| FREQUENTLY ASKED QUESTIONS Marital Property |
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| Meiselman & Helfant, LLC 29 Wood Lane Rockville, Maryland 20850 301-279-8840 Fax 301-279-9630 E-mail: info@mdfamlaw.com |
NOTICE: None of these questions and answers constitute legal
advice. To obtain legal advice, consult with an attorney. This is
especially important in divorce and family law matters, in which
outcomes are often peculiar to the particular facts and
circumstances of the case.
Q. Can one spouse be forced to pay the debts of the other?
Can one spouse be forced to pay joint debts of the parties?
A. A court may 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 pay the interest on joint
promissory notes. However, if one parent gets use and possession
of a house or car, for example, the other parent can be forced to
contribute to the mortgage or car payment.
Q. Is Maryland a "community property" state?
A. No. Maryland is not a "community property" state. Maryland has
an "equitable distribution" statute. Labels are not important. Read
more FAQs to find out how Maryland courts handle property.
Q. Is each spouse entitled to half of their property?
A. Equal division is not required, although that is the outcome in
many cases.
Q. What is "marital property"?
A. Marital property is: (a) Real property held as tenants by the
entirety, unless excluded by valid agreement. (b) Any property
acquired by 1 or both parties during marriage, and does not include
any property (1) acquired before the marriage, (2) acquired by
inheritance or gift from a third party, (3) excluded by valid
agreement, or (4) directly traceable to any of these sources.
Q. What does "acquired" mean?
A. Maryland courts have defined the term "acquired" as the ongoing
process of making payment for property. Under this definition,
characterization of property as nonmarital or marital depends upon
the source of each contribution as payments are made, rather than
the time at which legal or equitable title to or possession of the
property is obtained. So, for example, a house that had been
acquired by one spouse, subject to a mortgage, prior to a marriage,
is initially wholly nonmarital property; as mortgage payments are
made out of marital funds during the marriage, the property
becomes partially marital.
Q. What does "directly traceable" mean?
A. "Directly traceable" is not synonymous with "attributable." When
marital and nonmarital funds are commingled, no specific sum of
money used to acquire property or reduce an indebtedness on any
property can be directly traced to any source. This inability to trace
property acquired during the marriage directly to a nonmarital
source simply means that all property so acquired is marital
property.
Q. Do hidden assets or wasted assets count?
A. Dissipation may be found where one spouse uses marital
property for his or her own benefit for a purpose unrelated to the
marriage at a time where the marriage is undergoing an
irreconcilable breakdown. When a court finds that property was
dissipated to the point of being a fraud on marital rights, it should
consider the dissipated property as extant to be valued with other
existing marital property.
Q. Does title ownership affect whether property is marital
property?
A. Characterization as marital or nonmarital property disregards
title, except real property held as tenants by the entirety, which is
deemed marital. The court may order the sale of jointly titled real or
personal property, and division of the proceeds. But the court
cannot transfer title ownership of property, except for pension,
retirement, profit sharing or deferred compensation.
Q. What is a "monetary award"?
A. A monetary award 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 spouse so that what each
takes from the marriage is fair under all the circumstances of the
case.
Q. How does a court make a monetary award?
A. Maryland courts apply a 3-step process: (1) Determine what
property is marital property. (2) Determine the value of all marital
property. (3) Make a monetary award as an adjustment of the
equities and rights of the parties.
Q. Is there a formula for making a monetary award or
dividing property?
A. No.
Q. What factors does a court consider in making a monetary
award?
A. Here is a list of some of the factors:
(1) contributions, both monetary and non-monetary, of each party
to the well-being of the family
(2) the value of all property interests of each party
(3) economic circumstances of each party at time of award
(4) circumstances that contributed to estrangement of parties
(5) duration of marriage
(6) age of each party
(7) physical and mental condition of each party
(8) how and when specific assets acquired, and efforts expended by
each in accumulating marital property
(9) alimony award and use
and possession award
(10) nonmarital contribution to real property held as tenants by the
entirety
(11) any other factor deemed necessary or appropriate.
Q. What is the relationship between alimony and a monetary
award?
A. Maryland courts have said that alimony and a monetary award are
"significantly interrelated and largely inseparable," but that a
monetary award is not a "form of nor substitute for" alimony. In
other words, the court must consider the two issues together in
order to achieve a fair result.
Q. What happens to nonmarital property?
A. Nothing, usually. The owner of nonmarital 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, including any
nonmarital property. 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.
Q. What is a marital debt?
A. A "marital debt" is a debt which is directly traceable to the
acquisition of marital property.
Q. Can one spouse be awarded the exclusive right to
temporary use and possession of property?
A. 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 party
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.
Q. How long can a use and possession award last?
A. Use and possession must terminate no later than 3 years after a
divorce is granted.
Q. Can a use and possession award include an order to pay
expenses?
A. 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 (3)
maintenance and other expenses of property.
advice. To obtain legal advice, consult with an attorney. This is
especially important in divorce and family law matters, in which
outcomes are often peculiar to the particular facts and
circumstances of the case.
