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Same-sex couples: are property division rules the same?

On Behalf of | Feb 8, 2022 | Same-Sex Matters

Every marriage is unique. So too is every divorce. This can be especially true for same-sex couples. Though same-sex couples now enjoy the same right to marry as heterosexual couples, it’s still a fairly recent development in Pennsylvania law. That fact can add complications to a divorce proceeding heterosexual couples won’t face.

Property division and equitable distribution

Pennsylvania is an equitable distribution state, which means that property is divided ‘fairly’, rather than equally. At the outset of any divorce, a court will seek to classify all of the couple’s property as either separate or marital property. Separate property is that which was owned by one spouse prior to the marriage – it can also include gifts or inheritances acquired during the marriage. Generally, separate property remains with the spouse who owned it.

Marital property, on the other hand, is property acquired during the marriage and belongs to both spouses. Unlike separate property, it is subject to equitable distribution. The complication which same-sex couples may face is that the date of the marriage heavily guides the classification of separate and marital property.

Since same-sex couples could not legally marry until recently, they may have been living as a married couple – for all intents and purposes – for decades before their relationship was recognized by the law. Which means the traditional demarcation line between separate and marital property may not make any sense for them and their circumstances. Dealing with this complex issue can be difficult. If you are in a same-sex marriage and contemplating divorce, seek the assistance of an experienced professional to guide you through this evolving aspect of the law.

 

Pennsylvania Bar Association

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