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Ask the Attorney: Dividing Marital Property

Q: My spouse and I have been discussing the possibility of divorce, but I am worried because we have a good deal of shared property. How do we divide everything if, in fact, we follow through with the divorce?

It is almost always simplest and cheapest for divorcing spouses to divide their marital property by negotiating and signing a marital settlement agreement, ideally with the help of a skilled divorce attorney. 

Some couples, however, are unable to come to terms amidst the often emotional backdrop of a pending divorce. For these couples, there is a process overseen by the courts known as equitable distribution.

Equitable distribution means a court-ordered division of marital property according to whatever the court decides is fair and just under the circumstances. Courts have broad discretion in deciding which spouse gets what property, and each side must present evidence to establish why they should receive what property they want.

Equitable distribution only deals with the division of marital property, and not all of the property owned by a divorcing couple is necessarily considered marital property under the law.  

Generally, anything acquired by either spouse during the marriage is presumed to be marital property. This typically excludes any property procured individually by either spouse before marriage.  B

ut if a spouse’s pre-marital property increases in value during the marriage, both spouses own that increase in value equally. Aside from property acquired before the marriage, property received by one spouse as a gift, through a will or in an inheritance is also not considered marital property. 

However, gifts given between the spouses themselves are marital property. 

Courts divide marital property according to a number of factors, without regard for any alleged marital misconduct, such as adultery or abuse. 

The relevant factors include the length of the marriage, any prior marriages of the spouses, each spouse’s age, health and ability to earn a living on their own, whether one spouse contributed financially to the training or education of the other, each spouse’s sources of income, and each spouse’s contribution to the increase or decrease in value of all marital property over time, including by homemaking. 

Court orders determining equitable distribution are final, and upset spouses must swallow their disappointment and comply with them. 

Courts have broad powers to enforce these orders, along with breached marital settlement agreements, including authorizing the seizure of property, attaching wages, awarding costs and attorney’s fees, and finding the offending party in contempt of court. 

Because of this, the stakes can be quite high and anyone who is facing the prospect of equitable distribution should seek and retain legal counsel.

(This article is intended as a discussion of legal topics that are often confusing to many lay people; it is not, and should not be relied on, as legal advice. Attorney Jesse White is licensed to practice solely in Pennsylvania and any information discussed relates solely to Pennsylvania law. If you feel have a question for the attorney, contact The Law Office of Jesse White in Cecil at 724-743-4444 or visit www.jessewhitelaw.com.)

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