Can I protect my assets from my spouse while we’re separated? I read I could get a waiver of marital rights to property. Is this a real document that my husband can sign?

ANSWER

In Maryland, marital property is all property acquired during the marriage regardless of how it is titled. Therefore, a vehicle titled solely in one spouse’s name that was purchased during the marriage would still be considered marital property. Other assets, such as retirement accounts, could be considered “partially marital” if a spouse contributed to a defined contribution plan (such as an IRA or 401(k)) prior to the marriage and during the marriage. If one party contends that a portion of an asset is pre-marital, they bear the burden to prove how and in what amount the asset is pre-marital.

Marital property continues to accumulate up until the date of divorce — therefore, property acquired during the separation is still considered marital property under the law. There are some exceptions to marital property which include: pre-marital assets, gifts from third parties (so long as the gift is solely to you), inheritances, and exclusions by valid agreement.

You and your spouse can execute a written, signed agreement, indicating you’re waiving any interest in property that each of you have acquired since the date of your separation. If you are able to agree on how all marital property will be divided, you can include all of this in the agreement. If your written, signed agreement resolves all of the issues (such as property, alimony, custody, etc.) you would be eligible for an absolute divorce on the grounds of mutual consent. Mutual consent does not require the parties to be separated for one year and therefore streamlines the divorce process. Depending on the jurisdiction, if you file for a divorce on the grounds of mutual consent you can typically be divorced within sixty (60) to ninety (90) days. However, if you are only able to agree that any property acquired after the date of your separation will be each of your respective sole and separate property, you would be limiting the issues for the Court to decide. Without such an agreement, all property acquired up until the divorce is considered marital.