Property Division

Common Questions on Property Division

What does “community property” mean?

Maryland is not a community property state. In states that have community property law, each spouse has a half interest in most property acquired during the marriage. The court can then use its discretion in regards to the distribution of marital assets. Maryland instead has an “equitable distribution statute”, which means that the court is not obligated to equally divide property between spouses. In most cases, though, each spouse is awarded half of the marital property.

How are the values of property determined?

The value of some assets like bank accounts are usually not disputed. However, the value of other assets such as homes, personal property or pensions are most likely to be disputed if your case proceeds to trial. Your spouse may also have certain property appraised by an expert. In some cases, it may be necessary to have an appraiser appear at trial to give testimony regarding the appraisal and the value of the asset.

What happens to non-marital property?

Nothing, usually. The owner keeps it. However, in considering a monetary award, if a judgment is entered against someone for a monetary award, nothing prohibits the party entitled to the judgment from going after nonmarital property to collect it.

What is marital debt and can one spouse be forced to pay the debts of the other or joint debts of the parties?

Debt which is directly traceable to the acquisition of marital property.

A court will not require one spouse to pay the sole obligation of the other, or to satisfy joint obligations of the parties such as mortgages and taxes on real property, or interest on joint promissory notes. However, if one parent gets use and possession of a house or car, for example, the other parent may be forced to contribute to the mortgage or car payment.

What happens if both spouses want to keep the family home?

The courts first determine who will retain exclusive use and possession of the family home in order to keep children in a stable environment. A court may award temporary possession of the family home during litigation and then use and possession for up to three years following the divorce. A court may also order the transfer of a home to one of the parties or even order it be sold.

What is a “monetary award” and is there a formula?

It is an adjustment of the equities and rights of the parties concerning marital property. In other words, it is what a court orders one spouse to pay the other so that what each takes from the marriage is fair under all the circumstances of the case. There is no formula for making a monetary award or dividing property.

What factors does a court consider in making a monetary award?

• Contributions, both monetary and non-monetary, of each party to the well-being of the family
• The value of all property interests of each party
• Economic circumstances of each party at the time of award
• Circumstances that contributed to estrangement of the parties
• Duration of the marriage
• Age of each party
• Physical and mental condition of each party
• How and when specific assets were acquired, and efforts expended by each in accumulating marital property
• Alimony award and “use and possession” award
• Nonmarital contributions to real property held as tenants by the entirety
• Any other factor deemed necessary or appropriate

What is a “use and possession” award?

A spouse with custody of a minor child of the parties can be awarded use and possession of a family home, car, furniture, furnishings and home appliances. In making an award, the court considers the best interests of the child, the interests of each of the parents in continued use of the property as a dwelling place or to provide income, and the hardship, if any, on the party whose interest would be infringed. Use and possession must terminate no later than three years after a divorce is granted.

Can a “use and possession” award include an order to pay expenses?

Yes. The court can allocate financial responsibilities over property which is the subject of a use and possession award, including 1) mortgage or rent 2) indebtedness related to property, and 3) maintenance and other expenses.

How can someone be sure to get a fair share of their spouse’s business?

If you or your spouse own a business, it is important that you work with your attorney early in your case to develop a strategy for valuing the business and making your case for how it should be treated in the division of property and debts. Many factors determine whether a client will get a share of a spouse’s business and in what form they might receive it.

Contact the Rockville and Frederick family law attorneys of Fait & DiLima, LLP today to schedule a consultation and discuss your legal needs. Email our firm or call (301) 888-0905. We have offices in Rockville and Frederick; both are conveniently located near the courthouses.