Divorce court decides what is marital property


Q: What are a spouse's legal rights in Maryland regarding jointly owned or individually owned real estate in the event of a marital breakup or divorce?

Arlena Gakuba, Owings Mills

A: Under Maryland law prior to 1978, at the end of a marriage, legal title was the only factor in disposing of real estate. For example, legal title in a home required that it be distributed to the title holder when the divorce decree was finalized. Even though a spouse may have contributed to the purchase, improvement or maintenance of the parties' marital home, if legal title was vested in the other spouse, the home would be distributed to that spouse.

But the law was changed in 1978 when the Maryland Marital Property Act was enacted. Today, all property acquired after the formation of a marriage is now "marital property" with each spouse maintaining an interest. The only exception is real estate that is not the primary residence acquired before the marriage by a spouse individually, or property acquired by gift or inheritance during the marriage, or property excluded from marital property by pre-nuptial agreement.

Upon a divorce, unless the property is voluntarily divided by the parties by virtue of a separation agreement, a court is forced to dispose of marital property based on specific criteria.

First, the court determines what is marital property and who holds title to it.

Second, the value of all the property interests of each spouse must be determined. The court will consider each spouse's contributions toward acquiring the property. These contributions can be monetary or nonmonetary. For example, homemaking contributions will be considered.

Third, the court will order, in general, marital property distributed in certain percentages, and the couple must divide the property based on the court's judgment. Often, however, a divorce is so acrimonious that the couple is unable or unwilling to divide the property by means of a separation agreement. The court is then forced to order the property sold by a trustee, with the proceeds divided between the parties.

But the same case before different courts may yield different results because portions of the law are unclear.

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