What properties are not subject to division in a divorce?

It is common for divorcing spouses to have a pile of questions about the divorce process. One of their main concerns is determining which properties the court will distribute between spouses and which ones are excluded from the division.

Following the equitable division of property, Pennsylvania courts will distribute marital assets between spouses fairly and equitably. Marital assets are those properties the spouses acquire during the marriage. This means that the distribution does not include the following properties:

  • Separate assets: Properties each spouse acquires before the marriage or after separation are nonmarital assets and are exempt from property division. Note that separation does not necessarily mean a divorce decree has been issued.
  • Properties agreed upon in a prenup or postnup: Courts can enforce property division terms outlined in a prenuptial or postnuptial contract as long as the agreement is valid. Assets characterized as nonmarital properties will not form part of the property division.
  • Settlement or judgment awards: Any amount a spouse earns from a settlement or judgment award initiated before the marriage does not fall under marital properties, even if that spouse receives the award during the marriage.

Of course, there might be exceptions to look out for. For one, marital assets exchanged for new properties still count as marital. It is essential to familiarize yourself with your state’s property division rules.

Challenging the presumption of marital property

While several properties are not subject to divorce property division, the party claiming the exclusion must show the court that the assets are nonmarital and should not be part of the division. This includes submitting valid agreements, documents and other related proof of separate property.

There sometimes is a blurred line between marital and nonmarital assets, which confuses divorce parties. Keeping a detailed list of all assets and having a legal expert review their nature can help you protect your rights during the property division.


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