How is Property Divided in Divorce? - The Fundamentals of Who is Awarded What in Maryland

The odds and ends of divorce come down to the property. Complex issues factor into a judge's decision on how to divide property in a divorce:

  • Marital property, defined and explained.
  • Maryland practices equitable distribution, which is different than equal distribution.
  • Factors judges use to figure equitable distribution of property.

What Maryland Considers Marital Property

During a marriage, money is earned, stocks invested, retirement accounts created, children born, assets collected, and properties bought. All in the interest of making a life forever together, but we know this is real life, and that is not always the case. Divorce happens.

However, not all property and assets are marital property. Maryland determines marital property as things obtained during the marriage, regardless of who paid for it. The exception to the rule is inherited or gifted property or is excluded by a contract such as a pre-nup. So, if it was bought during the marriage, it is marital property.

Property collected during a marriage can include bank accounts, real estate, stocks, furniture, cars, pensions, retirement assets like 401k's, and other personal property. What is not marital property is everything obtained before the marriage as long as it is not gifted or titled to the other spouse.

The non-marital property stays in possession of the person who owned it before the marriage. Also included in non-marital assets are the inherited or gifted items from a third party during the marriage.

Some property and assets are both marital and non-marital, like a house bought before marriage, but marital funds are used to pay the mortgage during the relationship. So, now, the home is part marital and part non-marital property.

Property disputes are common in divorce, and when the spouses cannot agree on how to divide everything, the courts do that for them.

In Maryland, it is Equitable, Not Equal Distribution

Maryland courts distribute property in divorce equitably. There is no 50/50 split of the assets like Hollywood has, you believe. It is just a starting point for the property distribution.

The court determines what the marital property is, assigns a property value, and fairly distributes it among the parties. Some property purchased during a marriage may be titled to one spouse, and the court cannot transfer ownership of the title but can assign an equitable monetary award based on the value of the item titled.

Maryland courts divide property between the parties based on each person's contributions to the marriage and their earning ability and needs following divorce. This makes up the state's equitable distribution policy.

Because of the equitable distribution policy and determination of what is marital property, these disputes get complicated. Due to these complex situations, an attorney's advice is crucial to the fairness of the agreement. They make sure no piece of property or assets that is marital property gets "forgotten" about or misused before completing the divorce.

No specific law penalizes or considers financial misconduct or wasting marital assets in property division. Still, an attorney can show a judge how one spouse emptied a savings account so the other couldn't get it. So that can be a factor a judge uses in weighing the division of property.

Equitable Distributions Determining Factors

There are quite a few factors Maryland judges use to decide the equitable division of property. Economic misconduct is a factor that may or may not be used. Factors that most definitely get considered are as follows:

  • Monetary and non-monetary contributions to the well-being of the family

  • Economic circumstances – income and earning ability of each party

  • Value of all property interests

  • Facts and circumstances that lead to the split between the parties

  • Length of the marriage

  • Age and physical and mental conditions of the parties involved

  • How and when the specific marital property was acquired

  • Marital fault – Maryland is an at-fault divorce state, so the fault of one spouse may be used to justify a higher award to the injured spouse.

  • Child custody – who has custody of any children factors into who gets awarded a higher

From these elements, a judge makes a fair decision on which party receives what property. The court will also use the same factors to distribute marital debt fairly among the divorcing parties.

Remember, even if the court makes one spouse pay the other's debt, the order does not change the agreement the liable spouse created with the lender. Meaning, the lender will go after the responsible spouse for repayment, not the spouse making the payments.

Property distribution is a complex issue in divorce. However, it is worth having someone on your side fighting for your interests. Hiring a family attorney who will contest property claims in your best interest is highly advisable. Contact JC Law today for a free initial consultation and learn about how we can help you keep the property that rightfully belongs to you.

Read Your Rights, Subscribe To The JC Law Blog Today!


[CHECKLIST] If you need a family lawyer or domestic legal counsel in Maryland, learn the 8 questions you must ask before retaining.