Maryland Marital Property FAQs

In a Maryland divorce, judges don't always divide marital property right down the middle using a 50/50 split. Because Maryland is an equitable distribution state, the divorce court will divide property fairly between the spouses, but not always equally.

This article answers some common questions about Maryland property division in divorce. For all of our articles on Maryland divorce law, see our Maryland Divorce and Family Law page.

Is Maryland a "Community Property" State?

No. Maryland is not a "community property" state. Instead, Maryland has an "equitable distribution" statute—meaning, the court is not necessarily obligated to divide the property equally between the spouses, but will divide property in a way the court finds is fair. In many cases, however, each spouse gets half of the marital property.

What Is Marital Property?

Marital property includes assets that belong to the marriage —to both spouses—rather than to one spouse or the other as separate property. Marital property includes real property (such as a home or land) that the spouses own as tenants by the entirety unless the spouses have a valid written agreement to the contrary.

Marital property also includes any property either or both spouses acquired during the marriage. However, a court may exclude property from the "marital" category if one spouse acquired the property by gift or inheritance from a third party, or if the spouses have a valid agreement stating that the property is nonmarital.

Property that either spouse acquired before the marriage is also considered the separate property of that spouse. And, any property that is directly traceable to a separate property source remains separate property. For example, if one spouse owned a car before the couple married, then sold the car during the marriage to buy a pool table, the pool table would remain that spouse's separate property. (Md. Code Ann. Fam. Law § 8-201 (e).)

When Is Property "Acquired"?

For property that isn't purchased all at once, Maryland courts have defined the term "acquired" as the ongoing process of making payments on the property. Under this definition, whether the property is nonmarital or marital depends on the source of each payment.

So, for example, a house that one spouse bought prior to marriage and was paying the mortgage on would start entirely as nonmarital property.

However, as the spouses make mortgage payments using marital funds during the marriage, the property becomes partially marital. (Md. Code Ann. Fam. Law § 8-205 (8).)

What Happens If One Spouse Wastes Marital Property?

Dissipation—the legal term for waste—happens when one spouse uses marital property for a reason unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.

For example, if one spouse used marital funds to pay for a lavish vacation with a boyfriend or girlfriend during the marriage, the court will reconcile that spending in the property award.

If the court finds that one spouse's dissipation of assets was serious enough to constitute fraud, it should consider the dissipated property as if it still existed when dividing the marital property. The purpose of this rule is to discourage either spouse from wasting marital assets.

Does Title Ownership Affect Whether Property Is Marital Property?

The title papers alone don't determine whether property is marital property or nonmarital property, except that real property the spouses own as tenants by the entirety is considered marital. (Md. Code Ann. Fam. Law § 8-201 (e)(2).)

The court may order the sale of jointly titled real or personal property and divide the proceeds. But the court cannot transfer title ownership of property, except for pension, retirement, profit-sharing, or deferred compensation. (Md. Code Ann. Fam. Law §8-205 (2).)

What Is a "Monetary Award"?

A monetary award is a court order for one spouse to pay money to the other. A court might order a monetary award to make sure that what each spouse takes from the marriage is fair under all the circumstances of the case. For example, if the court awards one spouse the family home might have to pay money to the other, especially if the home represents a large chunk of the couple's marital assets. (Md. Code Ann. Fam. Law § 8-205 (c).)

Is There a Formula for Making a Monetary Award or Dividing Property?

No. The court considers several factors in deciding how to divide the property and whether to make a monetary award. Those factors include:

• what each spouse contributed, both financially and otherwise, to the well-being of the family
• the economic circumstances of each spouse
• how long the marriage lasted
• the age, health, and physical and mental condition of each spouse
• how and when specific assets were acquired
• whether either spouse contributed separate property to property the couple owns as tenants by the entirety
• whether the court awarded either spouse alimony or possession of the family home, and
• any other factor that the court considers necessary to create a fair and equitable award. (Md. Code Ann. Fam. Law 8-205 (b).)

What Is the Relationship Between Alimony and a Monetary Award?

Maryland courts have said that alimony and a monetary award are "significantly interrelated and largely inseparable." A monetary award is not a substitute for alimony, but the court must consider the two together to achieve a fair result.

What Happens to Nonmarital Property in a Divorce?

Nothing, usually. The spouse who owns the nonmarital—or separate property—keeps it. However, in considering a monetary award, and in deciding on alimony, a Maryland court must consider all of the financial circumstances and resources of each of the parties, which includes any nonmarital property.

If the court orders one spouse to pay a monetary award, nothing prohibits the other spouse from trying to collect it by going after nonmarital property.

What Is a Marital Debt?

Marital debt is a debt that is directly traceable to the acquisition of marital property. For example, if a married couple purchases a home together and makes the down payment and mortgage payments from a joint bank account, the mortgage is a marital debt. The court must divide marital debt in the same equitable manner as marital property.

How Are Debts Divided?

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

It's important to understand that even if the court orders one spouse to pay the other's debt, a court order does not change the agreement the liable spouse created with the lender. For example, if you and your spouse own a joint Home Depot credit card and the judge orders your spouse to pay it in full, but fails to pay, the creditor can (and will) pursue you for the total amount due. Once you pay, you can file a motion in court asking the judge to order your spouse to pay you back.

Can the Court Award one Spouse the Exclusive Right to Temporary Use and Possession of Property?

A judge may award a spouse with custody of the couple's minor child the use and possession of a family home, car, furniture, furnishings, and home appliances. When the judge awards possession, the court refers to it as a use and possession award.

In making this type of award, the court considers:

• the best interests of the child
• the interests of each party in the 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 (that is, the parent who doesn't get possession). (Md. Code Ann. Fam. Law § 8-208.)

How Long Can a Use and Possession Award Last?

Use and possession must terminate no later than three years after the court finalizes the divorce. (Md. Code Ann. Fam. Law § 8-210.)

Can a Use and Possession Award Include an Order to Pay Expenses?

Yes. The court can allocate financial responsibilities for property that is the subject of a use and possession award, such as mortgage or rent, payment of other debt on the property, and maintenance and other expenses of owning the property. (Md. Code Ann. Fam. Law § 8-208 (d).)

Filing for divorce can be overwhelming, as can the divorce process itself. For more information or help working through the legal process, contact an experienced family law attorney in your area.