How is Marital Property Defined in Maryland?

Under Maryland law, “Marital Property” means the property, however titled, acquired by one or both parties during the marriage and includes any interest in real property held by the parties as tenants by the entirety unless such real property is excluded by valid agreement.  In addition to real property, Marital Property also includes other property acquired during the marriage, such as pensions and other retirement benefits, 401k and other deferred compensation plans, cars, and furnishings.

In Maryland, Marital Property DOES NOT include property (1) acquired before marriage; (2) acquired by inheritance or gift from a third party; (3) excluded by valid agreement; or (4) property that is directly traceable to any of these sources. However, comingling of non-marital property with marital property can destroy the non-marital character of the property.   

When considering how Marital Property should be distributed between the parties, the court considers many factors in deciding the character of property acquired during the marriage; among them, the monetary and nonmonetary contributions made by each of the parties, what circumstances contributed to the breakup of the marriage, the age and mental condition of each party, how and when marital property was acquired, including the contributions made to the property during marriage, and other factors, including potential tax consequences resulting from distribution to each of the parties.

In Maryland, after the court determines which property is Marital Property and the value of the Marital Property, it has the authority to transfer an interest in the property, grant a monetary award, or both, as an adjustment of the equities and rights of the parties. Even if the distribution of Marital Property is settled by agreement between the parties, the court may consider such distribution in making a monetary award.

The laws in Maryland governing distribution and valuation of Marital Property are complex. It is therefore very important to seek the advice of an attorney experienced in marital property distribution before you agree to or otherwise decide upon the distribution of any property acquired during the marriage.

My Spouse’s Name is on the Deed but not on the Mortgage…

Joe loves Annie so much that, after their marriage, he added Annie’s name to the deed of the home he purchased before the marriage.  They deed is now titled as Tenants by the Entireties (“T/E”).  Joe saw no need to put Annie’s name on the mortgage since he planned to pay the mortgage and other expenses on the home, as he had always done.  After five years of marriage (and mostly un-wedded bliss), Joe and Annie decide to go their separate ways and Joe now wants to file for divorce.  Joe remains in the marital home after he and Annie separate and thinks it only proper for Annie to help pay the mortgage and upkeep on the home.  Joe consults with a Family Law and Divorce Attorney only to find out that not only is Annie not responsible to the mortgage lender BUT that she may also be granted a monetary award for her marital interest in the home.

A home titled as T/E is considered Marital Property and is therefore subject to equitable distribution under the laws of Maryland.  Although your spouse may not be obligated under the mortgage note, he or she still has a marital interest in the marital home. Under certain circumstances the court can grant to either party a monetary award for the value in the marital home, after deduction of the outstanding mortgage, to adjust the equities of each of the parties in a divorce action.

Even if one spouse decides to stay in the home after the divorce, once the court grants a divorce, the T/E ownership interest is severed and reverts to the title of Tenants in Common. Either party can then institute an action to force a judicial sale of the property, since both names are still on the deed.  There is generally no defense to such an action.  However, if both names are NOT on the mortgage, the lender will look only to the obligor spouse for payment of the mortgage.  In addition, if a money judgment is granted to a creditor against either party, the creditor can force a sale of the home, even if the court does not, as it is no longer titled as T/E.

An experienced Family Law and Divorce Attorney will be able to work out the details of your case with you and help you decide how to proceed.

How is Alimony Determined in Maryland?

Alimony, also known as spousal support or spousal maintenance, is a payment or series of payments made by one spouse (or former spouse) to the other as a continuation of the responsibilities of marriage.  Except in limited circumstances, alimony is not to be considered a lifetime benefit.   The ultimate goals of awarding alimony are to balance any unfairness in the parties' future earning capacities and ease the financial transition into single life.

There are three types of alimony provided for under Maryland law.  The first is known as pendente lite alimony, also known as temporary alimony. The primary consideration for this type of award of alimony is based on the reasonable needs of the recipient spouse, balanced against the other spouse’s ability to pay.  It is awarded for limited period of time, pending a full consideration of alimony in a divorce hearing. The second type of alimony is known as rehabilitative alimony and is intended to assist the dependent spouse in becoming self-supporting.  When the dependent spouse becomes self supporting, the rehabilitative alimony ceases.  The court will consider, at a minimum, a number of factors under Maryland’s alimony statutes to decide whether alimony should be awarded, the amount of the award and the length of time for which it is to be awarded.  Recently, the Court of Appeals held that a court may also consult guidelines from other reliable and neutral sources to fashion an alimony award, as long as those guidelines do not conflict with or undermine the factors and considerations under Maryland’s  statutes, Boemio v. Boemio, 414 Md 118 (2009).  The third type of alimony is known as indefinite alimony. It may be awarded in those circumstances where, due to age, infirmity or disability, the dependent spouse cannot reasonably be expected to make substantial progress toward becoming self-supporting or, even when the dependent spouse has made progress, the respective standards of living between the parties are still grossly disproportionate. An award of indefinite alimony is the exception rather than the rule.

Many people are under the mistaken impression that alimony will always be awarded in every divorce action.  Alimony is not calculated like child support, using a formula. The court has broad discretion to decide whether alimony will be awarded, after fully considering the facts of each case and the financial circumstances and resources of each of the parties.

If you have questions relating to alimony or any other issues related to divorce, contact an experienced Maryland Divorce and Alimony Lawyer to determine your rights  and obligations.

Adultery Past...

There are several grounds upon which a Maryland Court may grant an absolute divorce; namely, adultery, voluntary separation, desertion for a period of 12 months, conviction of a felony or misdemeanor, 2-year separation, insanity, cruelty of treatment and excessively vicious conduct.  Each of these grounds must be proven in accordance with the elements defined within the Maryland statutes.

As a Maryland Divorce Attorney practicing in Montgomery County, Howard County and Prince George's County, Maryland, I’ve received many inquiries from one spouse or the other asking whether a divorce may be obtained in the grounds of past adultery.  Even thought the innocent person forgave his or her spouse for the first (and may even second) instance of adultery, the offfending spouse has continued the adulterous behavior or is committing some other act or behavior against the innocent spouse that now warrants an end to the marriage. It raises the interesting question of whether you can still file for divorce on the ground of adultery even though you forgave your spouse for his or her past indiscretions.  The answer is a conditional yes and deserves further explanation.

In Maryland, the fancy term used for forgiveness by one spouse of the other’s past misconduct is called Condonation.  It comes up most often when adultery is alleged and can be used as a defense to a charge of adultery.  It is important to note, however, that condonation is defined by Maryland case law as “…forgiveness with an implied condition that the marital offenses shall not be repeated and that the party offended shall be treated with conjugal kindness and on breach of this condition, the right to remedy for former injuries revives.” Cullotta, 193 Md. at 383.

Generally, if you knew (and could have proven) your spouse committed adultery but continued to live and cohabit with him or her, adultery cannot be used as a ground. However, if your spouse starts having affairs again or, if your spouse has had several affairs and you knew of and condoned only one, you can then sue on grounds of adultery.

In short, condonation is not an absolute bar to a divorce on the ground of adultery in Maryland.