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Over years of watching television dramas and movies, it would have been difficult for any adult in any of our states or territories not to have heard the term “community property”. That gives one the impression that it is typical for a state to be a community property state when the issue is divorce. I’m often asked “Is Pennsylvania a community property state?”, and the fact is that only a minority of states are community property states and, importantly, Pennsylvania is NOT one of them. Fictional dramas use community property in their scripts because it is such a simple and easy to understand concept: Half of the stuff is yours and the other half is mine. It is true that some of the “stuff”, like things one of the parties owned before marriage, is not community property stuff and is therefore not subject to the 50-50 division.

One of the problems with community property laws is that they frequently are just not fair. If one spouse is a surgeon and the other has been a housewife and mom for the last 30-plus years, the housewife/mom is very likely going to need considerably more than half to survive. Moreover, the state government has a real interest in that person’s economic survival and that is keeping her from becoming a welfare recipient.

In a Pennsylvania divorce action with that exact surgeon/housewife scenario, the Court gave the wife 65% of the combined marital estate. How the Court decides to divide the estate can be interesting and even, perhaps, not the way the housewife would want to receive her 65%. For example, the marital residence in such a case may be extremely valuable, large, accommodating, and even paid off. The housewife may love it and want it, but if the Court awarded it to her, she might well receive less cash as part of the settlement. Were she to complain that she wants the house but needs much more cash, the Court would likely tell her that she cannot have it both ways. The house has a certain real, actual value easily established as a dollar figure. To have more cash, she might have to put the house into the surgeon’s column or agree to its sale.

That story demonstrates Pennsylvania’s property law which is to equitability – fairly, not necessarily equally – distribute the marital assets: Equitable distribution, not the automatic equal division that takes place in a community property state – or on TV. Yes, there may well be Pennsylvania divorce actions wherein the couple’s assets were divided right down the middle. That could happen in one of several ways. The first would be that the couple simply agreed to the equal split regardless of their respective economic needs or desires. They may have just wanted to keep it simple and move on with their new lives. Doing so agreeably can also save on lawyer fees and shorten the divorce’s overall time span. The second could be a situation wherein one party wants the divorce much more than the other with the result being that the surgeon (who can take or leave getting divorced) states he will not fight and delay the divorce if the housewife will back down to a 50-50 split. The housewife (who desperately wants to be single for any number of possible reasons) agrees to accept 50-50 even though the law would end up being more generous to her. A third possibility would be that the Court determined 50-50 to be economically fair.

One of the major differences between community property division and equitable distribution division shows up when real estate, for one reason or another, is only in the name of one spouse. With either type of law, property (realty, non-realty items or money) acquired before marriage by one spouse and maintained in that one spouse’s sole name and not used for the benefit of the marriage is not marital property and is not subject to division. But if A and B get married then move in together as spouses into a house already solely owned by A thereby making it the marital residence and it is kept in A’s sole name, community property law says that B will have no claim to it in a divorce. In Pennsylvania, an equitable distribution state, B would have a claim to an economically fair share of the amount the property increases in value during the marriage up to the time of separation. Accordingly, B would be compensated for B’s contribution to the marriage – which are more than B’s contributions than in mere dollars and cents but in spousal duties and services, not the least of which is the companionship aspect of all marriages – in Pennsylvania but not in a community property state. Therefore, A might wish to exit the marriage leaving B high and dry, but equitable distribution can prevent that. It is easy to see how community property divorce laws can be not only unfair to a longtime spouse but can be harsh in the extreme.

Before we leave here, I will address a common fallacy. Many spouses believe that because he/she was the only (or primary) breadwinner, everything acquired by during the marriage is his/hers, now and when and if the marriage should end. It is the duty of each spouse and Pennsylvania’s public policy that each spouse shall contribute to and support the marriage as a whole. A spouse does not act solely for his/her own interest. A spouse who thinks that way simply should never become a spouse. Just stay single, rule your own domain, and share nothing. Marriage changes that completely, regardless of the type of laws of your state.

It is my opinion, therefore, that Pennsylvania’s equitable distribution of marital property is usually fair and community property (50-50 regardless of economic position) is frequently unfair. That said, keep in mind that in dividing the assets in an economically fair manner, no weight is given to which party has behaved worse than the other. Accordingly, one can imagine a scenario which Spouse A has been the sole source of income and has behaved completely honorably throughout the marriage whereas Spouse B has been physically abusive and has repeatedly engaged in adulterous conduct and it is Spouse B who wants the divorce and far more than half of the assets to boot. It would be hard to call that a fair result; however, Spouse B’s bad behavior would likely completely rule out any significant amount or length of alimony. That would leave Spouse B with having to immediately find a means of support…and that could at first entail selling off such of the marital assets as necessary to survive. That would be a very daunting proposition to face, would it not?

No system of dividing to marital assets is perfect, but our law, which is designed to do so as economically fairly as possible, is, if not perfect, certainly the best we can do.