If you or your spouse recently filed for divorce, a discussion regarding the division of property is upcoming. States have differing laws when it comes to dividing property and the application of those laws can differ depending on the case as well. Have you taken the time to become informed when it comes to Pennsylvania property laws?
Community Property or Not?
All property obtained during the marriage is marital property and spouses must divide it upon divorce. Some states consider all property owned by the couple, regardless of who acquired it or when, as community property – in community property states, spouses jointly own all property. States with community property laws typically allow a judge to determine the division of the community property he or she determines fair and equitable.
Pennsylvania is not a community property state. In fact, community property law is invalid under the state constitution. For this reason, property in Pennsylvania falls under one of two categories – separate property and marital property.
Separate property is all property owned by one spouse or the other. More specifically, property purchased before the marriage qualifies as separate property, as does property given as a gift or bequest. Although a little more difficult to prove, separate property also includes property purchased after the marriage with money earned before the marriage.
Privately owned businesses may fall into separate property as well. Typically, courts use the source of the value of the business to determine this. For example, if one spouse conceived the business concept and the value is in its revolutionary ideas, the business is separate property. However if the spouse also contributed to the running of the business and added the majority of value to the business, it is probably marital property.
Marital property is every monetary asset and property item acquired during the marriage, excepting those listed above. In Pennsylvania, spouses divide marital property in a way that is fair and equal. Often, property division presents an issue during divorce proceedings when spouses cannot agree on how to divide the property.
Equitable Division of Property
In order to avoid continuing disagreements regarding property, Pennsylvania courts attempt to achieve equitable division of property. To that end, most attorneys recommend working with your spouse in order to draw up a settlement agreement that works for both of you, rather than haggling over individual items in court.
If you remain unable to divide your property without issue, the court will decide what is equitable. Since this does not always mean a financially equal division, the courts consider several important factors.
- Your contributions to the marriage
- Things you did to harm it
- Incomes and liabilities for each spouse
- The duration of the marriage
- Age and health of both spouses
- Expected pension or retirement
- Each person’s ability to provide for themselves
- Certain other factors
What Should You Do?
Before entering into the division of property, determine which pieces are marital property and which are separate property. Prepare to prove property purchased during the marriage is, in fact, separate property with proof you purchased it with assets you acquired before the marriage or those that you inherited during the marriage. When you consider factors such as contributions to the marriage, keep in mind that courts consider intangible contributions such as childrearing just as much a factor as wages from a job.
The process goes much more smoothly if you and your spouse are able to come to an agreement before the divorce proceedings begin. If not, you may have less control over the distribution of your property. While you wait, do not attempt to sell any marital property, prohibit your spouse from accessing marital funds, or freeze marital assets like credit cards. Most importantly, speak with a divorce attorney to help you begin determining your rights regarding the division of property.