Division of Property

One aspect of divorce and making determinations of support is the division of the spouses' marital property. Throughout a marriage, most spouses acquire a number of properties together. Cars, homes, assets within the home, interests, estates, money, and even debts, are all considered "marital property." When a marriage can longer continue, one of the terms of divorce and support that will be discussed is how to distribute the property between the two spouses. There are multiple aspects to how property may be divided, and spouses may want to consider discussing support and property distribution together to ensure fairness. If a settlement does not occur, a judge may make a decision on how the property is to be divided instead.

What Is Marital Property?

When a court refers to "marital property" for division between spouses, there are certain and specific guidelines that the property must fall within, in order to be divided. Again, marital property can come in several forms. Both a physical car, and the loan accompanying it can be considered marital property if it was obtained during the marriage. However, not everything will always fall under this umbrella. "Separate" property is property that will not be considered for distribution. Although one spouse's separate property will not be distributed to the other spouse, it may be considered when determining how to distribute the marital property.

Separate Property

Separate property can include a number of things. Typically, separate property includes a spouse's property before marriage, any property that spouse acquires while separated, any inheritance or gift intended for and received by that spouse, and any property excluded by a prenuptial or postnuptial agreement. Separate property is never given to the other spouse, except in the case of a settlement not determined by the court. When in doubt, it is best to consult an attorney as to whether or not certain property can be considered separate.

Marital Property

Marital property is made up of everything the spouses acquired together during the marriage. This can include physical property such as a house, a car, or furniture. It can also include non-physical things such as bank accounts, investments, or retirement savings. On top of this, debts will be distributed as well. This can include the mortgage on the home or a loan for a car. The court will typically not consider who's name property is recorded in when distributing property, so long as the item was accrued during the marriage.

Equitable Distribution

In Pennsylvania, when negotiations for property fail, the standard that the judge will use to determine how to divide property between two parties will be that of "equitable distribution." However, the name of this doctrine is not based upon an absolutely even split between the two parties, instead it relies on what the court deems is "fair" for both spouses. "Fairness" is up to the judge overseeing the case, and it may not always be an even split between the two spouses. There are several factors a judge, or designated court representative, will consider when determining equitable distribution, some of which include:

  • Prior marriages: Prior marriages will give the court an indication of a spouse's assets, and if things were split fairly in the past.
  • Overall health of both spouses: Health and age will all play a role in a court determining the needs of each spouse for a fair division.
  • Income of both spouses: Information about spousal income will provide the court with an idea of how each spouse will perform financially after the division, and which spouse is more likely to struggle.
  • Custody of children: If one of the spouses is receiving primary or sole custody of the children, the court must also factor how the children will be affected when determining property division. The ages and specific needs of the children will also be considered.
  • Length of marriage: The court can use the length of marriage to determine the degree of how entitled each spouse is to the marital property.
  • Both spouses non-marital assets, including assets protected by pre-nuptial agreement: Assets outside of the marriage are considered for the sole purpose of giving the court an idea of what each spouse has on their own.
  • The standard of living established during the marriage: The court may examine the standard of living throughout the marriage, and is likely to attempt to divide assets in a way that allows both parties to maintain it.

These factors and more are likely to come into play when the division of property is left up to the determination of the court. However, division of property does not always need to be resolved at the discretion of a judge or a court official. Instead, many spouses will prefer to work out and accept a settlement.


While taking a spouse to court over property division is one way of resolving the issue, many spouses prefer to settle the matter outside of a courtroom. Settlement can be negotiated between attorneys and parties in order to determine the best course of action. On top of this, all the restrictions between separate and marital property can sometimes be worked around when dividing property through a settlement worked out independently by the spouses, so long as they both agree to the way the property is being divided. It is important to consult with an attorney regarding all matters of property division, as settlement may be a better option than taking the entire case to the courtroom. On the other hand, if a settlement is not agreeable or fair, an attorney can advise the spouse on what the chances are in court.

If you or a loved one is currently involved in a property division case, or other matter of Family Law, contact attorney Joseph D. Lento today.

Contact a Family Law Attorney Today!

Attorney Joseph D. Lento has unparalleled experience practicing Family Law in Pennsylvania. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Family Law Attorney Joseph D. Lento will go above and beyond the needs for any client and fight for what is fair.

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