If the marital home is held by the parties as tenants by the entirety, the Maryland Family Law Code classifies the home as marital unless excluded by valid agreement. Prior to this classification, the courts relied on tracing to determine how the martial home should be divided between the parties. Tracing allows each party to show whether premarital assets contributed to the down payment of the home, and if so, looks at the percentage of the value that is attributed to one party based on the amount of money invested. Md. Family Law Code Ann § 8-201 removed tracing from the equation completely. If the parties titled the home as tenants by the entirety, the home is marital property.
Can the Court Order a Buy-out?
The court may transfer an ownership interest in real property (a home) owned by the parties and used as a principal place of residence of the parties when they lived together. This transfer requires a release of lien for the other party and authorizing one party to purchase the interest of the other party, or both. (Md. Fam. Law Code, Ann. § 8-205).
If the home is not being used as the primary residence of one or both of the parties, the court is not strictly authorized to order a buy-out.
How are Monetary Contributions to the Home Viewed?
Once the court determines which property is marital, and the value of the marital property, the court may grant a monetary award as an adjustment of equities, whether or not alimony is awarded. (Md. Fam. Law Code, Ann. § 8-205). The court determines the amount and method of a monetary award after considering the following factors:
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The value of all property interests of each party;
- The economic circumstances of each party at the time the award is to be made;
- The circumstances that contributed to the estrangement of the parties;
- The duration of the marriage;
- The age of each party;
- The physical and mental condition of each party;
- How and when the property was acquired, including the effort expended by each party in accumulating the marital property;
- The contribution by either party to the acquisition of real property held by the parties as tenants by the entirety;
- Any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
- Any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property.
Although the court will consider the property marital without requiring tracing of dollars, the court may exercise discretion by looking at the overall equitable distribution weighing many factors.
Equitable distribution is a complicated process that requires the classification and then division of marital property. The court has discretion to weigh the factors as long as each factor is considered. They do not need equal weight.
An experienced family law attorney will help you classify separate and martial property and prepare to address each of the factors that impact distribution.