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Thyden Gross and Callahan LLPCounselors and Attorneys at Law



Maryland Divorce Legal Crier

News and comments about divorce, child support, child custody, alimony, equitable property distribution, father’s rights, mother’s rights, family law, laws on divorce and other legal information in Maryland.

Archive for November, 2007

Sylvester and Amaryllis – Who Won?

Friday, November 30th, 2007

So what was the ultimate outcome in the case of Sylvester and Amaryllis? Recall in Harper v. Harper, 294 Md. 54 (1981), the Maryland Court of Appeals sent this case back to the trial judge with instructions on how to divide the land that Sylvester owned before his marriage to Amaryllis and the house he built on it during the marriage.

The land cost $355.00 and the house cost $21,600. By the time of divorce the property was worth $65,500.

The trial judge had concluded that, after 29 years, everything was marital property, and he just split it 50% to each. The Court of Appeals reversed and told the trial judge first to determine what was marital and what was non-marital, using the source of funds theory.

The next time around, the trial judge concluded that the lot was 59% nonmarital and 41% marital. The house, he found, was entirely marital property, because it was paid for out of marital funds, and so it should be split 50% to each. The judge said:

[b]ecause the marital residence was paid for entirely out of marital funds, it is also to be characterized entirely as marital property. Mr. Harper made mortgage payments and paid for upkeep from his salary during the marriage; no monies used for these purposes derived from gifts or inheritances to Mr. Harper. Notwithstanding Mr. Harper’s contention that his wife contributed virtually nothing, monetarily or otherwise, to the construction and maintenance of the home, the residence is marital property because all funds for its construction and upkeep were acquired during the marriage by other than inheritance or gift from a third party. See section 3-6A-01(3) of the Courts and Judicial Proceedings Article. Harper v. Harper, 58 Md. App. 193 (1984).

Yes, it went up on appeal again. This time the trial judge was upheld. After four years of litigation, and presumably tons of legal fees, Sylvester got 29.5% more of the value of the land (59% non marital portion plus half of the 41% of the marital portion compared to 50% before) and nothing more for the house (still 50% to each).

I wonder if either party thought it was worth it.

A Divorce Lawyer’s Thanksgiving

Wednesday, November 21st, 2007

If you are separated or in the middle of a divorce, it might be hard to think of anything to give thanks for in your life right now. So here is my list of things to be grateful for this Thanksgiving. Feel free to post your own grateful list in the comments section. I guarantee it will make you feel better to count your blessings.

I am grateful for:

1. My Family. I am grateful for my wife and our two sons. If you are not feeling grateful for your spouse right now, be grateful for your children. If you have never married or don’t have children, be grateful that you are not unhappily married or paying alimony and child support.

2. My Friends. Friends can support you and give you advice in a divorce. I lived in my friend’s house when I was getting a divorce. Remember your friends and send them a note telling them how much you appreciate them this Thanksgiving. Maybe they will invite you over for turkey.

3. My Career. I am doing something I love. I enjoy going to work and interacting with my colleagues and clients. I enjoy writing articles and educating people and helping people get through their divorce. Be grateful for your education, your experience, your skills, your business networks, your career success, your reputation and your ability to earn money.

4. My Home. Whether you are living in a mansion or what I called “my divorce condo”, you can make it comfortable and beautiful, a place of refuge, a sanctuary where you can get away from your troubles. Be grateful for your home.

5. Exercise. You can find me hiking on the bike trail every other morning from 6:00 to 7:00 am listening to music on my iPhone and on the racketball court every Saturday morning at 8:00 a.m. Be grateful that you have your life and your health, which at my age is relative, but be grateful that God gives you a new day every day and new experiences and new chances.

6. Computers and the Internet. The Internet is a cornucopia of ideas, information and friends. I use email, newsletters and blogs to communicate with my law firm, my clients and my friends. I have reconnected with childhood friends I have known for 50 years who live miles away yet we can talk everyday. I can listen to Elvis or the Beatles whenever I want. Our law firm runs on the Internet. We use the Internet for our legal research, timekeeping, billing and bookkeeping. Be grateful you live in the age of computers.

Last but not least, be grateful for your divorce lawyer!

Happy Thanksgiving.

Source of Funds Theory

Sunday, November 18th, 2007

When a husband pays for a property both before and after the marriage is it marital or nonmarital property in a divorce? ?It could be all nonmarital because it was owned before the marriage. Or it could be all marital as the trial court found in Harper v. Harper, 94 Md. 54; 448 A.2d 916 (1982).

The Maryland Court of Appeals looked at cases and theories in several other jurisdictions and decided that it was part marital and part nonmarital, concluding that:

The appropriate analysis to be applied is the source of funds theory. Under that theory, when property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part nonmarital and part marital. Thus, a spouse contributing nonmarital property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus, the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment.

In plain English, the Appellate Court was telling the Trial Judge to figure out how much the husband paid before the marriage and how much he paid during the marriage. Then calculate the percentage of each to the total. Finally, take those percentages times the equity in the property.

Let’s look at an example. A husband pays $50,000 before marriage and $100,000 during the marriage for a property. The total is $150,000. One third ($50,000/$150,000) would be his nonmarital property. Two thirds ($100,000/$150,000) would be marital property.

