Divorce: Who Gets the House? The Debt?

The question of how marital property is divided is the most litigated area in divorce law and generally the reason that divorce proceedings can go on for years. Equitable Distribution is the name of legal process used to divide the marital estate.

Attorney Michele L. Kluk practices Family Law

As tempting as it may be to compare your situation with the experiences of friends and family, Equitable Distribution is a complex area of the law, and is always changing and evolving. For every general rule of thumb, there are several exceptions. Legal advice on your situation should come from an attorney, not a well-meaning friend or relative. Especially when it comes to family law, under which divorce falls, a resolution depends heavily on the unique facts in a case. Therefore, your case is highly unlikely to be the same as any other and calls for professional legal guidance – not tips from friends.

An explanation of Equitable Distribution can be simplified when described in three steps. The first step is identifying what is marital and what is not marital property. The second is establishing the value of the marital property. In the third step, the equitable division of property will be determined. A divorce lawyer will help you navigate this three-step process, and his or her legal representation will allow you to offload the stress onto a professional trained to handle property distribution.

Identifying marital and non-marital property.  The general rule is that anything acquired from the date of marriage to the date of separation is considered marital property.  As stated above, however, there are always exceptions. Some property acquired during the marriage will be ineligible for division; at the same time, some non-marital property will have a marital property component. Never assume that a portion of property is marital or non-marital. You can assist your attorney in preparing for Equitable Distribution and improve your chances of a balanced distribution. Make a list of all property. Your list might look like this: home at 123 Main Street; vacation home at 345 Fun Drive; a 401(k); savings accounts; 2012 SUV; stocks; and any other property. Don’t forget to list debt as well. Just like assets, all debt will be identified as marital or non-marital. List loans, mortgages, credit card balances, and lines of credit.

Valuing the property.  This is done through a combination of the following: agreement of the parties, appraisals, statements, and documents. Once you are thinking of filing for divorce, it will save you money and time to begin collecting statements and organizing pertinent documents. The date of separation is an important date for most statements, and is a good place to start for other property. Give your attorney bank statements, credit card statements, mortgage documents, deeds, any appraisals, and any retirement statements.

Dividing the property.  Pennsylvania law requires that property be divided equitably, which is not the same as dividing it 50/50. Often, the parties can come to an agreement on a division. However, if an agreement cannot be reached, the division will be determined by a Divorce Master. In Pennsylvania, the Divorce Master is appointed by the county court. The Divorce Master considers 11 factors when making an Equitable Distribution decision. Again, you can save money by providing your attorney with a list of the property and supporting documents along with income and expenses, pay stubs, and tax returns.

Whether you are thinking of filing for divorce, or just received a divorce complaint filed by your spouse, there are complex issues to consider in dividing property. Gathering and organizing property files is important in obtaining the right legal advice for your situation. It also helps your attorney fight for the best distribution for you.

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