When a couple divorces in Pennsylvania, the court can divide their marital property, including real estate, as part of the divorce decree. The spouses can also make their own separate agreement about how to divide their real estate instead of having the court divide it. This area of law is complicated, so you should seek the advice of an attorney if you are attempting to divide real estate as part of a separation or divorce.
Generally, Pennsylvania considers all property, including real estate, acquired by either spouse during the marriage to be marital property, which can be divided by the court in a divorce and distributed to the spouses. However, some types of property are not considered marital property, so they are not divided by the court in the divorce, including property owned prior to the marriage as well as gifts or inheritances that only one spouse was given. For example, if you inherited a piece of real estate while you were married, that is typically considered your separate property and the court cannot give a share of it to your spouse.
Property Division by Court
In a divorce, Pennsylvania courts divide your real estate and other property equitably between you and your spouse. The court will not consider marital misconduct—such as adultery—when making the distribution, but it will consider other factors, including the length of the marriage, the economic circumstances of each spouse, and the expenses of selling or transferring certain assets such as real estate. Even before the court’s final distribution order is in place, the court can award temporary rights for one spouse to remain living in the family home until the divorce action is complete.
Separation and Property Settlement Agreement
If you and your spouse separate without filing for divorce, you may wish to develop a Separation and Property Settlement Agreement. Though Pennsylvania does not provide a process for a formal legal separation, creating this agreement accomplishes many of the legal formalities that will protect you during the separation. For example, you and your spouse can agree to divide your real estate in a certain way and you can establish which of you will be paying for the debts on that real estate, such as mortgages or liens. Once the agreement is signed, it becomes enforceable as though it were a court order.
Automatic Change of Status
Most Pennsylvania married couples own their marital real estate as “tenants by the entirety,” which means that the surviving spouse will automatically inherit the property when the other spouse dies. If the real estate is not divided by the court in your divorce and you and your spouse have not made a written agreement on how the real estate is to be divided, your property ownership status changes automatically as soon as the divorce is final. Instead of being tenants by the entirety, you and your spouse will own the property as tenants in common, which means that your share of the real estate will no longer automatically pass to your ex-spouse upon your death.