In Maryland and the District of Columbia, when people are getting divorced the law provides for the “equitable” distribution of their marital property. Statutes in both states provide a list of factors to be considered in determining what is equitable. The length of the marriage, the financial condition of each party, contributions to the marriage (monetary and nonmonetary), each party’s age and health, are among the factors to be considered.

But what does “equitable” mean in reality? The fact is that in most cases, the marital property will end up being divided equally. Judges recognize that people make all sorts of compromises during a marriage in order to best support the marriage and family.

For example, one spouse might take a lesser paying job in order to be more available for the children. One spouse might have to give up a job they love in order to move across the country for the other spouse’s big promotion. It is frequently the case that one spouse is more of a spender and the other is more of a saver, one does more of the child care or housework, one earns more—there are any number of patterns that develop over time in a marriage that have implications for the accumulation of marital property.

Sometimes people think these patterns should entitle them to more of the marital property. It is important to understand that judges are usually loath to assign more value to certain contributions over others. They also do not typically want to effectively reward or punish one party for the role they had during the marriage or for perceived financial transgressions that occurred over a long period of time. The general presumption is that whatever marital property people accrue during the marriage will be divided equally unless there are extraordinary circumstances.

Most cases are resolved by settlement agreement rather than court decision, but the expected court result is considered a guide for reaching a settlement agreement. So, when might a division of assets not be equal? In nearly 34 years of practice as a family lawyer, I have not seen it many times. If one party is independently wealthy from inheritance or premarital assets, and there is not much marital property, the other party may receive more of the marital property, since otherwise there would be a very lopsided result—this is particularly true if the marriage has continued for multiple decades. If one party has wasted substantial marital assets (through spending on extramarital activities or gambling, for example), the other party might receive more of the marital assets.

I once had a case in which the judge awarded my client the house and all of her pension (earned over 20+ years of marriage) because her husband had not worked in 15 years, despite being a lawyer, and also refused to meaningfully contribute to the care of the children and household. The court found that the contributions of the parties were so out of balance, and the husband’s contributions were so small, that he should not receive an equal share of the assets accumulated as a result of the wife’s hard work. Not every judge would have seen it that way.

Given how extreme the circumstances need to be to result in a division of marital property that is not equal, parties who want more than half of the assets need to carefully consider both the likelihood of success and the cost of going to trial. Unless the amount in dispute is large enough to justify both the risk and the cost of going to trial, a settlement agreement is probably the better option. It does not make sense to spend more on a trial than you are reasonably likely to obtain in court.

Before deciding whether to go to trial seeking more than half of the marital property, ask your attorney for a detailed trial budget. It is important to evaluate how the cost of a trial compares to what might be gained if the court grants the request for more than half of the marital property. And it is important to understand the specific basis for the claim that one party should receive more than half of the marital property. Unless there is a very compelling reason, the court is unlikely to do anything other than equally divide the marital property, and the cost of a trial can make it a losing proposition.

For more information please contact Meg at (301) 841-2434 or mjmckinney@lerchearly.com.