Division Of Property

Source: This section is drawn from the booklet entitled "Legal Rights in Marriage and Divorce in Maryland" produced by and available from The Women's Law Center.  Updated 3/30/01.

Property Rights
Non-Marital Property
Marital Property
Limitations on Jointly Owned Property
Property Rights Upon the Death of a Spouse
A Spouse who Dies without a Will
A Spouse who Dies with a Will
Division of Property
Agreement of the Parties
Equitable Distribution by the Court
Special Note on Pensions and Retirement Assets
Family Use Personal Property

Property Rights

Non-Marital Property

Any property obtained prior to the marriage remains the property of the party who owned it prior to the marriage and as such is non-marital property as long as it is not gifted or titled to the other spouse.  Also, any property received by a spouse by gift or inheritance during the marriage from a third party remains the non-marital property of that spouse unless gifted or titled to the other spouse. 

In the event that the marriage is dissolved and one spouse wants to claim particular items as his or her own, the person must have proof that the property in question belongs to him or her alone.  A couple may acquire joint ownership in property brought to their marriage by either spouse through appropriate agreements or transfers of title. 

Non-marital property is protected from the debts of the other spouse.  Each party has the power to dispose of property owned by him or her alone, as if unmarried. 

Furthermore, a married person may engage in business, make contracts, bring lawsuits and be sued in his or her own name.  Neither spouse is liable for contracts made by the other spouse in his or her name or for the debts the other spouse may have acquired prior to marriage.

Marital Property

All property obtained during the course of the marriage is marital property, regardless of who paid for it.  The exception to this general rule is property received by one spouse as a gift or inheritance from a third party.  As stated above, this property is considered non-marital property.  Marital property can include real estate, bank accounts, stock, furniture, pensions and retirement assets, cars and other personal property.

In addition, effective October 1, 1994, any interest in real estate which is titled as tenants by the entireties (or owned by husband and wife) regardless of whether it was acquired before the marriage or from a third party is presumed to be marital property.

Limitations on Jointly Owned Property

Property jointly owned by husband and wife cannot be sold by one without the consent of the other.  Nor may the creditors of one spouse make a claim to it.  However, a creditor of both parties may move against property jointly owned. 

Property Rights Upon the Death of a Spouse

Upon the death of either spouse, the survivor becomes the sole owner of property held jointly by the couple.  This is true even if the spouse dies without a will.  This is in addition to the property rights discussed below.

A Spouse Who Dies Without a Will

When a spouse dies without a written will, state law governs the division of his or her property.  The share of the surviving spouse depends, generally, on whether the deceased spouse has surviving children or parents. 

If there are surviving children and any of these children are under the age of 18, the surviving spouse receives one-half of the property of the estate after all debts, funeral expenses and taxes have been paid.  If there are surviving children, but none of the children are under the age of 18, the debts, funeral expenses, and taxes are paid and then the surviving spouse receives the first $15,000 plus one-half of whatever is left.  The children share the balance equally. 

If there are no surviving children, but there is a surviving parent of the person who died, the debts, funeral expenses and taxes are paid and the surviving spouse then gets $15,000 plus one-half of whatever is left.  The balance passes to the surviving parent or parents. 

Finally, if there are no surviving children and no surviving parents, the surviving spouse receives all the estate remaining after debts, funeral expenses and taxes have been paid. 

A Spouse Who Dies With a Will

The surviving spouse has a choice.  The surviving spouse can take what is left to him or her under the will or can renounce and elect against the will. Electing against the will means that instead of receiving whatever is left to the surviving spouse, if anything, under the will, the surviving spouse will receive one-third of the property that passes through the will. 

Division of Property

Agreement of the Parties

The parties may agree on the division of any property held by them without the assistance of the court.  

Equitable Distribution by the Court

Absent an agreement, the division of property is governed by the Marital Property Act.  Under the act, all marital property is subject to equitable distribution.

When the court makes an equitable distribution of the property, the court first determines what property belonging to the couple is marital property.  It then determines the value of that property. 

Finally, the court determines who is entitled to what share of the valued, marital property, taking into account the following factors:

• The contributions, monetary and non-monetary, of each party to the well-being of the 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 estrangement of the parties;

• The duration of the marriage;

• The age and physical and mental condition of the parties;

• How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property;

• 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;

• Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award; and,

In lawsuits after 1994, the contribution of either party to the acquisition of the property is also considered.

The court cannot transfer ownership of property titled to one spouse to the other.  In these instances, the court will grant a monetary award to one spouse as an adjustment of the rights and equities of the parties concerning marital property.   However, the parties may agree and take steps to transfer this property on their own in and as a result of a marital agreement.

For example, if a husband owns $10,000 worth of stock titled in his name and purchased with his salary earned during the marriage, that stock is marital property.  The court has no authority to transfer the stock or any portion of it to the wife.  It can, however, take into account the factors listed above and grant a monetary award to the wife based on the value of the stock. 

The court is not required to award 50% of the value of the stock or any set percentage. The amount of the award and the method of its payment are determined after consideration of each of all of the above listed equitable distribution factors.

This area of the law is very complex.  If there are property interests, advice from an attorney is essential.

Special Note on Pensions & Retirement Assets

Pensions can also be part of the marital property “pool.” The court has the ability to determine whether the pension should be included in the marital property and if so, what its value is. 

After the court makes its determination, it can transfer ownership of an interest in a pension, retirement, profit sharing, or deferred compensation plan from one spouse to the other (or both) and/or grant a monetary award to provide for an equitable distribution of the pension. 

This area of the law is very complex.  If there is a pension, advice from an attorney is essential.

Family Use Personal Property

In addition to the concept of marital property, there is also property that is categorized as “family use personal property.”  Family use personal property includes the family home, car, furniture, appliances, etc.  The court has the authority to award exclusive use and possession of the family home and other family use property to the spouse with custody of the minor child or children.  The purpose of such an award is to permit children to continue to live in an environment and community which is familiar to them.  Such an award can last for up to three years from the date of the decree. 

The court must take into account the following factors in making this award:

• The best interests of any minor child;

• The respective interest of each spouse in continuing to use the family use personal property or occupy or use the family home or any portion of it as a dwelling place;

• The respective interest of each spouse in continuing to use the family home or part of it for the production of income; and

• Any hardship imposed upon the spouse whose interest in the family home or family use personal property is infringed upon by an order issued under this section.

Source: This section is drawn from the booklet entitled "Legal Rights in Marriage and Divorce in Maryland" produced by and available from The Women's Law Center.

Last date of legal review 3/30/01.