Do I have to sell my house in a divorce in Montgomery County?

Direct Answer

You are not legally required to sell your house just because you are getting divorced in Montgomery County, Maryland. However, if you and your spouse cannot agree on what to do with the home, a judge in the Montgomery County Circuit Court has the power to order a 'sale in lieu of partition.' This means the court forces the sale of the house and divides the money between you according to Maryland's 'equitable distribution' laws.

Key Details

Deciding what happens to your home is one of the biggest parts of a Maryland divorce. Because Maryland is an equitable distribution state, the court's goal is to divide property fairly, which does not always mean a perfect 50/50 split.

1. Marital vs. Non-Marital Property

Before the court decides if a house should be sold, it must determine if the house is 'marital property.' Under Maryland Family Law § 8-201, marital property is generally any asset acquired by either spouse during the marriage, regardless of whose name is on the deed.

• Marital Property: If you bought the house after your wedding day using income earned during the marriage, it is marital property.
• Non-Marital Property: If you owned the home before marriage or received it as an inheritance or gift specifically for you, it may be non-marital. However, if marital funds (like your paychecks) were used to pay the mortgage or for renovations, the house might be considered 'part-marital,' and your spouse could be entitled to a portion of its value.

2. Three Common Outcomes for the House

If you don't want to sell, you typically have three main paths:

• The Buy-Out: One spouse keeps the house by paying the other spouse their share of the equity. This usually requires the keeping spouse to refinance the mortgage in their own name to remove the other spouse's liability.
• Use and Possession: If you have minor children, a judge can award the 'custodial parent' (the one the kids live with) exclusive use of the home for up to three years after the divorce. This is designed to keep the children in a stable environment and familiar school district. After the three years end, the house is usually sold or one spouse buys the other out.
• Co-Ownership: While rare and often difficult, some couples agree to keep owning the home together for a set time (for example, until the youngest child graduates high school) and then sell it.

3. When a Sale is Forced

If neither spouse can afford to buy out the other, and there is no 'use and possession' order for children, the court often sees selling as the only 'fair' way to distribute the asset. A court-ordered sale is often less profitable because the court may appoint a 'trustee' to handle the sale, whose fees are paid out of your equity.

MD-Specific Laws

Maryland's divorce laws were significantly updated in October 2023. Here are the statutes and rules that apply to your situation:

• Equitable Distribution (Family Law § 8-205): The court looks at 11 different factors to decide how to split property. These include the length of the marriage, the age and health of the spouses, how much each person contributed (including non-financial work like being a stay-at-home parent), and the economic circumstances of each person.
• Residency Requirements (Family Law § 7-101): To file for divorce in Maryland, at least one spouse must currently live in the state. If the 'grounds' (the reason) for divorce happened outside of Maryland, one spouse must have lived in MD for at least six months before filing.
• Grounds for Divorce (Family Law § 7-103): As of 2023, Maryland has simplified its grounds. You can now get an 'Absolute Divorce' based on:
  • 6-Month Separation: You can live in the same house but must lead 'separate lives.'
  • Irreconcilable Differences: You simply no longer get along and there is no hope for the marriage.
  • Mutual Consent: If you and your spouse sign a written agreement resolving all property (including the house) and child custody issues, you can get a divorce quickly without any waiting period.

Montgomery County Local Context

If you live in Bethesda, Silver Creek, Gaithersburg, or anywhere else in the county, your case will be handled by the Circuit Court for Montgomery County, located in Rockville.

• Alternative Dispute Resolution (ADR): Montgomery County courts strongly encourage mediation. In many cases, the court will require you to attend a mediation session to try and reach an agreement on the house before they will give you a trial date.
• Filing Fees: The initial cost to file for divorce in Montgomery County is approximately $165, though this may change slightly year to year.
• Local Resources: The court offers a 'Family Law Self-Help Center' on the first floor of the South Tower in the Rockville courthouse. They can provide legal forms and basic information but cannot give you legal advice or act as your lawyer.

What You Can Do Right Now

1. Get an Appraisal: You can't decide whether to sell or buy out until you know what the house is worth. Hire a professional appraiser to get an unbiased value.
2. Check Your Mortgage: Call your lender to find out the exact balance on your loan. Also, ask if the mortgage is 'assumable,' which might make it easier for one spouse to take over the loan without a full refinance.
3. Gather Documents: Find your original purchase contract, records of any renovations paid for with personal (non-marital) money, and tax assessments.
4. Consult a Local Attorney: Because Maryland uses 'equitable distribution,' a lawyer can help you argue why you should get a larger share of the home or why you should be allowed to stay in it.
5. Draft a Settlement Agreement: If you and your spouse can agree on the house, you can use the 'Mutual Consent' ground to finalize your divorce faster and keep the court from making the decision for you.