When you get into a marriage, the last thing on your mind is probably a divorce or separation. You might have pictured spending the rest of your life with your now soon-to-be-ex, but circumstances may force you to divorce and part ways. But what if you had accumulated assets or had children before the divorce?
The legal process that follows may be daunting to comprehend and maneuver. That’s why you need the help of a divorce attorney to make the process a lot easier. Let’s explore the property division and child custody law in a Philadelphia divorce.
The Division of Property in a Divorce
In Philadelphia, dividing marital debt and assets is via equitable distribution, but that doesn’t mean equal. Equitable division means that each divorcing party gets a proportion of the assets (any item with monetary value) and debts accrued based on a divorce judge’s determination of what’s fair.
The Pennsylvania divorce law draws a distinct difference in property owned as either marital or non-marital. The marital property covers assets and any income acquired during the marriage. Non-marital assets, on the other hand, encompass:
- Property acquired before marriage
- Inheritance or gifts received during the marriage
- Property covered by a valid prenuptial or post nuptial agreement
- Assets you got after you and your spouse separate
Marital property is always up for distribution while the non-marital property isn’t. Well, until it is.
When Non-Marital Property Is Subject to Distribution
Generally, non-marital assets aren’t up for distribution. But what about inheritance used during a marriage? Is your inheritance part of marital property in a Pennsylvania divorce? Usually, inheritance is considered sole ownership by a specific person, meaning it shouldn’t be up for distribution.
However, what you do with the money before the divorce can quickly shift the property from non-marital to marital. For instance:
- If you purchase a motor vehicle or asset during the marriage or before your divorce is final
- If you put inherited money in a joint account you own with your spouse
- If you inherit a house and put your spouse’s name along with yours on the title
- Pennsylvania law also considers any increase in value of an inherited asset a marital property, even if it wasn’t under your spouse’s name during the marital period.
The Process of Dividing Marital Property
There are two ways through which couples can divide marital property. One way to go about it is through a written contract, otherwise known as a divorce/property/marital settlement agreement. This document shows the terms that the divorcing parties have agreed on regarding the division of property and other issues like child custody and support, visitation and alimony agreements. It’s best to get a divorce attorney to review the document and advise you accordingly, before you append your signature and send it to the court of law for inclusion in the final divorce judgment.
The other way to go about it is to leave it to the court. That usually happens when both spouses can’t seem to agree on the divorce terms. Being an equitable distribution state, Pennsylvania courts will distribute marital assets in a way it deems fair. That often means putting into account multiple factors, as discussed below.
Factors Affecting the Distribution of Marital Property
If the divorcing couple disagrees on terms, a judge decides on marital property distribution and any other issue before the final divorce decree. Remember the court doesn’t consider who is responsible for the divorce when passing judgment on marital property distribution, but it may look at:
- The health, age, income status and employability of each spouse
- Whether either spouse has been in a previous marriage
- The person who gets custody of the kids
- The amount of non-marital assets owned by each party
- The prenuptial agreements in place
- The contribution of each couple towards advancing their spouse’s income, earning power and education level
- The role played in the acquisition, preservation, appreciation and depreciation of marital property
- The role of each spouse as a homemaker
- The economic circumstance either party will be in when the ruling on the division of property takes effect
The Distribution of Marital Debts
Debt division, just like assets, occurs during a divorce due to its financial implications on one or both parties. As you go through your divorce process, you might have to identify, characterize and value your marital debt, including credit card debt, tax obligations, promissory notes, mortgages and personal or business loans.
Any debt incurred during the marriage is legally a marital obligation. However, you could prove that being responsible for some debt, such as gambling, is unreasonable, and clear yourself from the shared responsibility. On the other hand, debt incurred before marriage is an individual’s responsibility. But if it directly affected the union, such as a loan to finance the wedding, the court might consider it marital debt and not sole responsibility.
Debt incurred by one spouse to support the family’s daily living expenses is considered marital debt in a Philadelphia divorce, meaning both spouses will share the payment costs. The court distributes marital debt to both spouses, regardless of who accumulated it. Debt distribution is generally equitable in a manner the judge sees it fair, which may include considering the amount of debt and how it accumulated.
What of the House?
Married people may own a house or an apartment, which forms part of the marital property up for distribution if the couple decides to divorce. Pennsylvania divorce law grants the courts the right to allow a spouse to reside in the marital home during or after the divorce. It could also provide for the sale of the house immediately or in the future and equitable allocation of the resulting proceeds.
But what if children are in the picture, and they currently reside in the house in question? In that case, there’s no selling the property that the kids call home. Here, the children’s primary custodian can buy out the other spouse’s interest in the house by giving up assets of equal value.
Child Custody After a Divorce
Going through a divorce with kids often brings about the question of child custody. One parent has to take complete charge of the child’s well-being as the other one gets visitation rights. This custody arrangement can be through mutual agreement, alleviating the need for a court custody order.
However, if the couple disagrees, a judge will decide where the child will live and any other decisions regarding their well-being. Grandparents or any other person who has acted in the capacity of a parent or guardian for a while can also file for child custody. A child custody order or arrangement provides for the physical custody, legal custody or a visitation schedule if necessary.
Physical custody can either be;
- Sole physical custody where the kids live with one parent, the primary custodial parent, more than half the time
- Primary physical custody, where one parent gets physical custody for the majority of the child/children’s time
- Partial physical custody, whereby a parent gets physical custody of the child for less than the majority of their time
- Shared physical custody where both parents equally share time spent with the child
- Supervised physical custody, where one parent spends time with the kids under supervision by a court-appointed adult
Legal custody defines how the parents will make decisions for the child. It can be shared legal custody, where both parents can contribute to the decisions, or sole legal custody, where one parent takes charge of all legal decisions.
The court accounts for various factors when making custody decisions, including but not limited to the risk of harm, the party that can best meet the children’s needs and the need for stability in the children’s lives. A judge will ultimately decide in the child or children’s best interests.
Rules About Child Support Payments
Child support is a payment that the court orders from the non-custodial parent to the parent who resides with the child most of the time. It’s payable until a child reaches 18 years or finishes high school and if they have a physical or mental condition that needs extra financial help. This payment is in place to cater to the costs of raising the child, whether physical or medical needs.
So, how do you request child support in Philadelphia? With the help of a divorce attorney, you can take a support order to court and include it in the divorce proceedings. A judge will rule on the issue and put the child support order in the final divorce decree.
The amount due for child support is according to the child’s reasonable needs and the ability of the obligated parent to pay. Calculations are often via the Pennsylvania Child Support Guidelines generated by the state’s Supreme Court. While the formula is somehow complex, it accounts for issues such as the children’s needs, any social security benefits, the parent’s income and the children’s living arrangements.
The non-custodial parent isn’t required to pay child support until the final court order. Once the child support order is effective, any parent may file a request for the court to increase or decrease support per the arising circumstances that may prompt a change in the amount paid.
Contact Your Divorce Attorney in Philadelphia Today
Property division and child custody are sensitive issues you can’t afford to gamble with during a divorce. It’s best to err on the side of caution and seek professional legal services throughout your divorce case. You can contact Cooper Family Law to speak to a Pennsylvania family lawyer.
