Clients regularly confuse what is considered “marital property” as opposed to “non-marital” property. I receive questions along the lines of, “my husband gave me that necklace for our anniversary so that’s non-marital property, right ?” or “I purchased furniture after we separated, so that’s my non-marital property, right?” To both questions, my answer is “no”.
Marital property is defined as “property, however titled, acquired by 1 or both parties during the marriage.” Thus, gifts from one spouse to another (like my client’s necklace) are marital property. Likewise, the parties’ separation does not sever one’s acquisition of “marital property” under Maryland law. So, property acquired after separation (like my client’s post-separation furniture purchases) is still “marital property”. Even though some items of property may be titled in one party’s name or the other, does not make that property his/her “non-marital property.” In fact, under Maryland law, only 4 categories of property are considered “non-marital property”:
- Property acquired before the marriage;
- Property acquired by 1 party by inheritance or gift from a third party;
- Property excluded by valid agreement (e.g. under a prenuptial agreement); or
- Property directly traceable to any of these 3 sources. That means if you purchased something with your earnings during the marriage, even though the other party did not contribute to the purchase, it is marital property.
Identifying marital versus non-marital property becomes difficult when “non-marital property” is commingled (or mixed) with “marital property”. Can you trace your property back? Can you prove that you owned the property prior to the marriage or that the property was acquired through an inheritance or gift from a third party solely to you? During the course of a marriage, when 2 people are married, they are likely not contemplating a future divorce, so over the years documentation evidencing his/her acquisition of non-marital property tends to disappear. If your non-marital property is deposited into a marital account or a joint account, you risk losing the trace of that property or having your spouse argue that the property is marital. A skilled attorney, and potentially a forensic expert, may assist you in figuring out what is marital versus non-marital property.
