Division of Property in Pennsylvania Divorce
How property is divided during a divorce is up to the specific laws of each state. There are different terms used to describe this process, from “equitable division” to “property division.” There is a stereotype that, upon divorce, you lose half of your possessions. While this does have some basis in reality, things are much more complicated than splitting everything in half.
If you considering filing for divorce in Pennsylvania, one of the hardest parts may be figuring out how to fairly divide your assets between the parties. Especially in difficult divorces or high asset divorces, this can become the main battleground between parties. It is important to go through this process with an attorney you can trust to protect your property and your needs. The lawyers at the Sadek and Cooper Law Offices fight for their clients’ rights to help them get the outcome they want.
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What is the “Marital Estate”?
Each state is allowed to choose the method by which it divides property when a couple gets divorced. Many states in the Western US use a “community property” regime to divide their assets, but often have strict rules requiring property be split 50/50. Pennsylvania is a bit different.
All property in a PA marriage is classified either as “individual property” or “marital property.” The general rule that helps couples, lawyers, and divorce courts understand what property belongs in which category is that any property acquired during the marriage is marital property. Any property that either party owned before the marriage is individual property, which they keep after divorce.
Under 23 Pa.C.S. § 3501(a), any property acquired by either party during the marriage is marital property, as well as any increase in value of individual property. This means that if a man owns a classic car worth $65,000 when he gets married, and it is worth $75,000 when he gets divorced, the car itself will remain his individual property, but that increase in value of $10,000 will be marital property.
Marital property specifically excludes certain categories of property under § 3501(a), namely:
- Property acquired before marriage
- Property excluded from marital property according to a prenuptial agreement
- Gifts or inheritances from third parties to either spouse
- Property acquired after separation, but before the divorce is finalized
- Property sold during the marriage
- Veterans benefits
- Property that was mortgaged for value during the marriage
- Any damages for a lawsuit based on events that occurred before the marriage
Note that the rule that designates gifts from third parties as individual property also points out that gifts given between spouses are marital property.
When we say “property acquired during the marriage is marital property,” we are actually only talking about property acquired between the date of marriage and the date of final separation. Often, couples are legally separated while filing for divorce, and they are still technically married until the final decree of divorce is granted. Any property gained after the date of separation but before the divorce is finalized is not acquired during the marriage, and is individual property.
How is Marital Property Divided?
Any property that fits into the pool of “marital property” is available for division. Any property that remains the “individual property” of either party is theirs, and is not divided during divorce. In Pennsylvania, unlike other states, there is no automatic presumption that the property will be divided 50/50. In many cases, it is close to 50/50, but the method of arriving at that split is very different.
In Pennsylvania, marital property is divided “equitably.” Equitable generally means “fair” – but certainly does not mean “equal.” 23 Pa.C.S. § 3502(a) states that property should be divided equitably “without regard to marital misconduct.” This means that cheating or abuse is not a factor in the division. § 3502(a) goes on to list the following factors, which help a court decide what percentage of the property each party should receive:
- The length of the marriage
- Any prior marriages
- “The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties”
- One party’s contribution to the other’s “education, training or increased earning power”
- Future ability to gain assets and income
- Sources of income for each party
- Each party’s contribution to building the marital property, including work as a homemaker
- The value of each party’s individual property
- The standard of living established during the marriage
- Each party’s economic circumstances after divorce (including tax consequences and the expense of dividing and liquidating property)
- Whether a party will have custody of minor children
When dividing the property, there are plenty of things your lawyer can help with. If neither party is particularly attached to specific items, much of the property can be sold off (liquidated) and divided as cash. More often, each party has particular items they want to keep. Only the value needs to be divided equitably, so it is up to the parties to determine who gets which items, and which items of equal value they give up in exchange.
Finally, parties can agree to the specific division plan. This can be done with a prenuptial agreement before the marriage even starts. Alternatively, a postnuptial agreement can allow the parties and their lawyers to decide who gets which items instead of letting the judge decide.
How Does a Pennsylvania Family Court Make Child Custody Determinations?
Whether you and your child or children’s other parent are married and going through the complex process of divorce, or if you barely have any contact with the other parent at all, it is important to understand your rights with respect to child custody. Under Pennsylvania law, child custody is broken down into two distinct parts. It is crucial that you, as a parent understand the difference between physical custody and legal custody.
Physical custody is what most parents think of when they think of child custody. It is basically exactly what it sounds like. A parent that is granted the right to have physical custody of your child is the parent the child lives with and physically spends time with. When a child’s parents do not both reside in the same household, there is a question as to which parent will have physical custody and when. In Pennsylvania, physical custody can be held by one parent or shared by both parents.
Legal custody describes one or both parent’s ability to make important life decisions for the child. These life decisions may include the type of education the child will receive, how the child will be raised if he or she will be raised in a certain religion and many other important aspects of the child’s life. Legal custody also comes with the responsibility to make important medical and financial decisions for the child.
Pennsylvania Divorce Attorneys
If you are considering a divorce, it is important to have an attorney on your side who will fight for your property rights and fair treatment. The divorce lawyers at the Sadek and Cooper Law Offices put our clients’ rights and concerns first in every divorce proceeding. To schedule a free, confidential consultation with our lawyers, call 215-814-0395 today.