Generally speaking, to protect one’s assets in a Pennsylvania divorce from being equitably (that is, fairly, not necessarily equally) distributed in a divorce action in Pennsylvania, steps must be taken BEFORE one gets married. One way is a prenuptial agreement. Bear in mind that a term in all such agreements is that all assets are being disclosed and any that are not will be fair game for sharing. Another – and I emphatically urge that no one use this method as it is unlawful and immoral – is to not divulge assets going into the marriage. If such assets are later found (and any experienced investigator will find them), the Court will do more than just throw them into the pot. It could give such assets 100% to your spouse and even tilt the distribution of the remaining assets further in your spouse’s favor. Hiding assets is a really bad idea and if you think you can put one over on the Court, you are in for a very rude awakening. The Courts have dealt with more schemes than any of us can imagine and attempts to fool the Court not only fail, they typically backfire in a big way.
Also, before marriage, one may keep assets titled in one’s own name and never use them for the benefit of the marriage. An example would be a spouse owning real estate in that spouse’s sole name before marriage and keeping it that way; however, if that real estate were allowed to become the marital residence it could easily become marital property. Similarly, even if that property was never used as the marital residence, it could still become marital property under some circumstances. Those would include, for example, putting rental proceeds from the property in a joint account or using the rents or the property’s value as an asset to benefit the marriage (such as collateral for obtaining a joint loan or buying furniture for the marital residence).
Moreover, keeping assets in one’s sole name and thereby attempting to keep them from becoming marital assets could influence the Court in equitably dividing the actual marital assets as the most important consideration in that regard is trying to put each party, after the divorce, on as equal economic footing going forward as possible. If one party has significant assets in that party’s sole name when the divorce is final, it would be difficult to argue that said assets would not be helpful to that party’s economic future vis a vis that of the other party.
It has been pointed out that prenuptial agreements and keeping one’s assets in one’s sole name before getting married is tantamount to preparing for divorce before one is even married. Accordingly, those actions must be carefully taken lest the wedding fail to happen. A good argument in favor of such actions is in entering a marriage when one has children from a previous relationship. One can point out that it is of the utmost importance to protect the financial well-being of those children. That is something with which a new spouse should find it difficult to disagree.
There are certain assets which one spouse might receive during a marriage which, if kept in that spouse’s sole name and not allowed to become a marital asset as explained above, may not be considered marital assets. The two most common examples are inheritances and gifts given to just one spouse (even gifts from one spouse to the other assuming such a gift does not benefit the marriage financially). Finally, assets a spouse accumulates after the couple finally separates, provided they are accumulated with no residual help from the other spouse or a marital asset, are generally not considered marital property. As an example, I once had a client who, after ten years of separation, won a substantial lottery prize. That prize, under Pennsylvania law, was not marital property. And remember, it does not matter that the income of one spouse may have provided most or even all of the marriage’s assets. It was that spouse’s duty to provide for the marriage under our law and public policy.