However, that’s not the end of the story. The Appeals Court sent the case back to the Trial Judge with instructions on the next step — to equitably distribute the marital property. We’ll talk about that, as well as what happened in Harper and other cases, in future articles.

The Case of Amaryllis and Sylvester Harper

Friday, November 16th, 2007

So let’s say you have almost a thirty year marriage but your husband owned your residence before the marriage and never put it in joint names. Is that premarital property so that he gets it all and you get nothing?

This was the question the Court of Appeals of Maryland faced in Harper v. Harper, 294 Md. 54; 448 A.2d 916 (1982). On 3 November 1951, Amaryllis M. Harper married Sylvester E. Harper, who owned a piece of land before the marriage. In 1967, they built a house on the land and lived there during the marriage. The husband made all the payments on the land, built the house and paid all mortgage expenses and upkeep for the house.

The couple divorced in 1989. The house and land had appreciated considerably during the marriage and the wife wanted half of the appreciation. The husband said she was entitled to nothing. The trial court found that the lot and the house were martial property and ordered them sold and the proceeds divided equally. In reaching this conclusion, the court said:

In making a determination of ownership of real property under the applicable statutes upon granting a decree of divorce, the Court is guided by several factors including the contributions, both monetary and nonmonetary, made by each party to the well-being of the family; the value of the property interests of each spouse; the circumstances contributing to the estrangement of the parties; the duration of the marriage; the age and physical condition of the parties; and how and when the specific marital property was acquired. In this case, it is true that the Respondent provided the bulk of financial contributions toward acquiring the real property in question, however, the Complainant, as a wife and mother of some twenty-nine (29) years, made substantial nonmonetary contributions toward the marriage and the family during the time the said real property was acquired. Furthermore, this Court notes that the estrangement of the parties stemmed from the Respondent’s cruel and abusive conduct toward the Complainant resulting in a divorce a mensa for constructive desertion. The length of the marriage in this case is considerable, spanning twenty-nine years of the parties’ lives. The Court has also weighed the other factors mentioned above and concludes that the real property in question is marital property in which each spouse is entitled to a one-half share. For this reason the Court shall order a sale in lieu of partition of the said real property with an equitable distribution of the proceeds as prayed for by the Complainant.

Sounds reasonable, right? But, not so fast said the Court of Appeals. You have skipped a step here. Dividing property is a three step process in Maryland. Before you can make an equitable distribution of property, first you have to determine which property is marital property, and then you have to value it. The Court of Appeals said that his property was acquired with both non-marital (the payments before the marriage) and with marital funds (the payments after the marriage). The property was not transmuted into all marital property as a result, but was part marital and part non-marital. The respective percentages would be determined by the Source of Funds Theory, which is the subject of our next article.

How to Avoid a Golddigger

Friday, November 9th, 2007

As Kanye West put it succinctly in the song Golddigger:

If you ain’t no punk
Holla’ we want pre-nup!

Marital Property and the Monetary Award

Thursday, November 8th, 2007

In property law, you can own property jointly, as tenants by the entireties, tenants in common, or individually. There is no such thing as marital property and non-marital property in property law.

Marital property is a creature of domestic relations law. I have sometimes called it “Alice in Wonderland Law”. The concept of marital property was

created by the legislature to describe the status of property acquired during the marriage, however titled, title to which may have given rise to a potential inequity, upon dissolution of the marriage. That inequity conceptually, may be corrected via a different legislative creature called the ‘monetary award.’ Thus, the only function of ‘marital property’ is to form a base for a ‘monetary award.’ Falise v. Falise, 63 Md.App. 574, 493 A.2d 385 (1985).

Maryland law provides for

an equitable monetary award which is designed to accomplish an equitable division in an indirect manner. Ohm v. Ohm, 49 Md.App. 392, 432 A.2d 1371 (1981).

Marital property is defined by statute as “property, however titled, acquired by one or both parties during the marriage.”

Non-marital property, on the other hand, is property acquired before the marriage; inheritance or gift from a third party; excluded by valid agreement; or directly traceable to any of these sources.

I have several cases now involving houses, businesses and stock that belonged to one spouse before the marriage but appreciated during the marriage. One spouse wants to trace all of the property to one of the non-marital exclusions. The other wants to prove all or some of the appreciation is marital property. This gets pretty complicated. I’ll be discussing some examples and trying to sort it all out in future articles.

The Museum of Broken Relationships

Thursday, November 1st, 2007

Coming to a city near you soon may be a traveling museum devoted to the theme of failed relationships.

The Museum of Broken Relationships, according to BBC News, has more than 300 exhibits donated by people in the cities it visits which are mementos of everything from short flings to painful divorces.

The show is the brainchild of Olinka Vistica and Drazen Grubisic, two artists in Croatia, who split up and said they wanted to do something creative with the pain they were feeling.

Originating in Croatia, the show has visited Bosnia-Herzegovina and Slovenia and has amassed more than 300 exhibits.

The museum is proving a hit because everyone can relate to it. The objects, such as a wedding dress and an axe used to break an ex’s furniture are displayed along with their story. The stories make the objects interesting.

For example, the description with the bicycle says, “I left on a scorching summer’s day – I thought going on foot or taking a tram would be incredibly stupid – so I got on the bike.”

Leave a comment about what you would donate to the museum.

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