Seven Common Myths About Property Division In Maryland
By Amar S. Weisman, Esquire
Myth #1: Courts split marital property 50-50.
In Maryland, courts have a great deal of discretion in how to divide almost all marital property based on the evidence that the attorneys present to the court. Although divorcing couples may choose to divide their marital property equally, the Judge can split the property unequally.The law requires the court to evaluate the totality of the circumstances and divide property based on principles of fairness and equity. That means it matters why the divorce is happening, the contributions of each party to the marriage, and whether one spouse needs more money because his or her earning potential is relatively limited.
Myth #2: The Person Who “Earned” Most of the Money Keeps It.
When a couple is married without an antenuptual agreement, all property acquired during the marriage is marital property, no matter who earned the money or how it happens to be titled. A spouse is not entitled to the money simply because s/he earned it. When dividing marital property, the Judge will consider the monetary contributions to the marriage as well as non-monetary contributions, how much alimony is awarded, why the marriage fell apart, the future earning potential of each spouse, the duration of the marriage, and many other factors.
Myth #3: Title Decides What is Marital Property.
Title does not determine what is marital property. Marital property is all property, however titled, that is acquired during the marriage, with limited exceptions, like property that is given to one spouse through inheritance and is not commingled. Nor does title determine marital debt, which is all debt incurred in order to acquire marital property.
Myth #4: Businesses Are Not Marital Property.
Business interests, including partnerships,are marital property and part of the “pot” that is divided during the divorce process. During the discovery process, both parties have a right to acquire financial information about the other spouse’s businesses. In addition to businesses, one spouse’s “professional goodwill” may also be marital property.
Myth #5: The Marital Home Will Be Sold Unless the Parties Agree Who Gets It.
Until recently, Judges did not have the power to transfer a home that was titled in the name of both spouses to just one spouse. That meant if the parties could not agree who kept the house, then the marital home was sold, and usually the proceeds were split. Now, Judges do have the power to transfer ownership to just one spouse during the divorce proceedings.
Myth #6: Retirement Accounts Cannot Be Divided During the Divorce Process.
Retirement accountsare marital property because marital property is all property acquired during the marriage, no matter how it is titled. Federal law allows for pension funds to be split using a Qualified Domestic Relations Order (QDRO).
Myth #7: Property Acquired During Separation Is Not Part of the “Pot.”
The marriage ends when the Court issues a “final” divorce judgment, not when the parties separate. Marital property includes almost all property acquired during the marriage, including property acquired during the separation (unless this issue is directly addressed in a separation agreement that both parties sign).
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