In a divorce proceeding, courts encourage resolution over litigation of the issues, including the division of the family home. Consequently, only where the parties are unable to resolve an issue, the court will do so after a trial.
If necessary, the court will divide the marital assets of the parties at trial. In the state of Maryland, property division is not necessarily done evenly, however, it is done equitably. Of course, the division of marital property includes the family home, often the most valuable asset a married couple owns. In determining division of marital property, a Maryland court follows Maryland statute section 8-205 of the Maryland Family Law code. The statute gives the court broad discretion in determining the award of marital property, including the family home.
Of course, the court must first determine what property is marital property and the value of any marital property. For this statute, Maryland law defines marital property as, “property, however titled, acquired by one or both parties during the marriage.” Maryland Family Law section 8-201(e). That statute goes on to say marital property does not include property, “acquired before the marriage; acquired by inheritance or gift from a third party; excluded by valid agreement; or directly traceable to any of these sources.” Id.
Maryland law allows the court to transfer ownership in various marital property, including the family home. Maryland Family Law section 8-205(a)(1). The statute also allows the court to grant a monetary award to a party, “as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” Id.
Maryland defines the term “family home” as property, “used as the principal residence of the parties when they lived together; is owned or leased by one or both of the parties at the time of the proceeding; and is being used or will be used as a principal residence by one or both of the parties and a child.” Maryland Family Law section 801(c)(1).
Additionally, pursuant to Maryland law, “family home” does not include property “acquired before the marriage; acquired by inheritance or gift from a third party; or excluded by valid agreement.” Maryland Family Law section 801(c)(2). In other words, “the family home,” must meet the definition of marital property.
Method of Division
The court divides the marital interest in the family home pursuant to Maryland Family Law section 8-205(a)(2)(iii), which provides, subject to the terms of any lien, the property shall be divided by:
- ordering the transfer of ownership of the real property or any interest of one of the parties in the real property to the other party if the party to whom the real property is transferred obtains the release of the other party from any lien against the real property;
- authorizing one party to purchase the interest of the other party in the real property, in accordance with the terms and conditions ordered by the court; or
Id. This statute allows the court broad discretion when determining the method for the award of the family home.
What Factors Does the Court Apply to Determine a Monetary Award or the Transfer of Interest in the Family Home?
The court considers a number of factors when determining the amount and method of payment of a monetary award or the terms of the transfer of interest in marital property, including the family home. The factors include:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and also
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
Maryland Family Law section 8-205(b).
A careful reading of the statute reveals that, in addition to specific factors, the court has broad discretion in determining the award of the family home. Specifically, while the statute identifies ten factors for the court to consider when dividing marital property equitably, it provides an 11th factor, a catch-all provision which allows the court to consider anything it deems appropriate for the division of marital asset, including the family home.
Getting an Attorney for Your Divorce
Of course, this broad discretion in the statute shows the importance of presenting to the court the evidence most favorable to you. This is best done by hiring an experienced, qualified Maryland family law attorney. Your attorney will help you get the compensation you deserve in the division of assets in your divorce proceeding. Additionally, an experienced family law attorney understands the important nuances between marital and non-marital property.
At Fait & DiLima, our lawyers work exclusively in the area of family law. We strive to work with our clients, attorneys for the other spouse, as well as the courts, to come to fair and equitable solutions without litigation. However, sometimes the parties experience difficulties resolving certain issues. When this happens, we have the knowledge and experience to litigate your family law issues to the fullest extent possible.
Contact our office for a consultation. Our family law attorneys will meet you at our offices in Rockville as well as Fredrick, Maryland. Whether you believe your divorce simply requires the review of an experienced attorney, or you believe you may be in for a difficult time, contact us to discuss your case.