Marital Property: Do I have to share my property with my spouse when we divorce?

[Part 1 of a series regarding marital property, division and divorce]

When you get a divorce in Pennsylvania, the law requires that the property acquired during the marriage will be divided “equitably” between you and your spouse. According to the Divorce Code, at 23 Pa.C.S.A. §3501(a), marital property is defined as “all property acquired by either party during the marriage and the increase in value of any nonmarital property. . . ” The Court will presume that everything that was bought or acquired during the marriage belongs to both parties, “regardless of whether title is held individually or by the parties in some form of co-ownership …” This includes real estate, personal property and intangible assets such as retirement and other investments.

A husband or a wife may ask the Court to treat certain assets as nonmarital, or ‘separate property’ in certain circumstances, including when it is “property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.”[1] Pre-marital assets such as these may be awarded to the individual spouse that owned them before the wedding. There are other circumstances in which it may be seen as “equitable” or fair for the Court to consider an individual’s property to belong to just one spouse, and when the divorce is final, the parties have “complete freedom” to keep or dispose of their separate real and personal property as they choose.

There are many factors that the Court considers when deciding which assets are “marital property” and which ones are the “separate property” of just one individual. These factors include, for example, when the property was a gift to one spouse or when the property was obtained by a spouse following the couple’s final separation. Once the Court distinguishes between marital property and separate, individual property, the Judge must decide the value of all assets and the effect of associated debts when dividing the couple’s property in a final divorce decree.

In future articles in this series regarding divorce and property division, we will discuss the methods Courts use to establish an “equitable” division of property and the effect of premarital agreements (also known as antenuptial agreements) on a Court’s discretion.

If you have questions about how the Court may divide the marital and nonmarital property of you and your spouse, or if you need help in understanding how to protect your own assets, you can call an experienced divorce lawyer at the Mazza Law Group, P.C. for advice and assistance.

Marital Property:

[1] 3501. Definitions.

(a) General rule.–As used in this chapter, “marital property” means all property acquired by either party during the marriage and the increase in value of any nonmarital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.1). However, marital property does not include:

(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.

(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.

(3) Property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property.

(4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.

(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.

(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958 (Public Law 85-857, 72 Stat. 1229), as amended, except for those benefits received by a veteran where the veteran has waived a portion of his military retirement pay in order to receive veterans’ compensation.

(7) Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separation.

(8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

Marital Property: Do I have to share my property with my spouse when we divorce? was last modified: May 27th, 2016 by Judith Homan