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Last page edit 03/05/07
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Property Disposition in Divorce
To get a rough idea about your legal situation and the law,
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A Few Facts About Property in Maryland
First you will need to decide if the property you and your spouse own is marital property (owned by both of you as marriage partners) or does the property belong to you or your spouse alone.
"The question of what is “marital” property and what is not comes up only in the context of a marriage and then is important primarily when the marriage is being dissolved. The concept is different from who owns it, possesses it or uses it" Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1,3 (1990).
Marital Property
Separate Property
Both Marital and Separate Property
Making A Claim for Property Division
Detailed Checklist to Help You Inventory the Property
Marital Property – With a few important exceptions, all the property that was acquired by you or your spouse (or both of you) during the marriage is considered marital property. Marital property normally includes such things as houses, cars, furniture, appliances, stocks, bonds, jewelry, bank accounts, pensions, retirement plans and IRA’s. It generally does not include the value of professional degrees/licenses.
What if we were separated? The phrase “during your marriage” refers to the period from the date of the marriage until the date the marriage is dissolved or death. Separated spouses can still acquire marital property. For example, lottery winnings that resulted from a win on a ticket purchased two years after the parties separated (but before they divorced) were considered marital property.
“Marital property is to be determined and valued as of the date of divorce, not the date of separation” Cotter v. Cotter, 58 Md. App. 529, 473 A.2d 970, 974 (1984).
Separate Property - The following are NOT marital property even if they were acquired during your marriage.
Anything that:
Both Marital and Non-Marital Property - Some assets can be both marital and non-marital property. A house that was purchased before the marriage is not marital property. However, when you and/or your spouse use marital funds to pay the mortgage, the house then becomes part marital and part non-marital.
Real property that is held by “tenants by the entireties” is considered marital property unless you have a valid agreement to exclude it. MD. Code Ann. Fam. Law § 8-201(e)(2)
Property acquired by the two of you during a period you lived together before marriage is not considered marital property.
Making a Claim for Property Division
If you and your ex-spouse cannot agree on how to divide your property, the court will decide what is marital property and how much that property is worth. The court will also look at any marital debts when determining the value of the marital property.
The court will then determine each spouse’s share of the property. The court will use a variety of factors (see below) to decide the relative value of each spouse’s share of the marital property. Under the Maryland Marital Property Act, the court can consider both the monetary and non-monetary contributions of each spouse to the marriage. Non-monetary contributions can include childcare, meal preparation, maintaining the home, etc..
The court can not transfer property titled in one spouse's name to the other. Instead, the court will give the spouse without title a monetary award to cover their share of the property.
If the property cannot be divided (such as a house), the court will decide on a value.
One person can “buy out” the other person as long as both parties agree too
it. Otherwise the asset may be sold and the funds divided. In Maryland the court does not decide what to do about the marital assets to be divided.
Detailed Checklist to Help You Inventory the Property
No matter how straight forward you think your situation is, take a few minutes to
inventory your property. This is an essential first step. As one experienced Maryland marital attorney notes, "Until you write down what you both have, you are not ready to decide if you have a property issue".
If you decide to work things out with your spouse yourself, this will help you to make sure that you know what is at stake. The
information is important to have I your mind as you take the Property Quiz.
If you decide to go to an attorney for advice or for representation, this document will save you
time and money. It may take some time to fully list all of your assets but it will help
your attorney to assess your situation more quickly. Why pay an attorney to organize
your records? Why not spend your money on the unique skills an attorney will bring to the case - his/her legal analysis? The attorney will also be able to fill in any gaps in what
you have collected and can use certain legal tools (generally called the "discovery process") to uncover otherwise
hidden information.
This Checklist, is in a special format
which requires a software called Adobe Reader" to be able to open the file. If
You do not have Adobe, you can get the program for free. The software is
available from the Adobe website http://www.adobe.com.
(The basic reader is available without cost. Just wade through the ads.)
Warning for the impatient It will take some time to download the Adobe Acrobat
program and you will need to restart your computer before using it.
The factors the court will consider when making a decision about property are the basis for the quiz below.
There is more information about these specific factors and more information on property from the Women's Law Center.
RETURN TO DIAGNOSING YOUR DIVORCE
This is 1 of 3 quizzes to help you decide if and when you should represent yourself in your divorce. Take all three for a complete assessment.
