Maryland divorce: what happens to the family home?

In many families, the residence is the most significant asset, making the decision of what will happen to it in a divorce extremely important from a financial standpoint. But the ideal disposition of the family home can also depend on nonmonetary factors like emotional ties or whether it would be better for a child's stability to remain there.

Many issues, some complex, must be addressed. For example, will the house be sold or kept by one or both parties? Has the bad economy affected the value; is the mortgage underwater? Who will live there and can that person make the mortgage payments? Will he or she qualify to refinance? Can that person keep up the care and maintenance physically and financially? If there are children, what is best for them vis-à-vis their childhood home? If one party keeps the house, is there enough other property to make the overall division equitable for the other spouse? How will taxes, insurance and maintenance expenses be factored in, if at all?

What does Maryland law say?

In a Maryland divorce property division, the classification of marital versus nonmarital property is crucial. "Marital property" is that which was acquired by either or both spouses during the marriage regardless of whose name is on it. Particular property is nonmarital if the parties have a legal agreement to that effect; it was acquired before they married; it was a gift or inheritance from an outside person; or the money used to buy it was "directly traceable" to one or more of these sources.

If the family home is marital property, it will be divided as part of the divorce settlement. The parties may be able to negotiate or mediate the details of the home's disposition as part of an overall marital settlement agreement, which is advantageous because the parties have control over the decision.

If the spouses cannot agree, the judge in the divorce will decide how the house will be handled as part of the division of property.

In dividing property, Maryland law directs the judge to issue a "fair and equitable monetary award or transfer of an interest in property." The court must consider anything "necessary or appropriate" and is required to look at a minimum of 10 specific factors.

Some of the required factors include: each party's financial and nonfinancial family contributions; each party's assets and "economic circumstances"; how long the marriage lasted; each party's physical and mental health, and age; the circumstances of the purchase of marital assets (including the home if it is marital); each party's contributions to property acquisition; and how the court intends to handle alimony, family-home and "family use personal property".

The remaining factor the Maryland judge must look at is "the circumstances that contributed to the estrangement of the parties." This might have significant impact on the court's determination of what is a fair and equitable property division, especially if one spouse is perceived to have acted inappropriately or irresponsibly. Interestingly, not all states allow consideration of what personal circumstances brought the couple to divorce court.

Get legal advice

Anyone in Maryland facing divorce who may need to understand the law and how it impacts the future ownership of the family home should consult with an experienced family law attorney for guidance and representation.