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Asset Division: Divorce

patrickcrawford | January 24, 2022
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Assets Challenging to Divide in a Divorce!

 

The division of assets in a divorce is ultimately based on state law and the court’s decisions. You may live in a community property state or an equitable distribution state like Maryland. But, in either case, some assets can be more challenging to divide than other assets. 

A knowledgeable divorce attorney can help you begin to plan your divorce and how assets will be divided. 

The divorce court will aim to divide assets in a way that is fair and equal to the property. However, this mandate does not mean that the marital property will be split fifty-fifty. The factors that the court considers in making an equitable division of the property include:

  1. The relative needs of the parties – the spouse with fewer assets or less income may be awarded more as part of a fair settlement.
  2. Custody – the spouse responsible for physical custody of the children may be awarded more assets in order to ensure the well-being of the children.
  3. Future earnings issues – where one spouse has foregone career advancement and thus future earnings to care for children or assist in the advancement of the other spouse may receive more of the assets.
  4. Any hardship that the division might impose on the parties.

In other words, the court will split the assets equally, but it will also determine what “equal” means. 

The Relatively Easy Assets

Some assets are relatively easy to split equitably in a divorce. Easy items include cash and cash equivalents like brokerage and bank accounts. It should also be noted that, in Maryland, debts accrued during the marriage are also part of the marital estate but only if signed by both parties and will be divided between the parties as well. 

The Challenging Assets

Other assets are much more difficult to divide since they can’t simply be handled by writing two checks. Begin by creating a list of assets that constitute the marital estate. Some of these assets and the ways they are often handed include:

Family Residence

The family residence may well be the largest asset in the matrimonial estate. There are a limited number of ways to divide it. The parties may choose to continue paying the mortgage while, for example, the minor children continue to live there with the primary custodial parent.

Instead, the parties may choose to transfer ownership from both spouses to one alone as part of the property settlement. Finally, the parties may decide to sell the property, pay off the mortgage, and divide any remaining cash. 

Retirement Benefits

Particularly in marriages where only one spouse works or where one earns significantly more than the other, pensions and retirement accounts may present a major dispute in dividing the estate.

The Maryland Marital Property Law permits the court to consider non-monetary contributions to the marital estate in if it appears that the retirement accounts may be deemed part of the marital estate and subject to division.

The spouse owning the account should request a Qualified Domestic Relations Order (QDRO) which will specify who receives what from the plan or account. The division of retirement assets is very complicated and is best handled by working with an experienced family law attorney

Family-Owned Business

One of the most complicated property division issues comes from trying to divide a family-owned business. The present and future value of the business have to be calculated.

The split can be relatively easy if the business is small with only the two spouses as owners. One spouse may buy out the other, or a long-term payout can be arranged.

On the other hand, if suitable for it, the business may be divided as a going concern, with parts of the operations going to the respective parties. 

Family Use Personal Property 

Maryland recognizes a category of property known as “family use personal property.” It includes things like the family home, cars, furniture, appliances, etc.

The court can award exclusive use and possession for up to three years of any of these items to the spouse with custody of the minor children. The intent is to ease the transition for the children by keeping familiar things in their environment. 

Vehicles

Depending on when and how the vehicles were purchased, they may or may not be part of the marital estate. If the vehicles were purchased before the marriage, they would not be part of the marital estate.

However, if they were purchased during the marriage, then they will be part of the equitable division. The parties may, for example, choose to allow each party to keep the vehicle that he or she uses most often.

Please note that any vehicle given by one spouse to the other as a gift is not part of the marital estate unless commingled. 

Jewelry

Jewelry that is the property of one spouse of the other and was received as a gift is generally not part of the marital estate (again, assuming it was not subject to payments from marital assets).

This would include wedding rings. Jewelry received from someone other than the spouse as a gift will not be part of the marital assets. 

Valuable Artworks

For married couples with a significant art collection, valuing and dividing that collection can be challenging. Artworks may be difficult to value, especially if they have been in a collection for years and their value may have substantially changed.

Similarly, the values, when determined, may differ considerably between the various pieces, making an equitable division more complicated. Even with various artists’ expert testimony and comparable sales, valuation remains problematic.

The more arduous the court finds the valuation to be, the more likely it is to order that the artworks be liquidated. Once the artwork has been sold, the parties can divide the proceeds.

It is also, of course, possible that in such a situation, one or other spouses may choose to purchase particular pieces for themselves from the other spouse. 

Effect of Prenuptial Agreements

All of this can be complicated by the effect of the terms of any prenuptial agreements that the parties may have entered into prior to the marriage. Virtually any asset discussed above can be decided in a prenup.

In Maryland, a prenup can cover alimony, property rights, and personal rights. The agreement can address rights at the time of the marriage and into the future. 

Some Assets Aren’t Part of the Split at All

There are assets referred to as non-matrimonial assets. These assets are generally those which were acquired before or after the period of the marriage.

Any assets acquired during these periods and maintained separately during the marriage would be treated as non-matrimonial assets not subject to the division of property under the divorce.

Other non-marital assets include gifts or inheritances received during the marriage but separately maintained. The property must not have been mingled during the marriage to maintain the separate property status. 

Let a Maryland Divorce Attorney Help You with Your Asset Division

If you are contemplating divorce in Maryland and are concerned about the equitable division of your property, contact us immediately for an initial consultation and case review. 

 


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