How are Assets Divided during Divorce?
When a marriage ends in divorce, it usually, regrettably involves hard decisions and challenging discussions like those regarding the reasonable division of property once shared during the relationship.
If you and your spouse are able to be amicable, then you are much more likely to cooperatively divide your assets, debts, and property. Alternatively, if and when there is contention between you and your spouse, then the division of assets becomes a complicated matter. Often times one spouse or the other truly believes that they are entitled to a particular asset or group of assets. At this point your divorce attorney can help navigate you through these stormy seas. All marital situations are unique and there are several things that must be considered when dividing assets during a divorce.
Marital Property v. Non-Marital Property
When considering the division of assets the first determination to be made is whether the asset is marital or non-marital. Marital property is any asset earned or acquired during the marriage with certain exceptions. For example, any income from employment earned by either spouse during the time they were married is marital property. On the other hand, any property owned by one or the other spouse prior to the marriage is considered non-marital. Because nothing is ever simple, non-marital property can become marital property if it is co-mingled with marital property. Similarly, if you inherit money and you kept it separate and apart from your marital property, then not only would that inheritance remain non-marital, but the interest, appreciation and dividends derived from it would be non-marital, provided the additional income was not commingled.
It gets further complicated. Let’s say you had a bundle of money saved up before the marriage. Let’s also say you get married and then use your non-marital savings to make the down payment on your marital home. During the years of your marriage, all mortgage payments were made from marital funds; specifically from money you and your spouse earned from your respective employments. At the time of divorce and property division, how much, if any, of the equity from the marital home should you receive? Are you entitled to be reimbursed the non-marital funds you used as the down payment? How about the situation where you sold the original marital home and purchased a second home with the proceeds from the sale of the first marital home. Should you be entitled to any of your original investment?
Equitable Distribution Jurisdictions
Both Maryland and DC are equitable distribution jurisdictions. That means that the court/judge can divide the proceeds from the sale of the marital home between the spouses and the court believes is fair and equitable. In addition, judges are given a lot of discretion in determining what is fair and equitable. The courts of appeals which oversee the rulings of trial judges will not disturb the trial judge’s ruling unless the court’s determination was “clearly erroneous” or displayed an “abuse of discretion.”
Because of this wide degree of latitude the court has in distributing assets, determining the “correct” distribution of these assets is open to a wide degree of interpretation. You can see why there are many situations in which amicably resolving property issues can be extremely difficult. That is why you need the most skilled, knowledgeable, articulate and persuasive divorce lawyer you can find. You want someone on your team who is willing to advocate and fight for you.
The Law Offices of Lloyd A. Malech is located in downtown Bethesda, Maryland. For more than 25 years, Mr. Malech has provided aggressive and effective representation for his clients in Maryland and the District of Columbia. He has been honored with the Lawyers of Distinction Award Recognizing Excellence in the Area of Divorce and Family Law for the past three consecutive years and has just been recognized as a Family Law Top 10 Attorney for 2021 by “Attorney and Practice Magazine.” Visit Malechlaw.com or call (202) 441-2107.