What is "Marital Property"?
Marital property includes real estate and personal property such as bank accounts, stocks, automobiles, retirement plans, furniture, art and jewelry. The general rule is that all property acquired during the marriage is marital property and is subject to equitable distribution. Click here to read the statutory definition of marital property, and click here to read the factors a court will consider in equitable distribution of property.
What is "Non-marital Property"?
There are exceptions to this rule, such as gifts to one spouse and inheritances received by one spouse, unless these assets are placed in joint names. Property owned by one spouse before the marriage and property acquired after separation is usually considered non-marital property and is not subject to equitable distribution.
What happens to our debts when we divorce?
Most people have at least some debt during their marriage. Mortgages, car loans and credit card debts are the most common types of debt you must address. These debts are usually in the names of both spouses, so both are responsible for paying the debt. If the couple cannot decide how to divide their debts, the court will schedule a hearing to decide how to divide the debt.
Shouldn't we just divide everything down the middle?
Sometimes an equal division of your property and debt is fair to both spouses. In other situations, an equal division may not be fair to both spouses. For example, if one spouse stayed home to raise the children, and the other spouse climbed the career ladder and has a good income, an equal division might not be fair. The Pennsylvania Divorce Code lists many factors a court must consider when deciding how to divide marital property.
My pension from my employment is my separate property, isn't it?
No. If you acquired any part of your pension during the marriage, that portion is marital property and must be shared with your spouse when you divorce. The same is true for your company 401(k) plan, stock plan, stock options, deferred compensation and other retirement incentives. You may be able to trade off other assets if you want to keep these assets intact. For example, you may bargain to keep your pension in exchange for a larger cash distribution to your spouse, or longer alimony.
My spouse and I have a prenuptial agreement. Does that control our property division?
In most cases, a prenuptial agreement will be enforced in Pennsylvania, as long as it was valid in the state where it was signed by the two parties. In Pennsylvania, a prenuptial agreement is valid if it meets two tests: first, the parties must have made a full and fair disclosure of their assets at the time of the marriage. Second, there cannot be any fraud, duress or coercion on one party to sign the agreement.
The Pennsylvania Divorce Code controls all aspects of your divorce. If your prenuptial agreement does not cover a right which is available to you under the Divorce Code, you may still be able to assert those additional rights.
You should rely on the advice of an experienced family law attorney who can review your prenuptial agreement with you.