Ramifications of Divorce

Question 1

How does Pennsylvania divide marital property?

Answer 1

Equitable distribution: the court divides marital property in a fair and equitable manner and has broad discretion in doing so.

Question 2

What is marital property?

Answer 2

1. All property acquired during the marriage.
2. Any increase in value of all non-arital property during the marriage up to the date of separation or up to the equitable distribution heraring, whichever is less.
   
   1. ​A decrease shall be offset by an increase of non-marital propety owned by the same spouse.
3. Separate property that is commingled with marital property.
4. Separate property in joint names, absent clear and convincing evidence that it was not meant as a gift to both spouses.

Question 3

What are some exceptions to marital property?

Answer 3

1. Property acquired before marriage or in exchange for property acquired before marriage.
2. Property excluded by a valid agreement entered into before, during, or after the marriage.
3. Proeprty acquired by gift, except between spouses, bequest, devise, or descent, or property acquired in exchange for such property.
4. Property acquired after final separation until the date of divorce, except such property acquired in exchange for marital property.
5. Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation.
6. Veterans’ benefits exempt from attachment, levy, or seizure, except for those benefits received by a veteran when the veteran has waived a portion of his military retirement pay in order to receive such compensation.
7. Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation.
8. Any award or settlement received for any cause of action or claim that accrued before the marriage or after the date of final separation, regardless of when the payment was received.

Question 4

What is final separation?

Answer 4

The spouses live “separate and apart,” which occurs on the date that the spouses cease cohabiting as a couple (can be in same house).

Question 5

What factors will a court consider in distribution of marital property?

Answer 5

1. Length of marriage
2. prior marriages
3. age, health, earnings, earning potential, liabilities, needs of both spouses
4. contributions to education
5. opportunities for future acquisitions
6. income, medical needs, retirement of both spouses
7. contributions to increases or decreases in value of marital property
8. value of separate property
9. reduction in valuation in marital property by one spouse
10. standard of living
11. economic circumstances
12. who has custody of a minor child

Question 6

What factors will the court not consider in distribution of marital property?

Answer 6

1. Future inheritance.
2. Marital misconduct.

Question 7

When is the value of the marital property assessed?

Answer 7

On the date of distribution, not the date of separation or filing the complaint.

Question 8

How will professional licenses or degrees be divided?

Answer 8

They won’t because they are not considered a distributable property interest. But reimbursement for the degree can be given to the non-degree-holding spouse for their contributions.

Question 9

How will retirement or pension benefits be distributed?

Answer 9

Equally, if they were acquired during the marriage.

Question 10

How will personal injury claim proceeds be divided?

Answer 10

As any other property: if the cause of action accrues (the time of injury) before the marriage, it is not marital property; if it arises during the marriage (regardless of when payment is received), it is marital property.

Question 11

How will goodwill be considered in a distribution?

Answer 11

Institutional or enterprise goodwill–which is linked to the business entity itself–will be equitably distributed.

Professional goodwill–which is intricately linked to the attributes and skills of the individual professional–will not be subject to equitable distribution.

Question 12

How will a possible future interest in property be distributed?

Answer 12

It won’t be.

Question 13

What are the tax consequences of equitable distribution of marital property?

Answer 13

The property is tax-free at the time of distribution, but is taxable upon sale.

Question 14

When will spousal support (alimony) be appropriate?

Answer 14

Only if necessary because the recipient is unable to meet their reasonable needs not met through self-support.

Question 15

When can alimony be awarded?

Answer 15

In a divorce or when the parties are separated. Can be indefinite or definite.

Question 16

What is alimony pendente lite?

Answer 16

Alimony paid during the pendency of a divorce action. It cannot be prevented by bad conduct by the recipient spouse.

Question 17

When will somebody be barred from receiving alimony?

Answer 17

When their conduct provides the grounds for divorce (adultery).

Question 18

What factors will be considered in determining spousal support?

Answer 18

“All relevant factors, including:”

1. financial resources, including earning potential, child support, and what they will be awarded in the distribution of property
2. Standard of living during the marriage
3. How long it will take for a spouse to find a job or complete necessary education/training
4. Length of the marriage
5. Age and physical/mental health
6. Spouses’ needs and ability to pay
7. Contribution by one party to the education, training, or increased earning power of the other.
8. Marital misconduct

Question 19

What are the various types of spousal support?

Answer 19

1. Lump sum
   
   1. fixed sum that may not be modified
2. Periodic
3. Rehabilitative
   
   1. Limited period of time, such as until the spouse receives employment or education, or alimony pendente lite.

Question 20

When can a spousal support order be modified?

Answer 20

1. At death
   
   1. it will expire unless otherwise specified by the court
2. At remarriage
   
   1. Can be modified
3. Upon cohabitation
   
   1. Can be shown by evidence of financial, social, or sexual interdependence; by the sharing of the same residence; or related means.
4. Upon change in circumstances
   
   1. Must be “significant and continual”

Question 21

What court can hear a family-related dispute?

Answer 21

A state court with personal and subject matter jurisdiction.

Question 22

When is venue appropriate for a divorce or annulment action?

Answer 22

Only in the county in which the plaintiff or defendant resides or in a county upon which the parties have agreed in writing.

Question 23

How long must a person be a resident of Pennsylvania before they can bring a matrimonial action?

Answer 23

One spouse must be a bona fide resident for at least six months.

Bona fide: Domicile or actual residence with the intention to remain there permanently or indefinitely.

Question 24

When is personal jurisdiction over a non-resident required?

Answer 24

For the court to determine the defendant’s duties and rights relating to both child support and alimony and, sometimes, property rights when the property isn’t in Pennsylvania.

Ex parte divorce is allowed though, and will be given full faith and credit.

Question 25

How can the non-resident defendant atack the issuance of an ex parte divorce?

Answer 25

By demonstrating that the other spouse was not domiciled in Pennsylvania at the time the judgment was granted or left the state’s domicile immediately after the entry of the divorce.

Otherwise, no collateral attack may be made.