In Montgomery County, as in other counties across the state of Pennsylvania, when a couple gets divorced the legal process for dividing their marital property is known as “equitable distribution.” Equitable distribution can be accomplished by either going to court or through divorce mediation in Montgomery County.
Contrary to what many of our prospective clients believe, equitable distribution does not mean an equal or 50/50 distribution of assets. Rather, “equitable” means a “fair” division of assets based on the particular circumstances of each case.
So how do you determine what is “fair”?
The law in Pennsylvania sets forth thirteen equitable distribution factors to be considered when determining how to equitably divide marital property. The court is supposed to consider the thirteen equitable distribution factors in light of the facts of the case to determine what is fair.
Notably the list does not include marital misconduct as a factor. This is worth noting because one of the most common questions that we receive from clients is what, if any, a spouse’s misconduct – such as having an affair – will have on the outcome of the divorce. With respect to property distribution the answer is simple – none.
Marital misconduct, however, can be a factor in deciding alimony. It is one of the seventeen alimony factors used to determine the amount and duration of alimony. However, in practice, it is rarely considered by courts in Montgomery County unless it negatively affects the parties’ marital finances (for example if one of the parties spent exorbitant sums of money on a paramour).
The main factors that affect equitable distribution are the length of the marriage and the age, health and earnings or earning abilities of the spouses.
Other equitable distribution factors that are often considered are the contributions of each spouse towards the marital property, who has primary physical custody of the children, and any significant property and assets owned separately by the spouses.
One of the more common scenarios we see at SnapDivorce are cases of longer term marriages (15+ years) where the couples may have started out earning similar salaries but once they had children, one spouse took time off from his or her career to focus on family while the other continued to focus on work. Fast forward fifteen years, the spouse that continued to work may be supporting the household while the spouse that took time off to focus on family may have not worked outside of the home in a decade or more. The spouse that stayed home has far lower earnings and future earning potential than the spouse who has been consistently working outside of the home. In a case like this a Montgomery County court might be inclined to view as “fair” an unequal split of the marital estate with the greater share going to the spouse with the lower earning potential (possibly a 60/40 split) potentially supplemented with an award of alimony to the lower earning spouse. See How Alimony is Calculated in Pennsylvania and How the New Tax Law Affects Alimony in Pennsylvania Part 1, Part 2 and Part 3.
If the parties are in litigation in Montgomery County, getting to court for equitable distribution usually a multi-step, time-consuming, expensive and often frustrating process. For more information on the cost of divorce in Montgomery County, see What is the Average Cost of Divorce in Montgomery County?
To get to equitable distribution, first, the parties must raise a claim for equitable distribution in the initial divorce complaint. Then the parties engage in “discovery” which means exchanging and reviewing documents and information related to particular assets such as bank account, brokerage and/or retirement account statements. Then the parties file the appropriate paperwork to get to court, including preparing a detailed analysis of assets and liabilities in the case. Once all of the paperwork is filed it can take several months before the parties will a have a hearing in front of a “master,” who is an attorney appointed by the court to make recommendations regarding equitable distribution of assets. The master will review the parties’ submissions and express his or her view on what a “fair” distribution of the assets would be. The parties can then either accept the master’s recommendation or proceed to a hearing in which the master will review evidence and hear testimony. The master will then issue a report with his or her findings, which the parties can either accept or file exceptions at which point the case goes before a judge for trial.
One of the reasons divorce mediation is simpler and more cost effective than traditional litigation is because in mediation, the couple can have more control of the process and avoid the duplicate and expensive work of attorneys and the delays and hassle of the court system. In mediation, instead of starting the case by immediately filing a divorce complaint in court and setting off a rally of back and forth paperwork, deadlines and waiting periods, the parties meet with a neutral attorney mediator in a conference room to work together to identify the marital assets, value them and discuss – through mediation – how the assets should be divided. It is only when the parties have come to an agreement as to the division of the assets that we file the divorce paperwork. At this point in time, the most difficult and costly part of the case is already over which somehow makes waiting for the court to process the divorce paperwork a little less frustrating.