Once you pick an answer that applies to you, you will receive more information and an analysis. Don't worry, you can always change your answer! At the end of the Quiz, you will see your score and you can print out your results.
As you answer each question a window will pop up with a red, yellow, or green light.
 | Red Light--You should consult an attorney for representation. |
| Yellow Light--Use caution representing yourself. It will be important to consult an attorney (at least for advice. | |
| Green Light--Proceed on your own. |
At this point you may have a rough idea about whether you might want to pursue a claim for alimony and or property.
Need help finding a lawyer in Maryland?
If it appears that you may have a claim and you plan to speak to an attorney, gather your records, download this checklist, and fill in the details of your income and property. To download a free viewer for the checklist, visit the Adobe website.
It will take some time to complete the list but it will help your attorney make an assessment more quickly. Why pay an attorney to organize your records? This will save you time and money. The best use of your attorney's time will be to analyze what you have collected and to help fill in any gaps you may have left. You can also use the same process to prepare to negotiate with your spouse.
RETURN TO DIAGNOSING YOUR DIVORCE
Practical Tips on How to Divide the Furniture Fairly and Equitably
This advice is from M. Sue Talia, a California attorney with over 20 years of experience who has written a candid, funny, and very useful book called, "How to Avoid the Divorce from Hell".
"Furnishing a household is an expensive business. It’s a rare family that has enough of everything to comfortably supply two. Moreover, at a time when your entire life is disrupted, no one should have to go home to a bare apartment and eat off a card table. It simply isn’t right. So here are some very practical suggestions about ways you can solve this problem:
Inventory the house jointly with your spouse - Each household consists of a mixture of practical necessities (washer, refrigerator, etc.), sentimental items and valuable pieces (stereo equipment and antiques). For this method, inventory the house with you spouse (I don’t mean that you each have to march from room to room with a clipboard in your hands). One of you should inventory the house and the other should have an opportunity to check the inventory to make sure it is complete and accurate.) Then flip a coin to determine which one of you is going to divide the single list into two lists of approximately equal value. It really doesn’t matter who prepares the list. Call one "List A" and the other "List B." Then it’s the other party’s choice as to which list he wants. This is an excellent method for ensuring that the practical, sentimental and valuable items will be fairly equally sprinkled between the two lists. It avoids the necessity of having to hire appraisers and generally works quite simply. The person making the lists usually "loads" one to be more attractive to the other side. However, he can’t afford to load it too much or he’ll end up with the short straw. In my experience, once a selection of "A" or "B" is made, there is some horse-trading back and forth and everyone goes away relatively satisfied that it was fair."
"If you can afford it, duplicate the necessities at community expense - Purchase another refrigerator, another washer/dryer, another set of dishes, towels, etc. You then trade off; one of you gets the new toaster, one of you gets the old one. You reverse it for the blenders. This way, each party has the dignity of a fully furnished household (or relatively so) and you avoid the nasty tug of war that frequently ensues in furniture divisions. This method is a must for the division of records and CDs that you both love, favorite books, etc."
"For Heaven’s sake, the kids’ furniture goes with the kids - It is not valued or divided. In fact, it is my belief that for the sake of the children, the community should purchase kids’ furniture for use at the visiting parent’s home. This is not done as a favor to your ex-spouse. It is done to ensure that your children have a safe, comfortable and nurturing home at both residences. Children should not have to sleep on cots when visiting their parents. Divorce is stressful enough for them without uncomfortable and unsafe physical surroundings.”
RETURN TO DIAGNOSING YOUR DIVORCE
| Is this legal advice?
This site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However we do not provide legal advice - the application of the law to your individual circumstances. For legal advice, you should consult an attorney. See our section on Finding Legal Help.
About this website. The Maryland State Law Library sponsors this state. The website was developed (1999-2007) as part of an access to justice initiative by the Maryland Legal Assistance Network (MLAN) in collaboration with a number of legal services providers serving low and moderate income Marylanders. In the absence of file-specific attribution or copyright, the Maryland State Law Library holds the copyright (all rights reserved) subject to the following exception. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: People’s Law Library of Maryland – www.peoples-law.org © Maryland State law Library 2007.” |
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