How Will the Court Divide Marital Property?

After identifying the marital property, the court’s next task will be to divide it between the parties. In Maryland, marital property is divided “equitably.” In other words, it is divided fairly. What constitutes an equitable or fair division of marital property differs with each case and is an ambiguity that is the cause of much of the litigation in Maryland divorce law.

Often, a fair division means an equal division, however, circumstances often exist that dictate against an equal division of marital property. The court may find that one party or the other was at fault in the breakup of the marriage, either as a result of desertion, adultery, cruelty of treatment, or another fault ground. If the court finds that one spouse’s conduct toward the other was bad enough and that such conduct caused the breakup of the marriage, the court may decide that such spouse is not entitled to a full half of the marital property.

The process of dividing marital property can force the court to make difficult decisions. Most property is not subject to easy division. A bank account or a retirement account is an asset that is easily divisible because the funds in such accounts can be divided, and each party can receive his or her equitable share. But how does the court divide a house? It obviously can’t saw it down the middle. What it can do is take such properties that it cannot divide and distribute them in a fair way. One way it can do this is by transferring title to some property from one spouse to the other.

Another way is by allowing one spouse to keep one item and allowing the other spouse to keep another item of comparable value. For example, the court may give one car to Husband and another car to Wife or give all the cars to Husband and the entire house to Wife, and so on. Another way the court can distribute property is by ordering that certain properties be put on the market for sale and that the sale proceeds be divided between the parties. There is more than one way to skin a cat, and there is more than one way in which the court can equitably divide and distribute marital property.

During a divorce proceeding, the court will divide only that marital property that is in existence at the time of the divorce, therefore, property that was earned or paid-for during the marriage but that was disposed of prior to the divorce—through gift to a third party, sale, destruction, or otherwise—is not included in the division. If a spouse is found to have improperly disposed of property, such as by sale for less than its full value, gift to a third party, or destruction, such spouse may be held accountable by the court when the court decides on the amount of any monetary award.


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