PROVIDING HELPFUL RESOURCES FOR YOUR SEPARATION OR DIVORCE
   IN MONTGOMERY OR FREDERICK COUNTY, MARYLAND

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PROPERTY DIVISION and ALIMONY

   In a divorce proceeding, PROPERTY DIVISION and ALIMONY are considered together as one usually affects the other.

   In divorce, the Court has the power to determine ownership of real and personal property and order a partition or sale of jointly-owned property. The court cannot transfer title, EXCEPT for interests in pension, retirement, profit sharing or deferred compensation plans.

   The Court can order a MONETARY AWARD to adjust the parties’ equities and rights in “marital property.” Equitable distribution of marital property pursuant to a monetary award does not require an “equal” distribution of marital property.

MONETARY AWARD FACTORS:

Contributions, monetary and non-monetary, of each party to the well-being of the family

Value of all property interests of each party

Economic circumstances of each party at the time the award is to be made

Circumstances that contributed to the estrangement of the parties

Duration of the marriage

Age of each party

Physical and mental condition of each party

How and when specific marital property or interest in the pension, retirement, profit-sharing or deferred compensation plan was acquired, including the effort expended by each party in accumulating such property

Contribution by either party of non-marital property to the acquisition of real property held by the parties as tenants by the entirety

Any award of alimony or any award or other provision that the court has made with respect to family use personal property or the family home

   Any other factor that the court considers necessary or appropriate to arrive at a fair and equitable monetary award

“MARITAL PROPERTY”: All property, however titled, acquired by either or both parties at any time during the marriage up to the date of divorce (not date of separation). Marital property automatically includes any interest in real property held by the parties as “tenants by the entireties” unless the property is excluded by valid agreement.

“NON-MARITAL PROPERTY”: All property, however titled, which is not marital property under one of the following categories:

Property owned prior to marriage

Property obtained by gift from a third party (not the spouse) or inheritance

Property excluded by valid agreement (such as Pre-nuptial Agreement)

Property directly traceable to any of the above sources

COMMINGLING: When marital and non-marital are combined into one account or asset, under certain circumstances, the non-marital character of property may be destroyed or the property may be partially marital and partially non-marital.

ALIMONY

ALIMONY: Periodic payments for the support and maintenance of a spouse, which are taxable to the recipient and deductible to the payer. The payments may be for an indefinite period of time or for rehabilitative purposes (for a specific period of time) or a combination thereof.

MODIFICATION: Alimony may be modified based on “material change in circumstances” if awarded by the Court. Any modification can be retroactive prior to the date of the pleading requesting the modification. Parties can preclude modification in Separation Agreement by stating that the alimony “shall not be modifiable by any court.”

ALIMONY FACTORS: When determining alimony in a divorce proceeding, the Court will consider the following factors:

The ability of the party seeking alimony to be wholly or partly self-supporting

The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment

The standard of living that the parties established during their marriage

The duration of the marriage

The contributions, monetary and non-monetary, of each party to the well-being of the family

The circumstances that contributed to the estrangement of the parties

The age of each party

The physical and mental condition of each party

The ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony

Any agreement between the parties

The financial needs and financial resources of each party, including: 1) All income and assets, including property that does not produce income; 2) Any monetary award or award of exclusive use and possession; 3) The nature and amount of financial obligations of each party; 4) The right of each party to receive retirement benefits

Whether the award would cause a resident of a hospital, residential facility or related institution from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur

INDEFINITE ALIMONY: The Court may award alimony for an indefinite period if the court finds:

Due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

Even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.

      For more facts about divorce, see 10 Commonly Asked Questions About Divorce.

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