Legal Guide

Who Gets The House In A Divorce?

Since laws governing marital property vary depending on the state, it might be best to hire a legal advisor for divorce to help you figure out what the law says about your case and advise you on the most possible outcomes. In Maryland, judges may not always divide marital property in a 50/50 split. Since it is an equitable distribution state, you may find that a divorce court divides marital property fairly between both parties, but that doesn’t always mean equally.

This article answers different questions related to the sharing of marital property, particularly the family home, during a divorce. 

Possession And Use Of The Family Home

Deciding who takes the family home or what to do with it can be stressful and challenging for a divorcing couple. Since the family home happens to be the most significant asset in most marriages, it is usually a source of complications in the event of a divorce. While it may be normal for either party to feel emotionally attached to their home, this can drag out the settlement process, especially if both spouses wish to retain possession of the home. Additionally, you may want to continue living in the family home if you have young children, mainly to provide a sense of stability after or even during the divorce.

Do you plan on keeping the family home after your divorce? First, you should consider how the court’s ruling on child custody might affect your right to remain in the house and the financial implications of supporting an entire household by yourself. Did you know that courts in Maryland can award one spouse the exclusive right to live in the house for a maximum of 3 years after the divorce? Below are some scenarios you are bound to encounter regarding your family home.

Property Division In Maryland

As mentioned earlier, Maryland is an equitable distribution state, meaning that courts here divide property based on each spouse’s financial need. In fact, most states follow this rule and use several factors to determine the best criteria for awarding property to each spouse during the divorce. Some of these factors include:

  • Ages of the spouses
  • Economic circumstances
  • Mental and physical condition of each spouse
  • Duration of the marriage

As such, equitable distribution may not result in the equal division of property. You may find that the court awards one spouse more property than the other based on the considerations above. However, it is important to note that equitable distribution rules only apply to marital property; assets that both spouses acquired during their marriage. Inheritances, gifts, and assets that either party owned before the marriage are termed “separate” and aren’t up for division. Also, the state allows married couples to identify some property as “separate property” through a written agreement.

Maryland has a unique exception to the equitable distribution rule for real estate property owned by a spouse before the marriage. For instance, if you owned a house before your marriage but added your partner to the title afterward, Maryland law considers that property a marital asset.

Keeping The Family Home If You Have Kids

In certain cases, courts in Maryland may award one party the exclusive use of the family car, household furniture, and other personal property. But first, your home needs to have been the main residence for both parties when you were married, be leased or owned by one of you, and be used by one spouse and one or more children after the divorce. The parent who is still living in the family home doesn’t necessarily have to have custody of all their children but is required to be the designated custodial parent of one or more children, stepchildren not included.

Some of the factors used by Maryland courts to determine whether one parent gets the right to use the family home include:

  • If either spouse uses the house for business purposes
  • Whether the arrangement will cause financial distress for the other party
  • The best interests of the child or children

Exclusive possession and use of the family home automatically terminates when the youngest child living there turns eighteen or if the spouse living in the house remarries; unless the parties agree otherwise.

While retaining possession of the family home may seem like a big win, you must ascertain that you can afford to live in it. Most people have to downsize significantly or even make lifestyle changes after a divorce due to the division of assets and loss of “supportive” income from the other spouse. As such, we recommend examining your financial reality before your divorce is finalized to determine if you can handle maintenance and mortgage expenses on your own.

Exclusive Possession Of The Family Home In Cases Of Domestic Abuse

Maryland courts have the authority to order a spouse to leave the house for up to a year upon issuing a protective order in situations involving domestic violence. If you are apprehensive of your spouse’s behavior towards you, you can file for an “Application for a Temporary Protection Order” which is usually heard the same day in court. Also, since that is an urgent matter, the hearing may proceed without the other spouse being present or even notified.

If the court grants you the temporary order, your case moves to the “Final Protective Order” hearing which is usually scheduled within 7 days. At this hearing, you will be required to bring evidence supporting your claim. The court can grant you exclusive possession and use of the family home for up to a year if they rule in your favor. However, domestic abuse is a severe allegation and shouldn’t be used to gain leverage in a divorce matter.

From this post, you can tell that getting the marital home during a divorce is not always cut and dry. That is why we recommend consulting a legal professional who understands local laws and can guide you throughout the process while helping you fight for what’s rightfully yours.


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