What Assets Are NOT Divided in a Divorce?

February 6, 2023
West Chester Divorce Lawyers at Eckell Sparks Counsel Clients on Division of Marital and Non-Marital Assets During Divorce.

Marital assets are jointly-owned items purchased or obtained during the marriage, even if the items are purchased by and titled in only one spouse’s name. Items such as real estate, vehicles, furniture, businesses, art, investments, and retirement accounts are all considered marital assets to be divided during the divorce process.

Pennsylvania is an equitable distribution state, meaning division of assets will be handled fairly, though not necessarily evenly split between spouses. Division of marital property is determined at the court’s discretion, typically based on the following:

  • Length of the marriage.
  • Age and health status of both spouses.
  • Each spouse’s income.
  • Tax implications.
  • Prenuptial agreements.
  • Amount of non-marital assets.
  • Child custody.
  • Standard of living during the marriage.
  • Each spouse’s employability.
  • Whether one spouse assisted in the other’s career advancement.
  • Any previous marriages.

Non-marital assets are those each spouse owned prior to the marriage or received, such as an inheritance. They are not considered jointly-owned and are typically excluded from asset division during divorce if kept separate. Non-marital assets that are not divided during divorce include:

  • Premarital property: Any property one spouse acquired prior to the marriage is generally considered non-marital and exempt from asset division. However, comingled assets will likely be considered marital property and divisible. In most cases, premarital property must be kept separate during the marriage in order to claim it as a non-marital asset during divorce.
  • Gifts and inheritances: Property gifted to or inherited by one spouse is generally considered a non-marital asset and cannot be divided. However, if the gift or inheritance was gained during the marriage, that spouse must provide evidence proving it’s legitimacy, such as providing a will or deed documenting the spouse as the sole beneficiary.
  • Retirement and pension funds: Pensions and retirement funds gained during the marriage are generally considered marital property, though funds gained prior to the marriage may be excluded. If one spouse wants to keep their retirement or pension intact, there are often asset trades or agreements that can be entered into in order to avoid dividing them. If an agreement can be reached to exclude retirement and pension funds prior to settlement, the court may then include the funds as non-marital.
  • Prenuptial and postnuptial agreements: The purpose of a prenuptial agreement is to define certain property as solely-owned and not to be considered marital property during a divorce. A postnuptial agreement is the same, only entered into after the marriage has taken place. In both cases, the court must uphold the agreement, though there are specific procedures listed within all agreements that must be followed in order for it to be enforced.
  • Property per an agreement: Divorcing couples who do not want to follow the state’s default rules regarding marital and non-marital property have the option of negotiating their own division of assets. In order for the court to accept the proposed asset division and include it in the final divorce decree, an agreement must be reached during the mediation or negotiation stage.

Should the value of the non-marital assets increase during the marriage due to the other spouse’s contributions, that portion of the asset may be considered marital property by the court. Additionally, if non-marital assets were applied to a common purchase, such as buying a home, those funds can also be considered marital property.

West Chester Divorce Lawyers at Eckell Sparks Counsel Clients on Division of Marital and Non-Marital Assets During Divorce

Division of assets is one of the most important steps in the divorce process. Our knowledgeable West Chester divorce lawyers at Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C. will investigate and assess your assets and negotiate the best settlement possible. Call us at 610-565-3701 or contact us online to schedule an initial consultation. Located in Media and West Chester, Pennsylvania, we represent clients in Delaware County, Chester County, Montgomery County.