How Is Property Determined As Marital and Non-Marital In A Maryland Divorce?

The first step in Maryland property division is determining what is marital property and what is non-marital property. Marital property is property that was acquired by one or both of the parties during the marriage and is subject to division. Non-marital property is property that was acquired before the parties were married, acquired by inheritance or gift, has been excluded by valid agreement, or is traceable to any of these sources. Non-marital property is not subject to division.

How Is Property Divided in Maryland Divorce Cases?

Maryland is an equitable division state, meaning that the court decides what is fair or equitable distribution of the marital property. While the court may award one party a greater percentage of the marital property, generally Maryland courts award the parties equal shares of the marital property.

However, the court cannot change the title to property. There are some exceptions to this rule for retirement accounts, jointly titled marital home, and family use property. This means that if one party has real property or personal property such as bank accounts titled in their sole name, and that asset was acquired during the marriage with marital funds, that asset will remain the property of that party. The court cannot award the individually titled asset to the other party.

As a remedy to the inequity that may result when dividing marital property due to titling, the Court may award one party a “monetary award.” A monetary award is a judgment against one party and in favor of the other party for an amount of money that typically addresses inequities in the division of marital property. 

Under Maryland law, the court must undertake a three-step analysis when dividing property, which may result in a monetary award:

1. The Court must characterize all property owned by the parties as marital or non-marital, regardless of how the property is titled.
2. The Court determines the value of all marital property.
3. The Court may make a monetary award to one party to adjust the equities of the parties’ interest in the marital property. 

Retirement assets are an exception. The Court may divide retirement assets in a divorce, regardless of how they are titled. Defined benefit retirement assets, such as pensions, may be divided on an “as, if and when basis.” This means that a spouse may receive their portion of the other spouse’s retirement assets by direct monthly payment at the time that the other spouse retires. However, defined contribution retirement assets, such as 401(k)s or IRAs may be valued and divided at the time of divorce. Generally, retirement plans require the submission of a Qualified Domestic Relations Order (“QDROS”) or Retirement Benefits Order. These orders are prepared by counsel and signed by the Court for submission to retirement Plan Administrators at the time of divorce or shortly after.

Can I Dispute What Is Considered Marital Property During My Divorce in Maryland?

In some cases, one spouse may dissipate marital assets, meaning that one spouse has unreasonably expended marital funds or depleted marital property during the marriage, at the time of separation or during the divorce proceedings. If the Court finds that one party has dissipated marital assets, the Court may factor the value of the dissipated assets back into the property division.

We are dedicated to working with our clients to achieve a fair division of all marital property and work hard to fight for your rights to your assets built during the marriage. 

Written by Michelle M. Gohary, Esq.

Updated June 4, 2026