Areas of Practice
How Does Property Ownership Work During Divorce?
One of the things that everyone intellectually accepts-but rarely thinks about-when it comes to divorce is property division. As a concept, it’s pretty straightforward; in the event of a divorce, it is time to divide things up and find out who is going to retain what in the wake of the split. But the exact mechanics of how this is going to work, especially after many years of marriage, can be a complex process.
In Pennsylvania, there is an idea known as equitable distribution that is at the forefront of property division. Equitable division does NOT mean that there is a straight 50% split right down the middle between spouses or partners in the event of a divorce. In that sense, equitable distribution is more concerned with what is fair, rather than what is numerically accurate. But there are a few areas where things can get hazy. Property is one of those places, especially when it comes to assigning both a timeline and ownership for before and after a marriage.
This is definitely the easier of the two types of property to process during a divorce. Joint property is any property was acquired during the course of the marriage. This applies to automobiles, real estate, businesses, art, stocks and any other assets. There is a legal assumption, once a marriage has begun, that all property purchased by the spouses is-unless otherwise legally specified-jointly owned.
This is even the case with property that was purchased under another spouse’s name. So even if a car, or antique furniture was shown to have purchase under one spouse or partner’s name, because the purchase occurred while a marriage was “active” it is considered join property, and thus would be up for discussion in a divisions of assets if it’s required.
Separate property, on the other hand, is a bit more complex. This is any purchase of property that was made before the marriage, or is specifically excluded from equitable distribution because it was covered under a pre-nuptial agreement, or is a purchase that was made after a separation was filed, but before the divorce took place. Inheritances or gifts given during the marriage may also be considered separate property.
As you can see, this is a bit of a grayer area, and requires active planning or timing in order to be excluded from an equitable distribution evaluation. However, if certain properties increase in value during the course of the marriage, that value increase may be considered a part of joint property. So, if a work of art owned previous to the marriage is, over the course of the marriage, found to have increased in value by 300% because the art was discovered to be more valuable or rare than originally thought, then even if the actual physical painting still belongs to one of the spouses, the sale value of that painting may apply for equitable distribution.
It’s because of complex issues like this that an experienced attorney should always be consulted when going over the division of property in a divorce.