How Is Marital Property Divided in Maryland If You Divorce?
By Beverly Bird
Maryland courts divide marital property based on the law of equitable distribution. This is the legal way of saying that you may or may not receive 50 percent of the assets you and your spouse acquired during your marriage. However, you can divide everything equally by agreement and the court will honor that. But if you can’t come to an agreement and you need the court to apportion your marital property for you, a judge will do so in a way that seems fair to him. This may or may not also seem fair to you.
Marital Vs. Separate Property
Maryland makes a distinction between separate and marital property, just as other states do. Property you owned before you married isn’t subject to division in a divorce, provided you didn’t change title into joint names. Any property you received by way of gift or inheritance is also yours alone, no matter when it was given to you. Everything else you acquired from the date you married until the actual date of your divorce is marital property, including income. This is true even if you or your spouse hold title in your separate names.
Equitable Distribution Factors
In legal terms, equitable means fair and just, not necessarily equal. However, judges must base their determinations of what's fair on certain factors. For example, if your spouse earns twice as much as you do, the court will presume that his income funded two-thirds of your marital assets, while your income only contributed one-third. This might result in a 65/35 division in his favor, rather than 50/50. However, household labor is deemed just as contributory to a marriage as earnings, so this might tilt the ratio back in your favor if you didn't pursue a career because you were home taking care of the family. Judges can also consider marital misconduct, such as adultery, when deciding equitable distribution of property. If the higher earning spouse had an extramarital affair that ended the marriage, it would not be just, equitable or fair for the other spouse to suffer for his behavior and leave the marriage with only 35 percent of the assets.
How Property Is Divided
Generally, courts divide marital property so that one spouse receives certain assets totaling her percentage of their overall value and the other receives assets totaling his percentage. In many cases, Maryland courts have the power to order transfer of title from one spouse to the other to achieve this. However, exceptions exist. A judge can order the transfer of retirement funds, but he cannot order direct transfer of real estate or stocks. To achieve equitable distribution of these assets, Maryland law allows judges to order a monetary award, equal in value to that particular asset’s worth. For example, if you’re to receive a $20,000 share of the equity of the marital home, the judge can’t order the sale of the house, but he can order your spouse to pay you $20,000 instead.
Impact of Custody
Maryland judges reserve the right to award the marital home to the custodial parent for a period of up to three years post-divorce. The law does not want children displaced due to their parents’ divorce, forced to change schools and lose the homes they’ve grown up in. When this occurs, the award of the home can affect the division of other property. For example, the custodial parent might receive one less asset in exchange for keeping the home for this period of time.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.