If I get divorced, will I automatically get half of the property?
In my house, if there is one piece of pie left, and two people who want it, we cut it down the middle. The Pennsylvania Divorce Code isn’t so simple: property is divided on the basis of “equitable” distribution. Equitable is a lawyer’s word for fair, and that may or may not be a 50-50 split. There are some obvious reasons for this: 50-50 may not be fair if the spouse’s circumstances are different. To use the pie example, suppose that one family member has already eaten the bulk of the pie, and the other hasn’t had a single piece.
Factors Affecting Equitable Distribution of Property
Rather than leave it totally to a Judge’s discretion, the Pennsylvania legislature included in the Divorce Code a list of 13 factors which should be considered. The factors determining how property is divided include the length of the marriage, the financial situation of each party, including their sources of income and opportunities for future acquisition of property, whether a party has custody of minor children, and the contributions of each party to the acquisition of marital property, including the contribution of a party as homemaker.
One factor that is not supposed to be considered is which party was at fault in causing the marriage to end. This is consistent with the purposes of Pennsylvania’s no-fault Divorce Law, which include a desire to “(g)ive primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.”
How Property Rights are Decided in a Pennsylvania Divorce Case
If the only asset the parties have is money, dividing the property is fairly easy. In many cases this doesn’t work well. Sometimes, the largest asset is the marital home. You can’t cut this in half. In some cases, the home is sold. One spouse might be given the opportunity to buy out the other. If children are involved, there are times when the sale is delayed, to allow the children to remain in the home for some period of time.
When one, or both parties owns a pension, there are several choices. If there are other assets, the other spouse might be given some or all of those assets, in order to offset the value of the pension. If a part of the pension is being divided, the Divorce Decree might include a special order, known as a Qualified Domestic Relations Order (QRDRO), which could require that a portion of the pension be paid to the other spouse.
What Happens to Debts in a Divorce?
If either or both parties have debts that have been incurred during the marriage, a Divorce Court should take these into consideration. Sometimes the debt partially offsets assets: for example, if a house or car has been financed, the value is based on the difference between the value, and the payoff on the loan or mortgage.
If the debt is joint, and one spouse is supposed to pay it, the other party should know that this does not mean that the creditor has released them. If the debt isn’t paid, they may be liable for the debt, or have their credit affected. With mortgages, this problem can sometimes be avoided at the time of the Divorce, either by re-financing the home, or obtaining a release from the bank.