If you received an inheritance either before or during your marriage, and if you are getting divorced in Maryland, have a Germantown divorce attorney advise you, represent you, and protect your rights and interests in your divorce proceeding.
When couples divorce in Maryland, a dispute may arise if one spouse claims a right to an inheritance that the other spouse received during the course of the marriage. Does one spouse have the right to part of the other’s inheritance? What if the inheritance has been commingled?
How can you protect an inheritance in a divorce? Keep reading this short introduction to divorce and inheritance in Maryland for some answers, but if you received an inheritance, and you are divorcing, you also must have personalized advice from a Germantown divorce lawyer.
How Are Assets Divided in a Maryland Divorce?
For the division of property and assets in a divorce, Maryland is an “equitable distribution” state. This means that marital property – including any assets or properties acquired by either spouse in the course of the marriage – will be divided by the court in a “fair” and “equitable” manner.
Unlike “community property” states, courts in equitable distribution states are not required to split marital properties and assets evenly, provided that the division is fair and equitable. In practice, however, in most cases, the division of marital property is approximately “fifty-fifty.”
However, in Maryland, an inheritance received by only one spouse – whether it was received prior to the marriage or during the marriage – is not usually categorized as marital property. In most cases, an inheritance will remain the individual and personal property of the inheritor.
Can Divorcing Couples Divide Their Own Assets and Properties?
If you and your spouse don’t want a judge dividing your property, you may prepare a voluntary written agreement dividing the assets and property and resolving any related issues. The divorce process moves faster and costs less when divorcing spouses find ways to agree and compromise.
Presuming that your written property agreement is fair to both parties and complies with Maryland law, a court will probably “sign off” on your agreement. Some divorcing spouses in Maryland negotiate a property division agreement privately by pursuing the mediation process.
Unless spouses have a voluntary property division agreement, a postnuptial agreement, or a prenuptial agreement in place, a Maryland court will split the marital property according to Maryland law, which usually means – approximately – a “fifty-fifty” split.
What Happens When Funds Are Commingled?
Personal assets and properties that you bring into your marriage, along with any personal gifts and any inheritance that you alone receive during the marriage, are categorized in Maryland as personal property and not as marital property, but that can change.
If you mix or “commingle” marital funds with personal funds such as an inheritance, that may change the way Maryland law categorizes those funds, and a court may determine that your personal assets can no longer be identified or separated – and therefore are now marital assets.
For example, if your inheritance goes to a joint bank account and is used for marital expenses, your inheritance may lose its personal property status. Similarly, if inheritance funds are used for improvements to the primary marital residence, they may then be characterized as marital funds.
How Are Assets Identified as Marital or Personal Assets in a Divorce Proceeding?
In a Maryland divorce, if you ask the court to declare that a commingled asset is your personal property, you and your Maryland divorce attorney will have the burden of proving that claim, and your spouse will not be required to prove that the commingled asset is a marital asset.
The law in Maryland presumes that any commingled assets are marital assets unless and until one spouse proves otherwise. According to state law, “any property acquired during the marriage that cannot be directly traced to a non-marital source is marital property.”
Whether your position is that a commingled or disputed asset is marital property or your own personal property, you will need to be advised and represented by a Germantown divorce attorney who has substantial experience handling divorce-related property and asset disputes.
Have You Prepared a Postnuptial or Prenuptial Agreement?
You may already know that prenuptial agreements are legal documents that couples who are about to marry may prepare with the help of one or more attorneys. A “prenup” is a legal agreement that can specifically protect each partner’s personal property in the event of a divorce.
If you are already married, you and your spouse may instead create a “postnuptial” agreement – with the help of a Maryland family law attorney – that protects each partner’s personal property, including any inheritances or gifts that either partner may receive in the course of the marriage.
In Maryland, a prenuptial or postnuptial agreement must be in writing. Both spouses must sign it. Before the signing, each spouse should make a full disclosure to the other of all assets, property, and debts, unless one spouse waives the right to that information.
If the agreement is contested, the court will try to determine if there was duress or fraud, if either party’s debts and assets were not disclosed fully, or if the document is not compliant with Maryland law. In such cases, a court may decide the agreement cannot be enforced.
What’s Important to Remember?
Full financial disclosures help the court divide marital property because those disclosures give the court a current and presumably accurate snapshot of each partner’s financial circumstances. Have your Germantown divorce lawyer help you with your financial disclosure paperwork.
Honesty between divorcing spouses is the key to a smooth, quick, and less expensive divorce. Any attempt by either spouse to hide assets, any failure to disclose income, or any other dishonesty only serves to make the divorce process lengthier, costlier, and more difficult.
When you prepare properly for a divorce, and when a reliable Maryland divorce lawyer advises and represents you, after your divorce you should move constructively and positively into your future, and your divorce attorney will work to ensure that you keep your gifts and inheritances.
Property issues are only one aspect of a divorce. Your attorney should have considerable experience with every facet of a divorce proceeding. Divorce is always difficult, so be certain at the beginning of the process that you obtain the legal representation and advice you will need.