If a home is owned by a spouse prior to marriage, assuming there was no marital money contributed to the home during the marriage such as a payment to a mortgage or payments made to the upkeep of the property, this property would not be subject to distribution on divorce. But it could be considered as a factor in the determination of a monetary award.
If spouses own an income property, assuming the income property is jointly titled and was purchased during the marriage, the income property is subject to division on divorce. In this scenario when an income property is not used as a principal place of residence of the spouses, the property cannot be transferred to one of the spouses. The court only has the authority to order the property sold and the proceeds divided equally.
If an income property was purchased during the marriage with marital money and is titled to only one of the spouses, the property is not subject to a request to transfer the property to the one spouse without the title. But the spouse without title can ask the court for a monetary award to account for their interest in the home. The same is true for family residents in vacation homes that are not used as the spouse’s principal place of residence.
If a property is titled jointly and used as the spouse’s principal place of residence, either spouse can ask the court to transfer the property to them. The court has the discretion assuming both spouse have the ability to refinance the home to remove the other spouse from the mortgage, if there is a mortgage, to transfer the home to either spouse. Or a court may order the home to be sold and proceeds divided equally. If the home is transferred to one spouse, the other spouse would be entitled to a monetary award for their interest in the home.
Vince Wills and Christina DeVault are divorce attorneys from Maryland. A Fellow of the prestigious American Academy of Matrimonial Lawyers, Vince has co-authored numerous published articles on family law topics. Super Lawyers has named him as a top attorney for Maryland and the Washington Metropolitan area. Christina’s practice includes representing clients at all stages of family law, helping her clients make important decisions with confidence.
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