Before a new law in October of last year, a Maryland divorce court could not transfer title to the marital home. In a divorce, the court could only order the parties to sell the marital home and divide the net proceeds equally.

The court usually appointed a trustee to hire a real estate agent and sell the house. If one party wanted to buy the other out, the could do it by agreement, but if there was no agreement the only choice was to sell to a third party or buy the house from the trustee after the divorce.

An amendment to Section 8-205 of the Family Law Article of the Maryland Code gives the court the power to transfer ownership of real property from one party to another in absolute divorce cases filed after October 1, 2006; provided certain conditions are met:

1. The real property must be marital property and jointly owned by the parties (to be marital it must have been acquired during the marriage and not acquired by inheritance or gift from a third party; acquisition of the property with pre-marital funds may also preclude finding that the property is marital); and

2. The real property must have been used as the principal residence of the parties when they lived together; and

If those conditions are met, then the court can transfer ownership from one spouse to the other if the mortgage lender consents and the spouse getting the house obtains a release from the mortgage lender for the other spouse.

Alternatively, the court can issue an order authorizing one spouse to buy out the other on specified terms and conditions.

The court can still order the sale of the property to a third party. And the new law does not apply to limited divorces. Maryland now joins Virginia and DC courts, which also have the power to transfer title to real property in a divorce.

Strategy tip: If you still have a divorce case pending that was filed before October 1, 2006, and want to take advantage of the new law, you may be able to dismiss your case and refile it now.

6 replies
  1. James J. Gross
    James J. Gross says:

    You can ask the judge to place a time limit on the sale. Most orders I’ve seen give the parties thirty days to sell it themselves or the court will appoint a trustee to sell it for them.

  2. diane
    diane says:

    Are there any examples where the court has transferred ownership of the marital home? My almost ex and I had divorce hearing in March, and I think I can prove the disposition of marital assets. He has a home, and I have sole legal custody. He has backed out of other agreements and won’t sign to prolong case to run up my bill, yet he has no attorney. We have a hearing Oct. 21st. I think the home will go to a trustee and we will loose a lot, because getting him to agree on terms of a sale is unlikely to work. He refuses any phone call or speaking in person about such matters. If a judge can see this is a possibility, to preserve our equity, will he/she allow me to “buy him out” by forgoing shift of retirement funds. I have been told I should qualify for a refinance from my mortgage company.

  3. James J. Gross
    James J. Gross says:

    Yes, the courts have transferred ownership of the marital home in several cases since the new statute went into effect.

  4. diane
    diane says:

    Thanks for answering James. It went to spam so I am just now seeing this. Are you a lawyer, and can you cite any cases where the courts transferred ownership of the marital home? I’d appreciate any information you could give me.

  5. James J. Gross
    James J. Gross says:

    Diane: Yes, I’m a lawyer. So far as I know, the appellate courts have not issued any decisions concerning this law yet.

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