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June 22, 2016
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!