Topics on this page
- Marital Property and Non-Marital Property
- Part Marital and Part Non-Marital Property
- Property Distribution By Agreement
- Property Division by Court Action
- Title Transfers
- Real Property
- Property Inventory
Marital and Non-Marital Property
With a few important exceptions, “marital property” is all the property that you or your spouse acquired during the time you were married. Marital property also includes most of the property that you or your spouse acquired “individually” during the marriage. Marital property includes things such as your and your spouse’s:
- bank accounts
- retirement plans (including IRAs)
Not all property acquired during a marriage qualifies as marital property. The following are not marital property, even if you or your spouse acquired the property during your marriage:
- A gift to only one of you, from a third party;
- Something that only you or only your spouse inherited;
- Something that you and your spouse agreed would not be marital property, or was bought with money from a gift, an inheritance, or money that you agreed was not marital property.
The phrase “during your marriage” refers to the period from the date of the marriage until the date the marriage is dissolved (usually by divorce or death).
If you and your spouse commingle (put together) non-marital and marital funds (money), anything you buy with the commingled funds is marital property. Commingled funds are no longer “directly traceable” to a non-marital source, so anything bought is marital property.
Read the law: Md. Code, Family Law § 8-201
Property that you or your spouse acquire while you are separated is still considered marital property. However, if two people acquire property while living together before marriage, that property is not marital property.
Part Marital and Part Non-Marital Property
Some assets can be part marital and part non-marital property. For example, a house that was purchased before the marriage is not marital property. However, during the marriage, if you and/or your spouse use marital funds to pay the mortgage, the house then becomes part marital and part non-marital, in proportion to the payments made with marital funds. Learn more about marital and non-marital property.
Real property (such as land or a house) that is held as “tenants by the entirety” is considered marital property unless you and your spouse have a valid agreement to exclude it. “Tenancies” are a legal concept that describes how the owners hold the property and the different benefits and legal rules that result (such as what happens when one owner dies, how the property can be sold, etc.). Learn more about joint ownership of real property.
Read the law: Md. Code, Family Law § 8-201(e)(2)
Property Distribution By Agreement
The parties may agree on the division of any property they hold without the court's assistance.
Property Division by Court Action
If the parties do not agree on the division of property, Maryland's Marital Property Act governs the division. Under the act, all marital property is subject to equitable distribution. If you and your spouse cannot agree on how to divide your property, the court will decide what is marital property and how much that property is worth. When determining the value of the marital property, the court will also look at any marital debts (for example, mortgages and credit cards).
The court will determine each spouse’s share (portion) of the property. To determine how much to award or transfer to each party, the court will consider the following factors:
- how much each party contributed to the well-being of the family (this includes income, but also contributions such as one spouse caring for the married couple’s children, or doing housework and cooking for the family);
- how much each party’s property is worth;
- the economic circumstances of each party at the time the court makes the award;
- why the parties are seeking divorce and how they got there;
- how long the parties were married;
- the age of each party;
- the physical and mental condition of each party;
- how and when the parties acquired specific marital property, including how much effort each party expended to accumulate the marital property;
- how much each party contributed to acquiring the real property (for example, land or a house) held by the parties as tenants by the entirety;
- any award of alimony or other court award about family use of personal property (such as a car), or the family home; and
- any other factor that the court considers necessary or appropriate to arrive at a fair monetary award or property transfer.
Read the law: Md. Code, Family Law § 8-205
Divorce Series: How the Court Divides Jointly-Owned Property from the Maryland Courts
If you have title to something, you own it. “Title” means the legal right to control and get rid of the property. An official document stating who owns the property can also be referred to as a “Title.”
The court cannot transfer marital property titled in one spouse's name to the other. Instead, the court will award money to the spouse who doesn’t have title, to cover their share of the property. 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. Because the stock is titled in his name, the court has no authority to transfer the stock or any portion of it to the wife. However, after considering the factors listed above, it can 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 its payment method are determined after considering each of all of the above listed factors.
The parties may agree and take steps to transfer titled property on their own as part of a marital agreement. This area of the law is very complex. If there are property interests, advice from an attorney is essential.
Read the law: Md. Code, Family Law § 8-205
If the property cannot be divided physically (such as a house), the court will determine a value based on evidence the parties present to the court.
There are several options available for real property. One person can “buy out” the other person, as long as both parties agree. If the parties cannot agree, the court may order that the parties sell the property and divide the proceeds.
Divorce Series: Use and Possession from the Maryland Courts
Make a Detailed List to Help You Inventory the Property
Even if you think your situation is simple, it’s essential to inventory your property. Until you write down all of the property that you and your spouse own, you won’t know what’s at stake or whether you have a potential property issue. A checklist is helpful when listing your property. Making an accurate list of all of your property is especially important if you represent yourself instead of hiring a lawyer.
If you decide to hire a lawyer, having a complete list of all of your property will help your lawyer assess your situation more quickly. In addition to giving you legal advice, a lawyer can help organize your records. A lawyer can also help fill in any gaps in your collected records and use specific legal tools (generally called "discovery") to uncover information from your spouse.