Divorcing Is Not Easy But Selling You Home Should Be

Dated: 07/10/2017

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divorcing hands

You may have questions about what will happen to your home, your savings and other assets-things that you and your spouse have worked towards during your marriage. The first thing you should know is that you DO have the rights to such property when seeking a divorce.

You and your spouse can agree on how to divide your property outside of court. If you are unable to do do the court has the power to resolve property disputes.

Additionally, the court may order one spouse to pay a monetary award to the other spouse in order to cover the other's share of the property. A monetary award may not necessarily be equal to half of the marital property. While the courts lacks the authority to for ownership of most types of property, it can, under certain circumstances, transfer ownership of retirement benefits, a jointly titled marital home, and family uses personal property. 

What is Marital property?

Marital property is all  property acquired bu either or both spouses at any time during the marriage up to the date of divorce (not the date of separation), as well as any real property owned jointly by the husband and wife as "tenants by the entirety." Maryland is an "equitable distribution" state. The purpose is to reach an equitable (fair) division of marital property, not necessarily an equal division.

 Marital property does not include:

  • Property owned prior to marriage;

  • Property obtained by gift from a third party (not the spouse) or by inheritance; 

  • Property excluded by valid agreement;

  • Property excluded by valid agreement;

  • Property that came directly from any of the above sources;

But note that non-marital property may become marital if it is commingled (mixed) with other marital property.

What factors will the court consider when determining whether or not to issue a monetary award for the marital property?

  • Contributions, monetary and -monetary, of each spouse to the well-being of the family;

  • Value of all property  interest of each spouse;

  • Economic  circumstances of each spouse at the time of the award is to be made;

  • Circumstances that contributed to the estrangement of the couple;

  • Duration if the marriage

  • Age of each spouse

  • Physical and mental condition of each spouse;

  • How and when specific marital property or interest in the pension, retirement, profit-sharing or deferred compensation plan was acquired, including the effort made by each spouse in accumulating the property;

  • Contribution by the spouse of non-marital property to the purchase of real property held by the couple as tenant by the entirety;

  • Any award of alimony or any award or other provision that the court has made with respect to family use personal property or the family home; 

  • Any other factor that the court considers necessary or appropriate to arrive at an equitable monetary award.

How will the court decide who gets your family home?Image title

What about your home? This is a very important question for someone going through a divorce. You may be wondering what will happen now to the home that you and your spouse purchased together.

A recent change in Maryland permits the courts to transfer an ownership interest in jointly owned real property which was owned by the parties and used as their principal residence when they lived together. However, the court may condition the transfer on requiring the spouse receiving the property to release the other spouse from any mortgage and may require the spouse receiving the home to purchase the interest of the other spouse.  Even if the court does not transfer ownership of a home, the court may allow the custodial parent to remain in the family home for a period of time (up to three years from the date of divorce), to enable a child to live in a familiar home and community. This is called a family home use and possession order

The use and possession of the family home may be awarded only to the parent who has custody of at least one minor child. The home may be awarded on a temporary basis until the divorce is finalized (pendent lite) and/ or for up to three years from the date of divorce.

Courts look at several factors when making decisions. In order for the court to award use and possession of the family home, the home:

  • Must have been the residence the parties used when they lived together.

  • Must be owned or leased by at least one of the spouses at the time of the proceeding.

  • Must be used by a spouse and any minor child of the parties as their residence; stepchildren do not qualify.

What may happen to the other property that you own?

While the court cannot order the sale of property held in the name of only one spouse, the court can order the sale of a jointly titled property. However, just as with a family home, the custodial parent may also be granted possession other family property  (i.e. a car), regardless of how title to the property is held. The following requirements will apply. The property:

  • Must have been acquired during the marriage of the parties;

  • must be owned by either or bith spouses at the time such an order passed;

  • must be used primarily for family purposed as distinguished from uses that benefit only an individual spouse;

  • May be awarded on a temporary basis (pendente lite) and /or for up to three years from the date of the divorce.*

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Always consult legal representation when handling these legal matters. Also, know that I am not a Lawyer nor do I project myself as one

*Montgomery County Commission for Women A guide to surviving the legal process of Separation, Divorce and Custody in Maryland.

Ana Natasha Ferguson

ANA (A New Approach) it is not only my name it is my way of life. I understand the significance of real estate decisions and its impact on people. Therefore, I help clients make informed real estate d....

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