Dividing marital assets – what about assets that are in one party’s name only?

Here is a very common scenario – due to financial concerns, such as one spouse having bad credit or no credit the marital home is purchased in the name of only one party. Many people facing divorce fear that this means that the home belongs to the person whose name is on the Deed. Not true. In Pennsylvania, marital property is property acquired by either spouse from the date of marriage until the date of separation, regardless of how it is titled. Therefore, if the marital home was purchased

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after the date of marriage, but prior to the date of separation, it is a marital asset.

What if the marital home was purchased shortly prior to the date of marriage? Then it becomes somewhat more complicated following the divorce or separation However, there are certain instances in which the court will allow

a pre-marital asset to be divided in equitable distribution. The first is

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when an asset is purchased in contemplation of marriage. Basically, if a spouse purchases a home immediately before the marriage with the idea that the home will be used as the marital residence, then a claim can be made that the home is marital property making it subject to equitable distribution in the divorce. Even if the court determines that the home was not purchased in contemplation of marriage and is excluded from marital property, the other spouse is still entitled to a portion of the appreciation of the home that occurred during the marriage. This will be determined by examining the value of the home and the amount of the mortgage as the date of separation. The difference between these amounts is the appreciation that can be included as marital property.

Have more questions about marital assets and divorce or separation in PA? Contact us with the form on the right. We will help you earn fair marital assets distribution.

Race to the courthouse – does it matter who files first?

In Pennsylvania , there is no negative connotation assigned to being the Plaintiff or Defendant. That being said, there may be some advantages to commencing the action rather than waiting for the opposing party to do so. Having a divorce

action pending before the court grants both parties the protections of the court system which may be a very important factor where there are property and custody rights in question. Additionally, the sooner a divorce action is opened, the sooner the process can begin and, ideally, be brought to a swift resolution. The Plaintiff in a divorce or custody action can, to a certain extent, set the pace of the case. Lastly, the Plaintiff in a divorce or custody case has the opportunity to testify first, thereby telling his or her side of the story to the judge, thereby having the

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Can I still get divorced if I don’t know where to find my spouse?

Yes. First, we will discuss your situation to see if we can locate your spouse. Through a little research, most individuals can be located.

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Records can be retrieved through the internet, from friends and family, former places of employment, the post office and various other resources. The courts require that we must make a diligent, “good faith” effort to locate the other spouse. Then, if the other spouse still cannot be located, the court can approve a request to serve by publication. This would mean that notice of the impending divorce action would be served by publishing notice in the local newspaper of general circulation and the local legal periodical. Once this has been done, an Affidavit of Publication will be filed with the court and the other party will then be considered to have been served. Once this has transpired, the court will require that the party seeking the divorce establish grounds for the divorce, which in this instance, will most

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likely be granted under Section 3301(d) of the Divorce Code, relating to a period of continuous separation for at least two years.

Relocating with children

Recently in Pennsylvania, Former Governor Rendell signed Act 112 of 2012 into law. Now commonly referred to as Pennsylvania’s “New Custody Law” it addresses new requirements that must be met in order for one parent to relocate with the

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First, the parent who wants to relocate with the children is required to provide advance written notice to the other parent or any other party who has custody rights to the child(ren). There are very specific requirements for this notice, which among others, include notice of the proposed new address, names of individuals with whom the children will be residing, name of the new school they would attend, and a proposed new parenting plan. This notice must be given before the move takes place. Failure to comply with this requirement and moving without seeking court permission could result in the children being ordered to return to the former residence.

Once the non-relocating party receives notice of the proposed relocation, that party has only 30 days to object, in writing, to the proposed relocation. In the event that no such objection is raised, the non-relocating party will be presumed to be in agreement with the relocation and will be precluded from attempting to object to the relocation at a future date.

 

Once an objection is raised, the court will issue a full hearing to determine whether the relocation will take place. The court will consider numerous factors in deciding whether to permit the relocation to take place including the practical impact that the move will have upon the non-relocating party’s ability to parent the children, the reasons for the proposed relocation, and the best interests of the children.

Note: the above posting is meant to be an overview of the requirements but is not intended as legal advice, nor is it intended to be used as a complete guide to relocation. The statute has extremely specific requirements for both the relocating party and non-relocating party and anyone whose rights may be affected by a relocation should seek the services of an attorney immediately.

Moving out of the marital home – is it abandonment?

Many people facing divorce become concerned that, if they move out of the marital home, that they will be considered to be abandoning the home, or their spouse and that there will be repercussions for leaving the home in the divorce. While understandable, this fear is unfounded.

“Abandonment” is a ground for a fault-based divorce under Pennsylvania law.

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However, this must be for a period of one year and the spouse who moved out must have done so for no good reason and the spouse who was left in the home must be “innocent and injured”, which is quite difficult to prove. If you and your spouse discussed and agreed that one of you

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should leave, or if you leave the home at the other spouse’s request, it is not abandonment.

Even if the other spouse were able to prove abandonment (which is highly unlikely) this is only the grounds under which the divorce will be granted. This will not result in forfeiture of your right to your fair share of the property you have accumulated during the marriage, including the marital home. The only economic issue which may possibly be affected by a finding of abandonment is the amount of money

in alimony which may be paid between spouses. However, this impact is not likely to be significant, since this is one of several factors in determining amount and duration of an alimony award.

That being said, leaving the home can have a significant impact on achieving the child custody arrangement that you may be seeking and other strategic considerations. Be sure to discuss this with an attorney before making these important decisions. Call us today!