Lee S. Ashmore

In Maryland divorce law, only marital property can be divided.  Marital property is property acquired during the marriage by the efforts of husband and wife.  At the time of divorce, the court is required to identify, value, and equitably divide the marital property.  Sounds simple, right?

At each step of identifying, valuing, and dividing marital property numerous coplexities, difficulties, and surprise await.  First, what exactly is property?  Is an advanced degree, such as an MBA, property.  (No). Is a professional practice, or other business interest, property? (Sometimes yes, sometimes no).  Are stock options property? (Yes). Often in a divorce, issues arise about the classification of "assets."  Are they actually "property" that can be valued and included in the division of marital property?

Next, separating marital property from non-marital property can often be a difficult, sometimes even an impossible, task.  First, all property belonging to either spouse is presumed to be marital.  The party claiming that an item of property is not marital must prove it by showing: (a) that they owned the property prior to the marriage; (b) that the property was a gift to them alone; (c) that the property was inherited; or (d) that there is an agreement between the parties that the property is not marital.  In a twenty year marriage proving that property is non-marital may be impossible because the property has gotten mixed up with marital property and the documents are long done. Also, property that was once nonmarital may become marital by getting mixed up with marital assets.  For instance, a house owned as tenants by the entireties is all marital regardless of how much nonmarital money was invested in it. If money from an investment account owned before the marriage is used to purchase the house  or pay off some of the mortgage, it becomes marital property.

Property can be partly marital and partly nonmarital.  If one party owned a house before the marriage and then the mortgage is partly paid down during the marriage with marital funds, the house is partly marital and partly nonmarital.  In Maryland divorce law, a house is acquired during the process of paying down the mortgage.  Further, any market increase in the value of the house during the marriage can be partly marital and party nonmarital depending on the ratio of funds used to pay down the mortgage.  Actually proving such a division in court is a complicated and expensive process involving real estate appraisers.

Valuing property is sometimes easy and sometimes hard.  The value of money in an account, whether a checking account, mutual fund, or 401(k), is whatever the account is worth at the time of the divorce hearing. Real estate appraisal is usually a straight forward matter producing consistent and reliable numbers. But valuing someone's interest in a business is an art, not a science. Busines valuation experts can, and do, produce wildly different values. Husband's expert may say his interest in a business is wroth $50,000, while Wife's expert may say it is worth $2,000,000.  A major part of a divorce trial can be spent battling over which of these figures is more accurate.

Sometimes a spouse will try to start the division process on their own by hiding or spending marital assets.  Once the other party can establish that the asset existed  and that their spouse spent it at or after the time the marriage was breaking down, the spouse must then explain what they did with it.  If they cannot satisfactorily explain, the court will treat the assets as if it still existed and include it in the calculation dividing the marital property.

Once the marital property is identified and valued, the court will divide the marital property in a way that it thinks is fair.  Jointly titled assets will be sold and the proceeds divided.  If one spouse has most of the marital assets in their own name, the court will give the other spouse a judgment that they can then collect on like any other judgment creditor.

In identifying, valuing, and dividing marital property, the judge has broad discretion to do whatever he or she thinks is best.  While judges often divide the marital property evenly, the decision is in the mind of the individual judge.

Lee S. Ashmore is a Maryland divorce lawyer who handles family law matters, including divorce, child custody, visitation, child support, alimony, property division, adoption, guardianship, separation agreements, domestic violence, paternity, contempt, and collections in Howard County, Maryland, Columbia, Maryland, Ellicott City, Maryland, Elkridge, Maryland, Savage, Maryland, Clarksville, Maryland, Glenelg, Maryland, West Frienship, Maryland, Glenwood, Maryland, Highland, Maryland, Marriottsville, Maryland, Woodstock, Maryland, Anne Arundel County, Maryland, Laurel, Maryland, Jessup, Maryland, Glen Burnie, Maryland, Annapolis, Maryland Fort Meade, Maryland, Crofton, Maryland, Beltsville, Maryland, Baltimore County, Maryland, Catonsville, Maryland, Montgomery County, Maryland, Silver Spring, Maryland, Olney, Maryland, Burtonsville, Maryland, Prince George's County, Maryland, College Park, Maryland, Bowie, Maryland, through litigation, negotiation, mediation, and collaborative law.