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Two Ways That Courts Divide Property in a Divorce

Property division is one of the biggest concerns in any divorce. The media and word-of-mouth fill our heads will horror stories about someone losing “everything.” This creates a lot of confusion and misinformation about exactly how courts can divide property in a divorce.

Generally, states use one of two systems to divide assets in a divorce. These are the “equitable” model and the “community property” model.

Educating yourself on how family law works can help ease your fears and prepare you for what’s coming. In this article, we will take a deep dive into these two property division systems.

What Is Marital Property?

Before we move into the specifics of each division model, let’s take a moment to define property ownership within a marriage.

In general, spouses have one of two types of property: marital property and separate property.

Separate property originates outside of the marriage, and it belongs to just one person. It comes from inheritance, which is meant for only one recipient. A gift from someone outside the marriage is separate, and anything you owned before the marriage is separate.

Marital property originates within the marriage, and it belongs to both spouses equally. There are always exceptions, but as a general rule, anything that either spouse purchases during the marriage belongs to both parties.

Community Property Division

This model attempts to make an even split of all marital, or “community,” property. It wants both spouses to leave the marriage with 50% of the overall marital assets.

Sometimes called the “equal” division model, the community property system is generally considered a more antiquated system. Only nine states still use this model. Many of those states also have exceptions built into their law, allowing judges to use a more “equitable” system.

This system can present difficulties for spouses. Achieving a pure, 50% split takes a lot of effort. For instance, a spouse can’t keep the home outright. They must somehow compensate the other spouse for 50% of its value.

To achieve this split, spouses have several options.

  • They can sell off property and split the profits.
  • One spouse can pay the other to keep property.
  • They can trade physical property until each spouse has an equal share.
  • They can use combinations of all the above methods.

Equitable Property Division

Most of the country uses this method, including Pennsylvania. Under this system, property goes to the most “deserving” spouse.

Essentially, spouses must claim “entitlement” over property. Both the community property system and the equitable system require entitlement. Under the equitable model, however, one spouse may be able to keep property without owing the other anything.

Entitlement generally boils down to two different arguments: primary use or added value.

Examples of Primary Use

  • Jane buys Joe a puppy for his birthday. Over time, Jane and the dog develop a strong bond. Fluffy follows Jane everywhere she goes. Jane handles most of the dog walks, baths, veterinary visits, and so on. Everyone in the house regards Fluffy as “Jane’s” dog.
  • Mike buys the newest, most expensive game console. His husband, Fred, also plays it, and so do the kids, but Mike is the avid gamer in the home. He has dedicated matches with online friends at least once a week. Keeping up with all the newest releases, Mike buys the most games, and everyone understands that when Mike is playing, they must wait their turn.

Examples of Added Value

  • Sarah is a stay-at-home mom. She manages the home as well as the kids. Over the years, she has initiated repairs and remodels. Furthermore, she has found ways to protect the home from damage. Through her dedication, she has single-handedly raised the value of the home.
  • Jim bought a used, junky car just for his work commute. Eventually, he fell in love with it and started pouring time and resources into it. He learned how to repair it, and he even spruced it up with a high-quality paint job and other cosmetic additions. Now, it runs like a dream, and he could easily sell it for three times the price he paid.

Notaro Epstein Family Law Group, P.C. is here to help you argue for a fair property split in your divorce. For a free consultation, call our office at (412) 281-1988 or reach out to us online.

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