1) What factors are considered by the Courts in Pennsylvania in determining an equitable distribution of marital property upon divorce?

2) How does spending marital moneys, before spousal separation, maintaining a separate apartment, sexual partners and lifestyle impact upon the equitable distribution?

GENERAL RULES

Property division or "equitable distribution" can only be made at or after the time of the entry of divorce. Equitable means fair, not equal. Marital property is subject to equitable distribution or division. "Marital Property" is defined as property acquired between the date of the marriage and the date of the separation. It also includes property acquired after the separation date with marital funds or assets.

3) What parts of pensions are marital property?
Pensions acquired between marriage and separation are usually considered to be marital property. Only the percentage of the pension actually acquired during the marriage is marital property. Some disability pensions, even if acquired during the marriage, may be non-marital property.

Some other types of property acquired during the marriage are not marital property subject to equitable distribution or division. Most gifts and inheritances that a spouse receives during the marriage belong to that spouse.

4) On what date are assets valued for division between the parties?
The general rule declares that assets should be valued at the time that they are divided between the spouses. However, the Court has discretion to select any fair valuation date.

5) How is marital property defined in Pennsylvania?
Marital property is defined by statute § 3501 as:

(a) General rule.-As used in this chapter, "marital property" means all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any nonmarital property acquired pursuant to paragraphs (1) and (3), except:

(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.

(3) Property acquired by gift, except between spouses, bequest, devise or descent.

23 Pa. C.S.A. § 3501(a).

Furthermore, the factors to be considered, and the impact of marital misconduct on the equitable distribution is addressed as follows:

6) What are the relevant factors in determining how marital property shall be divided?
Equitable division of marital property is defined by statute § 3502:

(a) General rule.-In an action for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors, including:

1. The length of the marriage.
2. Any prior marriage of either party.
3. The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
4. The contribution by one party to the education, training or increased earning power of the other party.
5. The opportunity of each party for future acquisitions of capital assets and income.
6. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
7. The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
8. The value of the property set apart to each party.
9. The standard of living of the parties established during the marriage.
10. The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
11. Whether the party will be serving as the custodian of any dependent minor children.

23 Pa. C.S.A. § 3502(a)(emphasis added).

7) Is marital misconduct considered in property division?
Generally, marital misconduct occurring during the marriage is not to be considered in determining the equitable division of property. Perlberger v. Perlberger, 426 Pa. Super. 245, 261, 626 A.2d 1186 (1993)(marital misconduct may not be considered by court in determining order of equitable distribution).

Similarly, in Witcher v. Witcher, 433 Pa. Super. 14, 639 A.2d 1187 (1994), the Court held that marital misconduct was not to be considered in the equitable division of property, although it is a factor for consideration in determining alimony under 23 Pa. C.S.A. § 3701(b). However, in an earlier case, La Buda v. La Buda, 349 Pa. Super. 524, 503 A.2d 971 (1986), the Superior Court found that the master had not improperly considered the appellant's marital misconduct in equitably distributing the marital property, saying:

Equitable distribution is to be done "without regard to marital misconduct." 23 P.S. § 401(d)[repealed, now § 3502(a)]. Here, the master mentioned appellant's "extramarital affair" only in the context of computing appellant's dissipation of marital assets. See Master's Report at 29-30. Thus, such misconduct was not a factor in the master's recommended distribution of the marital property other than as it related to appellant's dissipation of marital assets. Id. at 540.

8) How would you summarize this?
Under the applicable statute, the factors for determining the equitable division of marital property may not include marital misconduct occurring during the marriage. However, La Buda suggests paradoxically that although marital misconduct is not to be considered in an equitable division of property, it may be considered in evaluating another of the factors, dissipation of marital property.