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When a couple gets married and moves in together, each spouse brings certain property with them: cars, bank accounts, sometimes even a home. Over the years of the marriage, they gather more together. What happens when the couple separates and eventually gets a divorce? How do judges divide property in a Pennsylvania divorce?
The first step in dividing property in any divorce is to determine which property gets divided. Pennsylvania family court judges will distribute a couple’s “marital property” between the parties, but not their “separate property”.
Marital property means everything either party gathered from the date of the marriage until the date of final separation, unless it falls into a specific exception. Separate property includes anything either party brought into the marriage (along with anything exchanged for that property), obtained after the couple’s final separation, and items that fall into those exceptions:
Anything that qualifies as separate property automatically goes to the person who brought it into the marriage or received it. Whatever is left is marital property to be divided by the court.
Once the court decides which assets count as marital property, if either spouse requests it, the court must divide those assets between the parties. Pennsylvania law requires an “equitable division” of marital property. That means that the judge must divide the parties’ property based on a fair and just percentage regardless of fault. In deciding what those percentages will be, the court can address everything together, or it may group assets and divide each group. The appropriate percentages depend on several factors:
Every family is different, so no two property divisions will be entirely the same. However, some property division issues come up in many Pennsylvania divorce cases:
Retirement assets like pensions, 401k accounts, and IRAs often make up a large portion of a family’s assets. Making sure each party gets a fair and just percentage can be challenging. This is especially true since retirement accounts often include premarital and post-nuptial funds in the same account, and because withdrawing assets from these accounts before retirement can come with hefty penalties. Your Pennsylvania divorce attorney can help you prove the proper amount of the premarital portion -- including its growth over time -- and account for the costs you might incur because of the division. You may also be able to propose a division of property that minimizes these costs, offsetting one spouse’s share with other assets.
Depending on the size of your mortgage, the family home can often be a high-value asset to be divided by the court. Unlike retirement assets, dividing a piece of real property isn’t as simple as awarding a dollar value to each party. The court must consider which party will live in the home as well as who can afford to pay the home’s expenses and possibly buy out the other party’s share of the equity. Often, this gets complicated by child custody issues as well. It is usually in the children’s best interest to stay in the home and school district where they were raised. When the primary caregiver can’t afford to maintain the home on their own, it can create challenges for the court. It will be up to the judge to fairly and justly assign the family home and its equity, while making sure the mortgage and home equity loans are taken into account.
Finding an equitable division of property in a divorce involves clear accounting and creative thinking. At Berman & Associates, our experienced Pennsylvania family law attorneys know how to craft a property division settlement that takes into account fairness and practical realities. If settlement is impossible, we will help you prove your case, so that you receive what is fair and just from the judge. Contact us to speak with our divorce team and see how we can help with your family law matter.
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