Who gets what? Divorce and Property Division in Maryland

unhappy couple dividing marital property in office of divorce lawyer

How is property split in divorce in Maryland?

Division of assets in a divorce can be a fraught subject for a couple, and can often lead to disputes.

Parties can agree on the division of their property, and if the division seems fair, the divorce court will frequently uphold the agreement. Usually, the best sort of agreement is the one that parties are able to reach on their own through frank and honest negotiation.

If the parties cannot agree on how to divide assets in a divorce, then the divorce court will divide the property equitably under Maryland’s Marital Property Act. In determining the division, the court will consider many factors, including:

  • the length of the marriage;
  • the age, health, and earning capacity of the parties;
  • the value of the marital property, and each spouse’s individual property;
  • how the marital property was acquired, and each spouse’s contribution to the marital property;
  • the economic and non-economic contribution of each spouse to the family household;
  • any award of alimony or support;
  • the circumstances surrounding the divorce filing;
  • any other factor the court deems relevant to the property division.

Marital and Non-Marital Property

As a general rule, all property acquired by a couple, individually or together, during their marriage, is considered “marital property” in Maryland.

Marital property could include any cash in accounts, investment portfolios, household furniture, automobiles or other vehicles, boats, or anything else that a person or a couple might reasonably own. Real estate is a bit  more complicated, and discussed below.

Non-marital property includes property that the parties owned separately before the marriage. Also, the following categories are non-marital property, even if it was obtained during the marriage:

  1. Property that only one spouse inherited;
  2. Property that was a gift to only one spouse;
  3. Property that was purchased with money that was a gift or inheritance of only one spouse;
  4. Property that the couple agreed would not be marital property.

If the non-marital and marital property is commingled, it ceases to be non-marital property and becomes marital property. If the spouses combine bank accounts that were originally non-marital property, the new account becomes marital property.

Some assets are categorized as partly-marital or partly-non-marital.  If one spouse owns a house before the marriage, as non-marital property, and both spouses contribute marital property to its upkeep or mortgage, the property is partly-marital to the extent that marital property was used for its purchase or maintenance.

Real Estate Division in Maryland

Divorce property division in the case of real estate is more complicated. A house, or real estate, can be owned by a single individual, or it can be owned jointly. In Maryland, three kinds of joint property are available: tenancy by the entirety, tenancy in common, or joint tenancy with full rights of survivorship. The type of joint ownership will be specified in the deed transferring the property to the couple.

  • Tenancy by the entirety is a form of joint ownership only available to a married couple in Maryland. Under tenancy by the entirety, the married couple owns an undivided interest in the entire property. If one of the spouses dies, the interest in the property automatically passes to the other without any formal proceeding, and, as a rule, the interest in the property is excluded from the deceased spouse’s estate. The presumption in Maryland is that marital real estate is held as a tenancy by the entirety.
  • Joint tenancy with full rights of survivorship is similar to tenancy by the entirety, but is a form of ownership available to any individuals, not just married couples;
  • Tenancy in common is simply shared ownership of real estate. Two or more individuals own a specific share of a piece of real estate. Two owners might own a half interest, or they might agree to split a property based on their share of a purchase. Tenants in common pass their shares to their heirs through inheritance.

If a married couple divorces, their tenancy by the entirety is converted into a tenancy in common unless they take specific steps to create a joint tenancy with full rights of survivorship. If you are contemplating a divorce in Baltimore City, or Baltimore or Howard Counties, and wish to retain ownership of real estate jointly with an ex-spouse, you should consult a divorce attorney in Towson for an explanation of your options.

Conclusion: How an attorney can help

If you are considering a divorce in or around Baltimore, the law firm of Levin Gann PA can provide you with the counsel of a divorce lawyer in Towson MD. Our attorneys and legal staff are experienced in all aspects of family law and can advise you on the intricacies of property division in divorces, and assist you with your legal needs. Call today for a consultation.