One of the most stressful and aggravating parts of going through a divorce can be the division of marital property. It is up to the courts to decide how to fairly divide years, sometimes decades-worth of shared property between two former spouses. In some states, a community property regime is in place to help the courts divide marital property. In these states, all property is considered to be owned jointly by both spouses and is divided down the middle upon a divorce or annulment. Maryland is not a community property state; it is an equitable distribution state. The courts in Maryland focus on dividing marital property fairly between two spouses, rather than equally.
What is and is not Marital Property?
Marital property is any and all property obtained during the course of the marriage, regardless of which spouse actually paid for it. It can include houses, cars, furniture, appliances, stocks, bonds, jewelry, bank accounts, pensions, retirement plans and IRA’s. The exception to this rule is anything that one spouse inherits or has gifted to them by a third party. Non-marital property also includes anything that was purchased/owned prior to the start of the marriage. Some assets, like houses, can be both marital and non-marital property. If the house was purchased prior to the start of marriage it is non-marital property. However, if you and your spouse use income earned during the marriage to pay the mortgage of that house, it may then be considered both marital and non-marital property.
Making a Claim for Property Division
If you and your ex cannot agree on how to fairly divide your marital property, a judge can decide for you. In order to determine each person’s share of the marital property, a variety of factors are taken into consideration in the judge’s determination:
- The contributions, monetary and non-monetary, of each spouse to the well-being of their family;
- The value of all of the property interests of each spouse;
- The economic circumstances of each spouse at the time the award is to be made;
- The circumstances and facts which contributed to the divorce;
- The duration of the marriage;
- The age and physical and mental condition of each spouse;
- How and when specific marital property was acquired;
- Any award or other provision which the court has made with respect to family use personal property or the family home, and any award of alimony;
- How much each spouse contributed to the purchase of the property in question
If marital property cannot be physically divided and/or is only titled in one spouse’s name (like a house or car), the judge may order one spouse to pay a sum to the other as a way of fairly dividing the property. One might be allowed to “buy out” the other spouse as long as they can remove him/her from any existing debt on the property. Otherwise, the property will be sold and the funds fairly divided.
This area of the law can be very complex and difficult to navigate. Make sure you have a skillful and knowledgeable attorney by your side to make sure your property is being divided fairly amongst you and your ex. If you need any advice or assistance, let Ferrante and Dill be there for you! Contact us today to set up your consultation!
What do you do when you find yourself in that heartbreaking predicament when, instead of growing old together, you and your spouse just grew apart? For many people the answer is clear: divorce; a complete dissolution of the marriage and a chance to start over with a clean slate. For others, the waters are a bit murkier. What if I we’re not sure? What if we think there’s a chance of a new beginning together but we need some time apart to figure things out? In many cases, a separation can be a cathartic experience for struggling couples, a chance to gain a fresh perspective to maybe come back to the marriage some weeks or months later, and work together to build a healthier relationship. It may already be clear though that divorce is inevitable and it is time to move on. But what exactly does it mean to be “separated” in Maryland?
Each state has its own way of handling separation and divorce. In Maryland there is technically no such thing as a “legal separation”. You don’t need to file anything in the courts in order to legally qualify as being separated. In fact, there’s not much you are really required to do except physically live apart. The closest thing to a legal separation in Maryland is a Limited Divorce.
What is a Limited Divorce?
A limited divorce is the equivalent of a legal separation. It is the legal declaration that you and your spouse are separated but it will not permanently terminate your marriage. Instead, you remain legally married while “legally” living separate and apart from one another. Neither you nor your spouse can remarry and the courts will not make final alimony or property determinations. Filing for a limited divorce is a way to get legal help resolving custody or short-term financial issues for those who don’t qualify for an absolute divorce yet but who are not able to settle their differences outside of a courtroom. And you must have the grounds (the legal reasons) in order to be granted a limited divorce just as you would for an absolute divorce.
What are the grounds for a Limited or Absolute Divorce?
Whether you file for a limited or absolute divorce, you must be able to prove the following grounds in order to be granted the divorce. Those grounds include:
- Separation: you and your spouse have been living separate and apart from one another for a continuous period of one year for an absolute divorce (only one day needed for a limited divorce) and have not had sexual relations
- Mutual consent (absolute divorce only): you don’t have any minor children and you have entered into a written settlement agreement signed by both you and your spouse that resolves all issues between the two of you (more on written agreements below). There is no requirement to live separate and apart.
- Adultery (absolute divorce): as mentioned above, sexual relations between a married person and another person outside of the marriage. There is no requirement to live separate and apart.
- Desertion: an unjustified abandonment with intention of terminating the marriage (one day for limited divorce and one year for absolute divorce)
- Cruel or violent treatment of a spouse or minor child (absolute divorce only)
- Insanity (absolute divorce only): the spouse has been declared legally insane by a licensed doctor, and the insane spouse has been kept in a mental institution for at least three years prior to filing for an absolute divorce
- Incarceration (absolute divorce only): a spouse has been convicted of a crime, has been sentenced to jail for a period of three or more years, and has served at least 12 months of that sentence prior to filing for an absolute divorce
What does it mean to live “Separate and Apart”?
In order to satisfy the requirement of living separate and apart, there must be a complete separation of living areas. Simply moving to another bedroom in the same house is not enough. You must truly live independently from each other. Even one night under the same roof could disqualify you. And a basement or in-law apartment generally only qualifies if you have a separate entrance, bathroom, cooking facilities, and some judges may even have a problem if you share a laundry room. And there can’t be any acts of reconciliation, ie, no sexual relations. Any of these could start the one-year clock ticking again.
What is a “Written Settlement Agreement”?
A written settlement agreement is a contract between spouses that generally resolves all of the end-of-marriage issues such as custody & access, financial support, division of marital property including retirements and real property, taxes, inheritance, etc. Especially if done early enough in the process, a written agreement can help everyone move on with their lives in a much more predicable manner without having to trudge through a lengthy court process. And since by its nature it is a document that is negotiated and agreed upon, it can be far more flexible and reflective of what is important to the family than what a judge can do. Once executed, all terms are binding (except perhaps custody and child support which are always reviewable by a court although generally you will need to be able to justify the requested changes). All of the provisions in the Agreement become court orders at the Judgment of Absolute Divorce and then enforceable like any other court order.
If you find yourself at the fork of separation and absolute divorce, you may have more than a few difficult decisions ahead of you. But choosing a knowledgeable and experienced lawyer doesn’t have to be one of them. The Family Law attorneys at Ferrante & Dill are ready and willing to help guide you down whatever path you choose.