Jan 292014
 

If you are going through a divorce or contemplating a divorce, it is likely that you will receive information on the subject from well-meaning family members, friends, co-workers, or others. Just about everyone has been affected by a divorce, whether it be from one’s own divorce, one’s family members, or friends. Unfortunately, there are a number of legal “myths” or just plain misinformation that exists with respect to the subject of divorce.

One common misconception that we often hear is the belief that if you leave your spouse, you give up the right to claim your share of marital assets, or, on another variation, that you give up all rights if you move out and remain separated for more than thirty days. Another misconception regarding marital assets is that if one spouse is at fault (for example, if a spouse has engaged in an extra marital affair) that he or she gives up the right to share in the division of assets.

Pennsylvania law provides that all marital assets are to be divided upon divorce without regard to fault. The division of assets involves a two-step process. First, the Court must determine whether an asset is “marital property”. Generally, anything acquired during a marriage is “marital property”, regardless of whose name the asset is held. This includes jointly acquired assets, and  property held in the name of one spouse, such as pensions and other retirement benefits. Common exclusions to “marital property” include separate property acquired by a spouse through inheritance, or property that both spouses have agreed to exclude as marital property, as generally occurs when there is a pre-nuptial agreement.

The second step in the division of marital assets is the “equitable distribution” of marital property. This means that one spouse can be awarded more than 50% of marital assets depending upon a number of factors, such as the length of the marriage, the ages of the spouses, the contributions made by each spouse, and the relative incomes and separate assets of each spouse. For example, if one spouse is a highly paid executive and the other spouse has a modest income or no income at all with little prospects for future employment, an award of 55% of the marital assets or more in favor of the economically disadvantaged spouse is likely. On the other hand, if the economic positions of both spouses are relatively equal, equal division of marital assets is likely.

Another common misconception is that a divorce is automatically granted after a two year separation. This is incorrect. While it is true that the consent of the other spouse is not necessary after a two year separation, if either spouse has made a claim with the Court for the division of marital assets or for post-divorce alimony, these claims will have to be resolved before a divorce is granted, unless the Court agrees to “bifurcate” or separate the divorce from the economic issues.

One of the biggest and most costly misconceptions in a divorce is the mistaken belief that property matters or alimony matters can be addressed after a divorce is granted.  This is not the case! If you fail to make a formal claim with the Court for the division of marital assets or for alimony before a divorce decree is granted, you give up the right to make these claims. If you have any property issues with your spouse or any spousal support or alimony issues with your spouse, these must be addressed before the divorce is final. Unfortunately, we have found that many people fall into the trap of obtaining a no-fault divorce under the mistaken belief that they can address property and support issues later on. If you have not made a formal claim for the division of marital assets or for spousal support or alimony before a divorce is granted, it is too late.

If you or your spouse are considering a divorce, property matters and support matters must be addressed before your divorce is final. With over thirty six years of experience, we are here to provide you with experienced advice and representation. Please feel free to call our office to schedule a consultation to discuss these important issues so that your interests will be protected.

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