Q. Can one spouse be forced to pay the debts of the other?
Can one spouse be forced to pay joint debts of the parties?
A. A court may 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 pay the interest on joint
promissory notes. However, if one parent gets use and possession
of a house or car, for example, the other parent can be forced to
contribute to the mortgage or car payment.
Q. Is Maryland a "community property" state?
A. No. Maryland is not a "community property" state. Maryland has
an "equitable distribution" statute. Labels are not important. Read
more FAQs to find out how Maryland courts handle property.
Q. Is each spouse entitled to half of their property?
A. Equal division is not required, although that is the outcome in
many cases.
Q. What is "marital property"?
A. Marital property is: (a) Real property held as tenants by the
entirety, unless excluded by valid agreement. (b) Any property
acquired by 1 or both parties during marriage, and does not include
any property (1) acquired before the marriage, (2) acquired by
inheritance or gift from a third party, (3) excluded by valid
agreement, or (4) directly traceable to any of these sources.
Q. What does "acquired" mean?
A. Maryland courts have defined the term "acquired" as the ongoing
process of making payment for property. Under this definition,
characterization of property as nonmarital or marital depends upon
the source of each contribution as payments are made, rather than
the time at which legal or equitable title to or possession of the
property is obtained. So, for example, a house that had been
acquired by one spouse, subject to a mortgage, prior to a marriage,
is initially wholly nonmarital property; as mortgage payments are
made out of marital funds during the marriage, the property
becomes partially marital.
Q. What does "directly traceable" mean?
A. "Directly traceable" is not synonymous with "attributable." When
marital and nonmarital funds are commingled, no specific sum of
money used to acquire property or reduce an indebtedness on any
property can be directly traced to any source. This inability to trace
property acquired during the marriage directly to a nonmarital
source simply means that all property so acquired is marital
property.
Q. Do hidden assets or wasted assets count?
A. Dissipation may be found where one spouse uses marital
property for his or her own benefit for a purpose unrelated to the
marriage at a time where the marriage is undergoing an
irreconcilable breakdown. When a court finds that property was
dissipated to the point of being a fraud on marital rights, it should
consider the dissipated property as extant to be valued with other
existing marital property.
Q. Does title ownership affect whether property is marital
property?
A. Characterization as marital or nonmarital property disregards
title, except real property held as tenants by the entirety, which is
deemed marital. The court may order the sale of jointly titled real or
personal property, and division of the proceeds. But the court
cannot transfer title ownership of property, except for pension,
retirement, profit sharing or deferred compensation.
Q. What is a "monetary award"?
A. A monetary award 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 spouse so that what each
takes from the marriage is fair under all the circumstances of the
case.
Q. How does a court make a monetary award?
A. Maryland courts apply a 3-step process: (1) Determine what
property is marital property. (2) Determine the value of all marital
property. (3) Make a monetary award as an adjustment of the
equities and rights of the parties.
Q. Is there a formula for making a monetary award or
dividing property?
A. No.
Q. What factors does a court consider in making a monetary
award?
A. Here is a list of some of the factors:
(1) contributions, both monetary and non-monetary, of each party
to the well-being of the family
(2) the value of all property interests of each party
(3) economic circumstances of each party at time of award
(4) circumstances that contributed to estrangement of parties
(5) duration of marriage
(6) age of each party
(7) physical and mental condition of each party
(8) how and when specific assets acquired, and efforts expended by
each in accumulating marital property
(9) alimony award and use
and possession award
(10) nonmarital contribution to real property held as tenants by the
entirety
(11) any other factor deemed necessary or appropriate.
Q. What is the relationship between alimony and a monetary
award?
A. Maryland courts have said that alimony and a monetary award are
"significantly interrelated and largely inseparable," but that a
monetary award is not a "form of nor substitute for" alimony. In
other words, the court must consider the two issues together in
order to achieve a fair result.
Q. What happens to nonmarital property?
A. Nothing, usually. The owner of nonmarital 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, including any
nonmarital property. 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.
Q. What is a marital debt?
A. A "marital debt" is a debt which is directly traceable to the
acquisition of marital property.
Q. Can one spouse be awarded the exclusive right to
temporary use and possession of property?
A. 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 party
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.
Q. How long can a use and possession award last?
A. Use and possession must terminate no later than 3 years after a
divorce is granted.
Q. Can a use and possession award include an order to pay
expenses?
A. 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 (3)
maintenance and other expenses of property.
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| Contact Meiselman & Helfant, LLC Today Call 301-279-8840 |
| Meiselman & Helfant, LLC |
29 Wood Lane, Rockville, Maryland 20850
| Call 301-279-8840 |
| Serving Bethesda, Chevy Chase, Gaithersburg, Germantown, Kensington, Potomac, Rockville, Silver Spring, Wheaton, Montgomery County, Prince George's County, Frederick County, and Howard County. |
