale of a jointly owned farm, when considered in connection with her actual departure immediately after sale.

D. Custody and Visitation

See Child Custody in the Sample Marital Settlement Agreement.

1. Sole custody

Although courts are not precluded from awarding joint and split custody,294 the usual judicial decision opts for primary custody to one parent with reasonable rights of visitation or specific rights of visitation being awarded the noncustodial parent. Agreements of the parties tend to follow the judicial determination sans agreement.

Maryland courts have clearly held that denial of visitation rights does not authorize one in suspending payments of support.295 In Lee v. State,296 the Appellate Court of Maryland stated:

Appellant posits that he is discharged of the obligation to make child support payments because his former wife left him without justifiable cause and has prevented him from contacting the children. We find this argument to be absurd. His proper remedy if he is denied visitation is to file a petition seeking visitation. If visitation were already authorized in the divorce proceeding, appellant should seek a contempt citation. In no event, however, does he have the right to withhold child support payments.

2. Joint custody

a. Meaning of the term

Although Maryland's Appellate Court of Maryland has stated " '[j]oint custody . . . is an arrangement in which (1) the parties share equally the authority and responsibility for making decisions that significantly affect the welfare of their child and (2) the child lives with each of them on an equal or split time basis,' "297 the Supreme Court of Maryland has refined that definition:

While it is clear that both parents in a joint custody arrangement function as "custodians" in the sense that they are actually involved in the overall welfare of their child, a distinction must be made between sharing parental responsibility in major decision-making matters and sharing responsibility for providing a home for the child. . . . Embraced within the meaning of "custody" are the concepts of "legal" and "physical" custody. Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare. . . . Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent's rights are superior to the other. . . . Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. Joint physical custody is in reality "shared" or "divided" custody. Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights. . . . Proper practice in any case involving joint custody dictates that the parties and the trial judge separately consider the issues involved in both joint legal custody and joint physical custody, and that the trial judge state specifically the decision made as to each.298

The term "joint custody" carries great weight and is of specific legal significance as it relates to legal custody. With respect provisions providing for physical custody or access, the term may generally describe the custody or access arrangement, but the specific time-sharing schedule will typically control.

One of the number of factors that a court must take into consideration in determining whether to award joint custody is whether there is an agreement to share custody.

Generally, the parents should be willing to undertake joint custody or it should not be ordered. We are asked by appellant, and by the Women's Legal Defense Fund as amicus curiae, to hold that a trial judge may never order joint legal custody over the objection of one parent. They argue, with some force, that unwillingness on the part of one parent to share custody inevitably presages intransigence or inability to cooperate in making decisions affecting the welfare of the child. While we agree that the absence of an express willingness on the part of the parties to accept a joint custodial arrangement is a strong indicator that joint legal custody is contra-indicated, we are unwilling to fashion a hard and fast rule that would have the effect of granting to either parent veto power over the possibility of a joint custody award. A caring parent, believing that sole custody is in the best interests of the child, may forcefully advance that position throughout the litigation but be willing and able to fully participate in a joint custody arrangement if that is the considered decision of the court.299

"Joint custody" is not a term found in Maryland's child support guidelines. Instead, "shared physical custody" gets the nod, which means each parent keeps the child overnight for more than 35% of the year.300

3. Future...

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