What May Happen To Your Marital Home In A Divorce

The marital home is often the largest financial asset that a family has and can hold a strong emotional attachment for the parties or their children. In Maryland, regardless of how a home is titled, if it was purchased during the marriage, it will be deemed marital property by the Court, unless it was acquired via gift, inheritance, or a valid agreement states otherwise. If the home is marital property, then it will be within the jurisdiction of the Court to address as part of the divorce. If the parties have children, the marital home could also be deemed family use property, which gives the Court broader discretion to deal with the marital home. When going through a divorce in Maryland, it is important to know your options so you can consider the best possible path forward.

Mutual Agreement

The path that will give a family the most control over what happens to their marital home during a divorce is by mutual agreement between the parties. If both parties agree, then they may create a unique and specific agreement that best suits their situation. Whether that is selling the home and splitting the proceeds, one party buying out the other parties’ interest in the home for an agreed upon sum, or crafting an agreement that allows for their children’s stability in the home until they are older, a mutual agreement allows the parties broad discretion to deal with their family home in the way that is best for them.

Any agreement between the parties should be memorialized in a Marital Settlement Agreement or other, similar binding contractual document.  The written agreement should include a specific description of all of the terms and deadlines pertaining to the marital home, such as who will live in the marital home until it is sold, when it will be placed on the market for sale and how the proceeds of the sale will be split.  A knowledgeable family law attorney can assist with the drafting of this agreement so that it clearly reflects the parties’ intentions.

Court Determination

If the parties are unable to come to a mutual agreement on what to do with the marital home, then it will be up to the Court to make that determination. It is important to note that the Court is not allowed to transfer the marital home titled to one spouse to the other spouse and will instead often order the marital home be sold and the proceeds split equitably or will award one spouse a monetary award to account for their financial interest in the marital home.

In order to determine each spouse’s financial share in the marital home, the Court will consider a number of factors, including:

1. The monetary and non-monetary contributions of each spouse to the family unit;
2. The value of all of the property interests of each party;
3. The economic circumstances of each party at the time of the divorce;
4. The circumstances which contributed to the estrangement of the parties;
5. The length of the marriage;
6. The age, physical and mental condition of the parties; and
7. The contribution of either party to the acquisition of the home.

While each party may make a request to the Court on what they would like to happen with the marital home, the ultimate decision will come from the Judge who is hearing the evidence in the case. While one party’s request may be granted, it is important to note that the Court may reject both parties’ requests and instead fashion an award the Court feels is equitable.

Use and Possession

If the Court deems the marital home to be family-use property, the Court may award use and possession of the marital home to either party that has custody of the minor children. Use and possession may only be ordered for a period of up to three (3) years and is intended to promote consistency and stability for the minor child or children.

In determining whether to award use and possession of a marital home to either party, the Court will consider various factors, including:

1. The best interest of the children;
2. The interest of each spouse in continuing to use or occupy the family home;
3. The interest of each spouse in continuing to use the family home or part of it for the production of income; and
4. Any hardship imposed upon the spouse whose interest in the family home is infringed upon.

The marital home is more than just a significant asset – it is often the core space of stability for the parties and their children. Understanding this issue with a clear plan for the future is a key part of any divorce.

The attorneys at Greenberg Legal Group LLC have extensive experience working with clients in both contested and uncontested divorce matters involving a marital home.

Our firm is located in Annapolis, Maryland and practices in Courts throughout the State of Maryland. Please contact our office at (410) 237-6558 for further assistance.