A married couple’s assets and property are generally divided into two categories: marital (also referred to as joint property) and separate property.
Marital property is property and income that is acquired or received during a marriage by either spouse, regardless of whose name is on the title. This includes earnings, retirement contributions, homes, cars, and other items that are purchased or earned during the marriage. Marital property is jointly owned and will get jointly divided if you get divorced.
Separate property is property that one spouse owns before the marriage, and is not subject to division in a divorce. Certain types of property acquired during a couple’s marriage may also be considered separate property. This includes gifts and inheritances. In a divorce, separate property is generally awarded to the spouse who owns it. However, when spouses commingle separate property, it can lose its separate status.
Commingling occurs when one spouse’s separate property is mixed with marital property. This can happen when a spouse uses marital funds to improve, maintain, or contribute to separate property.
Let’s look at a real life example: A house that one spouse purchased before the marriage is considered separate property. You get married and later use marital funds to pay the mortgage, remodel, or make other improvements to the home. Your spouse now has gained an interest in the value of the home. Because the house, which was a separate asset, has been commingled with marital assets, it may be treated as marital property, not separate property, during a divorce.
Be prepared to prove that non-marital property is your own and was not commingled during the duration of your marriage. This typically isn’t a case of “what’s mine is mine and what’s yours is yours.” If this sounds confusing and complicated, that’s because it is. The line between marital and non-marital property divisions tends to blur, especially if you have acquired a number of assets during your marriage. Because this is a complicated area of family law and divorce, it is an area where you really want to seek effective legal counsel.
How do the courts distribute property?
Of course, it’s best if you and your spouse can come to an agreement on the division of property. You won’t need to involve the courts and the process will likely be much smoother. However, this isn’t always realistic, especially if you have a number of assets to consider.
In the case that you need assistance from the court, your marital property becomes subject to the concept of equitable distribution. The court begins by looking at the value of the property. They then consider the following factors:
- Length of marriage
- Why the marriage ended
- The income and economic circumstances of each spouse
- When the property was obtained
- How the property was obtained
- The effort put forth by each spouse to obtain the property
- The age of each spouse
- The health (mental and physical) of each spouse
- The total value of all property interests of each spouse
- Familial contributions made by each spouse over the course of the marriage
- Provisions made by the court regarding personal property and alimony
- Anything else they deem necessary to making an equitable division
Keep in mind that an equitable division does not mean a 50/50 split. Maryland is not a community property state where marital property is more or less divided evenly between the two parties. Equitable means fair, not even.
The court may also give a monetary award, or a lump sum, based on the value of marital property. It cannot transfer ownership, but a spouse may transfer property on their accord.
How can I prevent my separate property from being commingled?
The easiest way to prevent commingling is through a prenuptial agreement. A prenup states definitively who gets what in the event of divorce. Most prenuptial agreements are upheld, regardless of whether spouses commingled their property or not. Though it may be hard to think about divorce when you are engaged and planning your wedding and your new life together, if you are bringing considerable assets to the marriage, it might be something to consider. Remember, a prenup doesn’t just protect you. It also protects your soon to be spouse.
Arriving at an equitable solution for the division of marital property isn’t always easy. But, you owe it to yourself to fight for what you’ve worked so hard to achieve, both before and during the marriage. The legal team at Planta & Satin, LLC, have the experience and knowledge needed to support you and make that happen.
About Wendy Satin Law
Attorney Wendy Satin practices Family Law and Criminal Defense Law. She brings a wealth of trial experience coupled with calm, straightforward approaches and keen legal acumen to Wendy Satin Law and is regarded as one of the best lawyers in the State of Maryland.
Ms. Satin brings her vast trial experience and empirical knowledge to the table, whether the job is big, or small. All cases are “big” to the person at risk, or experiencing the breakdown of their family, and they deserve to have someone with a thorough and realistic grasp of the law, and judicial system, helping them in their time of need.
Contact Wendy Satin Law today at 301-762-1000 to discuss your case and the best way to achieve an equitable division of marital property, or visit our website: www.wendysatinlaw.com