It’s Titled in My Name, So I Get to Keep It in the Divorce, Right?

By Matthew T. Hovey, Esquire

When I meet with potential clients who are seeking help with a divorce, the number one misconception I encounter is the belief that because some item of property (e.g., real property, bank account, car, pension fund, etc.) is titled or deeded to only one of the spouses, then the property is protected from the divorce. In other words, I hear all the time things like, “Oh, but that’s in my name, so we don’t need to worry about.” or “The house is in his name, so there is nothing I can do about that” or “Well, that’s in her name, so its hers.” The legal truth, however, is that whether property (real or personal) is titled individually or joint is irrelevant for the purposes of the divorce and its property division.

Pennsylvania’s Divorce Code shows a tremendous amount of respect for the institution of marriage. When two people unite in marriage, in the eyes of the law, it truly is for better or worse. With respect to property distribution, while there are exceptions, this means that all assets and debts, gains and losses, and increase or decrease in value of any property, marital or non-marital, originating during the marriage are shared by the spouses. (Please note, however, that Pennsylvania is not a common property state, which means that the property will not necessarily be shared equally.)

This is codified in 23 Pa.C.S. § 3501(b), which states that “All real or personal property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety.” Nevertheless, 3501(b) also provides that, ” The presumption of marital property is overcome by a showing that the property was acquired by a method listed in [23 Pa.C.S. § 3501(a)].” 23 Pa.C.S. § 3501(a) provides a list of exceptions to the general rule, but none of them are title.

As a result, when evaluating (what we refer to as) the marital estate, the focus in timing and method of acquisition, rather than title. If you, a friend, or someone you care for are considering a divorce, I urge you to seek a consultation in order to gain a better understanding of your marriage’s marital estate and your rights associated with the marital estate. This can be valuable even if you plan on a simple, amicable divorce because then at least you can at least move forward with a complete understanding of your settlement instead of going in blind with the risk that you will one day wake up with regrets.

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