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Divorce in Pennsylvania

February 14, 2012

2. Law

Divorce in Pennsylvania

The best word I can find of how the law views divorce is this:  Sterile.  Divorces are nothing more than dissolving a corporation – a unity of two people that have assets and liabilities under joint ownership or control, and henceforth those assets and liabilities need to be under both separate ownership and control.  Yes, it can be complicated, but it is what I guess I’ll call “legal accounting.”

Here’s the operative wording: Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors.

There’s two things to draw out … in reverse order:  “without regard to marital misconduct” and “equitably divide.”

Marital misconduct – Biff was banging Buffy’s best friend and any other female that got within arm’s reach.  Doesn’t matter.  Buffy had a proclivity to bounce inanimate objects off Biff’s head whenever he turned his back on her.  Irrelevant.  No misconduct matters.  And this is the biggest problem in divorces:  Misconduct leads to real and intense emotions.  But, but, but that doesn’t change by even a single thin dime how the assets and liabilities will be distributed.

The second phrase – equitably divide – is crucial.  Pennsylvania, along with all but Louisiana and the West Coast states initially settled by the Spanish coming up through Mexico, are Equitable Distribution states.  The West Coast states are Community Property states.  Louisiana is based on French law – best of luck with that.

Equitable distribution seeks to achieve equity.  Community property seeks to achieve parity.  The former specifically rejects a 50/50 split; the latter embraces 50/50.

There’s more factors than the following ten that equitable distribution uses in its search for equity, but these lead to a good understanding of the underlying concepts:

(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

You see the picture being developed?  The classic situation is a couple getting married just out of high school.  They struggle financially.  Malinda stays home, barefoot and pregnant for several years.  Michael goes to school at night to get his degree.  The years pass.  Malinda makes a safe and productive home for her family.  Michael’s career advances.  Malinda hits menopause and adds a few pounds.  Michael’s hairline recedes and he finds someone young, thin, and (usually) dumb.

Every asset and liability they have is jointly owned.  A day after the divorce, Michael continues living his life and career.  Malinda has to find a job for the first time in 30+ years and is without marketable skills – at least to the level necessary to support herself in the fashion to which she’s accustomed.

When the marital balance sheet is divided, Malinda will get more than Michael.  It won’t be because he found a different pasture – that’s marital misconduct.  It’ll be because of, at least, items (4), (5), and (6) above.  The split may be 60/40 or as much as 70/30.

Can the misconduct come up in the divorce proceeding?  Yes, but why?  The basis for the divorce itself can be adultery instead of the marriage being irretrievably broken, but why?  Do you have something to prove?  You want to slash and burn your way out of the marriage?  I get the desire to want to prove something, but think of this:  You are currently married; you want to be unmarried.  What’s more important – the process or getting to completion?  The misconduct will not earn you anything in dividing the assets and liabilities, but it will cost you in attorneys’ fees to prove and will ratchet up emotions in every aspect of the divorce (which will, btw, cost you more in attorneys’ fees).  My advice?  Get in and out as quickly as possible with the best financial terms.

Dividing assets can get complicated.  Assume the wife owned the house prior to marriage and then the couple used wages during the marriage to pay the mortgage.  Maybe the husband inherited a home during the marriage and then the couple made improvements.  Pensions are issues.  It’s all a matter of diving into each asset and then doing some legal accounting (which requires an attorney, not an accountant).  No emotion needed.

The best advice I can give anyone facing a divorce is to set the date of separation.  Marriages are public ceremonies with licenses – the date is easy to ascertain.  The date of separation is a little more complicated, at least in Pennsylvania.  We don’t have a “legal separation” like NYS does.  In PA, the date of separation is that date when one party decides the marriage is over and all indicia of married activities ends.  By the latter, I mean that those things typically reserved to married couples – sexual intimacy is the prime example – has ended.  While valuation of assets may drift out to date of distribution, ownership of assets can be set at the date of separation.  You separated and hit the lottery?  Yes, she’ll sue to prove otherwise – wouldn’t you?  But maybe it’s all yours.  That’s a big maybe, btw.  You separated – even moved out (which is not generally required) – and you have dinner together, stay the night, etc.?  The date of separation probably just moved.

The nice part about divorce law is that since couples do get angry, they often waste copious amounts of money on attorneys proving a point.  This results in just about every situation having been argued to a court at one time or another.  There’s very little new ground – just better negotiators.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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