Division of Property in Maryland Divorce

Spouses in a divorce are free to agree on the division of any or all of their marital property, without the intervention of Maryland courts. However, if the spouses cannot agree, Maryland’s Marital Property Act controls the division of property.

 Maryland is an “equitable distribution” state, meaning the combined assets of the spouses are not automatically split 50/50. Instead, the Maryland court uses a great deal of discretion to divide the divorcing couple’s property fairly.  

The first inquiry for the court is deciding which property constitutes “marital property” and which constitutes “non-marital property”. In addition, some property falls into the hybrid categories of “part marital and part non-marital property”, and “family use personal property”. Maryland Code of Family Law Section 8-201 defines the property types for purposes of divorce.


Marital Property 

Marital property is any property acquired during the course of the marriage, regardless of how it is titled. An asset may still be considered marital property even if it is paid for by one spouse from their income. A home titled as tenants by the entireties is, by definition, marital property. Marital property typically includes real estate, bank accounts, stock, pensions, and retirement assets, furniture, cars, and personal property.


Non-Marital Property 

Excluded from the realm of marital property is property:

  • Acquired before the marriage
  • Received as a gift or inheritance
  • Excluded by a valid contract
  • That is directly “traceable” to any of the above sources 

The party who is claiming property to be non-marital has the burden of proving to the Court the nature of its acquisition or the tracing to the non-marital source.


Part Marital and Part Non-Marital Property 

Part marital and part non-marital property depends on the specific assets and circumstances, but some examples include a home purchased before the marriage with mortgage payments made with marital funds during the marriage, a business started by one spouse that has increased in value during the marriage, or a retirement account started before the marriage with contributions made during the marriage with marital funds.


Family Use Personal Property 

To allow a divorcing couple’s children to continue to live in a familiar environment or community, certain property may be disposed of as ‘family use personal property.’ The court has the authority to order exclusive use and possession of the property, including the family home and other assets, to the spouse with custody of the minor children, for up to three years.


Monetary Award 

Once the couple’s property is accurately categorized, a host of factors are considered by the court to ensure that the totality of a divorce settlement is “fair” to all parties. Maryland Code of Family Law Section 8-205 sets forth guidelines for the court in awarding property to divorcing spouses. After determining the category of a particular property, the court will assess the value of such property and then apply “fairness principles” to the particular case. These principles include: 

  • Monetary contributions made by each spouse
  • Non-monetary contributions made by each spouse for familial well-being
  • Value of property interests in each spouse’s name
  • Possible alimony awards
  • Length of time the spouses were married
  • Age and physical and mental health of each spouse
  • Economic circumstances and earning capacity of each spouse
  • Duration of the marriage
  • Circumstances that lead to the divorce


It should be noted that the court may not transfer the title of property from one spouse to another, with some exceptions; however, the court may grant a monetary award to the untitled spouse as an adjustment for any inequities in the division of property. The court is not required to compensate each spouse for 50% of the property but instead will apply the above equitable distribution factors in making the final monetary determinations. 

The division of property in a divorce can be nuanced and complicated. While Maryland courts seek fairness in utilizing their broad discretion, results for the family can be optimized by working together, and by acquiring legal advice and representation. The attorneys at TNS Family Law are experts in all aspects of property rights and division in a Maryland divorce.


If you have questions about divorce and division of property, please contact Turnbull, Nicholson & Sanders, P.A. at (410) 339-4100 or Our team of family law attorneys is here to help guide you.


Related Posts: 

Can I Modify My Child Custody Agreement?
What Are the Grounds For Absolute Divorce in Maryland?
Maryland Divorce FAQs


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