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Posts tagged "equitable distribution"

Grounds and Equitable Distribution in Montgomery County

Montgomery County has a different procedure regarding grounds for divorce and equitable distribution matters. Once grounds are established and discovery is complete, the moving party should file a Motion for Entry of Grounds and Appointment of an Equitable Distribution Master. The moving party will now have to pay a $400 fee at the time the Motion is filed. The Motion must certify that all discovery is complete. A list of all the assets and debts at issue along with their corresponding values must also be included. Finally, the initial pre-hearing statement should be attached including a completed Inventory and Appraisement. Once the Motion and all its required accompaniments are filed, a copy of the same should be served on the other party. A Certificate of Service should then be completed and filed with the court.

Pensions in Pay Status

Pensions already in pay status at the time of separation require additional considerations in a divorce matter. The pensions can still be divided as a marital asset however the method of valuing the total value of the pension for distribution is altered. This is because often elections for survivor benefits are made at the time the benefits commence and are usually irrevocable. Accordingly, any survivor benefit should be valued separately and set against the value of the pension itself. Pensions in pay status also present a unique issue when it comes to support.

Same Sex Divorce

In a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania's laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth Amendment. Now that Pennsylvania recognizes same-sex marriages, same-sex partners looking to dissolve their marriage are subject to the same process as far as divorce, equitable distribution and support. Most divorces proceed on the basis of no-fault meaning the parties need only allege an "irretrievable breakdown of the marriage" and either consent to the divorce after a 90-day period or establish 2-year separation. A no-fault divorce can also be obtained if one of the spouses is institutionalized for a period of 18 months provided they will likely still be institutionalized 18 months following the commencement of the divorce.

Important Dates for Defining Marital Property

There is often a misconception that assets and debts individual names will not be divided as part of a divorce action. This is simply not true. Section 3501 of the Divorce Code defines marital property as anything acquired by either party from the date of marriage up to the date of final separation. It also includes any increase in value on pre-marital assets. In the event of reconciliation after separation, the time frame for items acquired during the marriage and ultimately subject to distribution would change as the Divorce Code refers to final separation as the date to consider when determining the marital estate.

Workers' Compensation Awards

Pennsylvania law does allow for workers' compensation awards to be distributed as marital property. The key factor is if the right to receive the award accrued during the marriage. Pennsylvania generally defers to the timing of the receipt of assets as opposed to the method in which it was obtained for classifying what will be presumed marital property. In that regard, the purpose of the award is not relevant in determining the marital status. However, the court still has the discretion to consider the purpose of the award and other equitable considerations when determining what percentage should go to each spouse in distributing the marital estate.

Dividing Personal Property in Divorce

Personal Property in a divorce includes the tangible items that you own, such as the furniture, the houseware, the televisions, the paintings, and other items in your home. When parties separate, one of the parties normally leaves the home and takes items with them. What is taken can often lead to a dispute. It is important to keep things in perspective. The court will normally assign garage sale value to the items which means you are not likely to get a huge credit if you walk away from the entire contents of the home. Some parties unrealistically expect a credit of $ 20,000 for all the contents of the home since they left with very little. This is not likely to happen. What the Court normally does is have the parties list out the items in dispute and if you cannot agree alternate on picking items from the list. If you do have valuables that have a higher value, such as artwork or guns, these things can be separated if you have an appraisal. You should have your certified appraisal before you go to court in order to obtain the highest value for this item. While you may be attached to certain items of sentimental value, it is important to weigh the cost of the item against the cost of fighting over the item. Most personal property issues resolve by agreement. When they do not, most get sent to arbitration to resolve unless the items are appraised. When you leave the house, it is best to take the items that you want to have when the divorce is finalized as it can often take years before these issues will even get heard by the Court. 

Weighing the Cost of Litigation in Divorce

When issues arise in a divorce that are in dispute, parties oftentimes are concerned with being right or getting justice. The divorce action itself, aside from the peripheral issues of custody if there are children, involves money. The court does not assess who is right and who is wrong in wanting to get a divorce. The court generally does not care why someone is getting divorced. The issues before the court are what financial assets does the court need to divide and what are the incomes of the parties with the disparity income between the parties as the biggest driving factor in the outcome of a divorce. When parties have issues that are in dispute, they often either involve a dispute over the value of an asset or the percentage that should be awarded in the divorce. In these instances, a party who is more interested in being right forgets to weigh the cost of proving they are right. For example, if two parties disagree on the buyout figure for a house and their dispute is a matter of difference of $ 20,000, the parties need to step back and weigh the cost of getting the house appraised, bringing an appraiser to testify in court, preparation time for court, time at a court hearing and any court costs and their expected percentage of the asset. When this analysis is done, oftentimes, the party will realize they could spend more in litigation than the amount they hope to gain the dispute. Disputes over financial assets are best settled by compromise. No one is ever going to be right and since courts are not liberal in awarding attorney fees, even if a party's position prevails, the party will still be out of pocket to get to that position. At a minimum, a party must consider at all times the cost of litigation. For each and every dispute, it is important to weigh these factors: the cost to bring the claim, the anticipated cost in legal fees for discovery, preparation and attendance at trial, the amount of time it will take to have the issue determined, the cost of any expert witnesses, the amount of time and money lost from work in order to prepare for court and attend a trial, the emotional and psychological toll both on the party and any witnesses, the importance of preserving the relationship if any with the other party and affect on any common relations. Sometimes, a party may have to give up pursuing being right for the art of compromise because it makes more sense financially and psychologically. Understanding this is something a party needs to do anytime they are involved in litigation. 

What Happens to the Pet in a Divorce

In Pennsylvania, pets are considered personal property in a divorce. Like any personal property, if they were a pet prior to marriage, they go to the party who owned the dog at the time of the marriage. If they were purchased during the marriage, then like any other personal property, either party is entitled to keep the pet. If the parties cannot agree, they can either go to arbitration or they can decide that neither party gets to keep the pet. It is unrealistic to expect that the Court will entertain a custody schedule for a pet in a divorce. In addition, the custody statutes only apply to children. If you want to share custody of the pet, it is something that is best resolved through mediation. Through mediation, the parties can decide what things they want to address to agree on and this can include an agreement to share a pet. If you opt for this, be sure to not only include the schedule for you put, but also who will pay the expenses or how they will be shared, including vet bills, food, regular shots, etc. 

How long will the Divorce take?

If you are getting divorced, or recently filed, you may wonder how long it is going to take to get your divorce. In Pennsylvania, there are two no-fault grounds for divorce which is the vast majority of divorces even if you think you have been wronged. If you are already separated for two years when you file for divorce and have no assets to divide and no alimony issues, it can take as little as two months to get divorced. If you have no assets and no alimony issues but have not been separated for two years, there is a mandatory 90 day cooling off period. In those cases, you can expect your divorce to take about four to five months.

What Happens to the Divorce if you Spouse dies?

If you are getting a divorce, what happens if your spouse passes away before it is finalized? Under Pennsylvania law, if you have established grounds for divorce, the Family Court may still proceed with equitable distribution of your assets. They cannot grant a divorce posthumously, but you can still seek your share of the assets that you both accumulated while you were married. This is especially important in cases where the assets are held in your spouse's name. You will need to file a Petition to substitute your spouse's estate as the other party.

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