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Property Division is an Essential Aspect of Divorce

There are essentially two types of property recognized in Pennsylvania for divorce purposes – Marital Property and Non Marital Property. Marital and Non-Marital property are defined in Section 3501 of the Pennsylvania Divorce Code. These definitions guide parties in what assets are subject to equitable distribution in case of a divorce. Marital and non-marital property are defined in 23 Pa. C.S.A. §3501 of the Pennsylvania Divorce Code. 

What is considered Marital Property in Pennsylvania?

Marital Property is property obtained during the course of a marriage from the date of union until the date of separation. It can include cash, bank accounts, vehicles, real estate, retirement plans, household goods and furnishings, pets and debt. Marital property can also consist of the increase in value of non-marital property during the course of the marriage.

For example, assume a Husband owns a house prior to marriage and it is valued at $100,000.00 with no mortgage. He marries and after 10 years of marriage divorce is filed and the house is now worth $200,000.00. The increase in value of the house ($100,000.00) may be considered property of the marriage. In this example, the non marital value held only by the Husband is $100,000.00 and the marital portion that may be subject to equitable distribution would also be $100,000.00.

What is considered Non Marital Property in Pennsylvania?

Non Marital Property is property obtained prior to a marriage, after the date of separation or property obtained through gift or inheritance during a marriage that is not co-mingled with marital property. Property obtained during a marriage by one party or the other may still be considered non-marital property in certain circumstances. Gifts and Inheritances may be excluded from being considered marital property if they are made to one party or the other only and if they are not then co-mingled.

Assume a marriage of 20 years. The Wife inherits $25,000.00 from her brother’s estate and shortly thereafter the parties divorce. If the Wife does not place the money in a joint account and keeps it separate, then the inheritance may be considered non-marital property even though obtained during the marriage. Conversely, if the Wife places the inheritance in a joint checking account or jointly held investment account, the money may then be considered marital property as it was co-mingled.

These are very basic examples and there are subtle variables that can create significant effects in how property is categorized. Generally, Pennsylvania practices Equitable Distribution of marital property meaning that marital assets are divided equally between both parties. There are exceptions to this general rule in cases of fault-based divorce.

Equitable Division of Property in Pennsylvania

The Equitable Division of property in Pennsylvania is governed by 23 Pa. C.S.A. §3502. It provides general guidelines on the factors to consider how marital property is distributed upon an equitable distribution claim as part of a divorce. In most instances, an agreement is reached between the respective parties on how to divide the marital property. If an agreement can not be reached, the case can go before a Judge or a Master to effectuate distribution of the property.

When an agreement cannot be reached between you and your spouse, a Court proceeding can be held before a Judge to decide how to divide your property. This can be a much longer process that necessitates the preparation of inventories, pre-trial statements, and testimony. It may also require expert reports or testimony as well.

If the case goes before a Master or Judge, the evidence will be considered using the factors described in Section 3502(2) of the Divorce Code and a decision will be rendered on how the property is to be divided. When a Judge or a Master makes a decision, the parties “lose control” of how the property is to be distributed. This is not always ideal, but may be necessary in some cases.

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