In Maryland Who Gets The House During And After The Divorce

In Maryland Who Gets The House During And After The Divorce

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For many divorcing couples in Maryland, deciding what to do with the family home is a source of stress and conflict.

In most marriages, real estate is the most significant asset, which can cause a variety of complications. 

Many people feel a deep emotional attachment to their homes, which can delay settlement efforts if both sides wish to remain in the house. 

If they have young children, they may want to continue living in the family home to provide the kids with a sense of stability after the divorce. 

If you plan to keep the house after your divorce, there are several things you should consider, from the financial impact of supporting a household on your own, to understanding how child custody can impact your right to remain in the home.

Maryland is an “equitable distribution” state, which means that it divides property according to each side’s financial need. The vast majority of states follow the equitable distribution rule and use a variety of factors to determine how property should be awarded to each party in a divorce.               

Some things Maryland courts consider include the duration of the marriage, the physical and mental condition of each party, their economic circumstances, and their ages. 

Equitable distribution doesn’t always result in property being divided equally. In some cases, the court might award more property to one spouse over the other. 

Under equitable distribution rules, only “marital property” is included in the property that gets divided. In Maryland, “marital property” includes all the assets the husband and wife acquired during the marriage. 

Gifts, inheritances, and things owned prior to the marriage are considered “separate property” and not part of the marital property. Maryland also permits married couples to designate certain property as “separate” by entering into a written agreement. 

Unlike other equitable distribution states, Maryland makes a special exception for real estate a person owned before he or she got married. If you owned a house prior to your marriage but added your spouse to the title later on, Maryland law automatically designates the property as a marital asset. 

Keeping the Family Home if You Have Children Courts in Maryland can give one spouse the exclusive right to live in the family home for up to three years after the divorce. 

Under certain circumstances, the court might also award one side the exclusive use of personal property like household furniture and the family car. The home must have been the parties’ main residence while they were married, be owned or leased by one of the parties, and be used by one of the parties and at least one child as a residence after the divorce. The parent living in the family home doesn’t need to have custody of all the couple’s children, but he or she must be designated custodial parent of at least one child, not including a stepchild. 

The court considers many factors in determining whether to give one parent the right to use the family home, including the best interest of the child, whether the arrangement will create financial hardship for the other spouse, and if either party uses the residence for business purposes. 

Unless the parties agree otherwise, exclusive use and possession orders terminate if the spouse living in the family home gets remarried or when the youngest child living in the house turns eighteen. 

Before you decide to stay in the home, you should make sure you can afford it. For most people, a divorce means adjusting to a more conservative standard of living once all the assets are divided and two incomes are suddenly reduced to one. While it’s normal to feel emotionally attached to the family home and the memories associated with it, it is best to examine your financial reality before the divorce is final and determine if you can truly handle the mortgage and maintenance costs on your own.


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The tax implications, specifically capital gains tax. The current capital gains tax law says that if you are married filing jointly and selling a home you can be exempt from being taxed on up to $500,000 in profit. If you’re single the capital gains exemption gets cut in half to $250,000. To be eligible for this exemption it is required that you have lived in your home for at least two of the last five years. The home must be your primary residence and not an investment property or second home. For specifics on your personal tax situation, please speak to a qualified tax professional.

The Bottom Line essentially what all this means is that there is a huge financial incentive to sell the home while you are still legally married. Selling your home will allow for up to $500,000 in profit to be excluded from federal capital gains taxes. Half a million dollars!!!

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Michelle Grunberg Headshot
Phone: 443-691-8800
Dated: March 14th 2018
Views: 314
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