If you are getting divorced in Pennsylvania, do you know what property you get to keep and what you have to split with your spouse? What about who's responsible for your marital debt?
When facing the task of dividing property at the end of your marriage, it may not be your first instinct to negotiate directly with your spouse. However, it is usually worth the effort to work together on a marital settlement agreement – a written document that tells the court how the spouses want their property divided between themselves. If you can’t work with your spouse, or if there are certain assets that are in dispute, then the court will distribute the property for you based on a system called equitable division.
Equitable division means that the property will be split between spouses in a way that is equitable. The court decides what’s equitable, or fair, based on a set of factors designed to show the complete picture of how each of you contributed to the marriage (and how you may have harmed it) and what each spouse will need to move forward after divorce. The division does not have to be equal to be considered fair.
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to you or your spouse separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage. Non-marital property is property you owned before marriage or acquired after the date of your separation. Under certain circumstances, it could also include property that you get during marriage like a gift, an inheritance, or among other things, property that you got in exchange for your non-marital assets and kept separate during your marriage.
For example, if you sell the farm you had before marriage and use the money to buy a condo in town, which you rent out to tenants, then the condo and its income will likely remain your property alone. If, however, the value of your condo increases during marriage – either because of the work you put into it or just because you were savvy enough to buy in an up-and-coming neighborhood – then the court will characterize the increase in value as marital property.
In Pennsylvania, only the marital property will be divided. The court presumes that any property you acquire during marriage is marital property, regardless of what title says. If you want to keep an asset out of the division, then you will have to show the court why it should be characterized as non-marital property.
The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, benefits, and even debts. At divorce, debts are treated the same as any other property. Before dividing a debt, the judge will have to characterize it as either marital or non-marital based on when it was acquired, who acquired it, and how it was used. If the debt can’t be excluded from division as the non-marital liability of either spouse, then the court will apply the factors below to assign responsibility for it.
The court considers several factors in deciding how to split the marital property equitably. These factors include the length of your marriage, the amount of marital property, and how each of you either contributed to the acquisition and improvement of the marital property or dissipated (reduced) marital assets. Contributions as a homemaker count the same as any monetary-based efforts. To better understand each of your needs in becoming self-sufficient after divorce, the court will also look at each spouse’s age, health, income sources, debt, separate property, and employability. Additionally, the court will evaluate the standard of living you enjoyed during marriage, what your economic circumstances will be at the time of division, and taxes.
Causing the marriage to fail by having an affair or otherwise behaving badly does not, on its own, count against you in the property division. It is a factor for alimony, however, and your spouse may receive a larger share of the property if you wasted marital assets when carrying out your affair or other bad act.
Also, if you are worried that you won’t have access to certain marital funds or property while other assets are in dispute, you could ask the court at any time for a partial distribution. You can’t, however, try to sell or mortgage or otherwise encumber property while waiting for it to be divided or even in anticipation of divorce. That’s fraudulent, and a court can either void the transaction or, if it hasn’t happened yet, order an injunction to keep you from dissipating the property.
Alimony is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the one enjoyed during marriage. In Pennsylvania, the court will evaluate your need for alimony based on many of the same factors above. Other factors include the contribution to one spouse’s education and earning power, and any marital misconduct before the date of separation, unless there has been abuse; that will count at any time. Although the court has wide discretion in what to award, any order to pay alimony must be reasonable in light of your needs and your spouse’s ability to pay.