Theories on Property Division

There are two different theories on how title to property may affect the division of the property at the time of divorce. The title theory looks at which spouse holds title to each asset. There are multiple forms of title. Sole title grants the unilateral power to control. Examples of assets that may be relevant in divorce that are solely titled include retirement accounts, individual bank accounts, and vehicles. The remaining forms of title often apply to real property. Tenancy in common is the co-possession of an entire asset where each party has a ½ interest. Joint tenancy with right of survivorship is also co-possession of an entire asset with the condition that the surviving party will receive sole possession upon death of the other party. Each party can potentially transfer their interest during their lifetime. Finally, tenancy by entireties is similar to joint tenancy with right of survivorship but can only exist between spouses and any transfer of the interest can only occur with consent of the other spouse. Most states prefer the title theory. Equitable distribution is the method for property division under this theory.

The other theory in property division is community property. Under this theory each spouse has a present, vested ½ interest in all property acquired during the marriage. This results in an equal distribution of the property and is the minority view. Regardless of the theory utilized, the process of dividing property involves three steps. First, all the assets must be identified and classified as either marital or separate. There is a presumption that if the asset was acquired during the marriage it is marital. Second, each marital asset should be valued. Finally, all assets should be distributed either equitably or equally, depending on the property division theory being utilized. Both Pennsylvania and New Jersey divide property by method of equitable distribution.

Click here to read more on equitable distribution.

by

My spouse left me, why do I now have to pay the mortgage?

If you are getting a divorce in Pennsylvania, oftentimes the court will require the occupant of the marital home to pay the mortgage. It does not matter whose name is on the mortgage. The theory behind requiring the occupant to pay the mortgage is that only that person is receiving a benefit for use of the home. Consider it fair rental value. The court will normally impose a support obligation on the spouse to pay you if they earn more and you have been married for at least a few years. If you have children with your spouse, you can seek a mortgage contribution as part of child support if they children remain the home with you. The mortgage contribution, however, is never going to be equal to the mortgage, nor is it even half of the mortgage. In some cases, you will not even get a mortgage contribution if your income and the child support amount do not mathematically warrant it. It is also in the discretion of the Judge whether to even award it. If you cannot afford to pay the mortgage between the income you have and the support you receive from your spouse, it may be time to consider selling the home. If you fail to pay the mortgage while living in the house during a divorce, the Court can intervene and order it sold. It is a good idea if you are separating to consult an attorney who can assist you by figuring out approximately how much you can expect to receive. This not only helps in deciding if you can afford to stay in your home during a divorce but will also help you decide how much you can afford to live elsewhere if you have to move. The attorney can also provide you with the documented expectation of support in order to help you secure a rental if your income does not support it alone.

by

Things to consider when selling your house during a divorce

When you sell your house during a divorce there are certain things that you should consider regarding equitable distribution:

1. Make sure that the house does not appear empty by removing the furniture. If buyers are aware you are going through a divorce, they may try to offer you less than your house is really worth. If possible, leave the furniture and photos on the walls. You can do a stipulation with your spouse on who gets what when you do sell and if you are not going to be living in the house you may want to get that done before you leave.

2. You may not agree with your spouse on the listing price or realtor. It is best to communicate with your spouse rather than have the court make these decisions for you. If you cannot agree on a realtor, one option the court likes is to submit three names to the court each and they will decide or you could do this between attorneys or a mediator. If you cannot agree on a listing price, you may want to defer to the realtor. You also may want to build in an agreement on dropping the price after a certain time has passed and how much you agree to drop it.

3. Keep receipts for repairs and always exchange estimates. If you make repairs to your house and you are getting divorced, you want to be sure to get credit for the repairs and reimbursed from the proceeds of the sale of the house. In order to do this, you need to make sure the repairs are necessary and agreed to before you pay for them. A good idea would be for each spouse to get estimates and agree in advance before the work is done as to what is getting reimbursed.

4. You may have an uncooperative spouse who refuses to market the house or make it available. Remember in a divorce that the Court can control and enforce the sale of the house and remedies against an uncooperative spouse could include giving Power of Attorney to one side only to control the sale, or even in some cases, eviction from the house of an uncooperative spouse.

5. You need to consider who will pay the mortgage, expenses and taxes while the house is up for sale. If the house is occupied, normally, the spouse who remains in the house is responsible for everything and this is not something reimbursed. If the house is unoccupied, these expenses can be imposed on both parties and you will want to keep receipts for everything to seek a credit in equitable distribution.

6. Make sure you have an agreement in place on disbursement of the proceeds when the sale is completed.

7. Remember if you work together with your spouse it will benefit both of you in getting the highest dollar value for your home and save you unnecessary legal fees.

by

Divorcing and Preserving the Proceeds from the House Sale

If you are getting divorced and need to sell your house as part of the divorce process, it is important to keep your attorney informed. Oftentimes when you go to settlement, if you do not have an agreement in place, the proceeds will be split equally. As part of the divorce process, you can obtain a court order either through an agreement with the other spouse or through the court that preserves your proceeds until such time that an agreement on divorce is reached. In Pennsylvania, assets are distributed equitably, not equally. Usually the spouse who earns less money at the time of the divorce receives more than half the overall assets, although there are many factors that determine equitable distribution. If the parties can agree, it may be best to distribute equally that portion of the proceeds that are not in dispute and only hold the amount disputed in escrow or in joint names requiring two signatures. You should have this agreement or court order put in place prior to closing and if possible, prior to signing your agreement of sale.

For more information, visit: /Family-Law-Divorce/Division-of-Marital-Property/

by

Notice to Quit

In Pennsylvania, before an eviction may be filed, the landlord must serve the tenant(s) with a Notice to Quit. The Notice to Quit must explain why the tenant is being evicted: Nonpayment of Rent, Termination of the term (i.e. the 12-month lease is over and the lease was not renewed), or Breach of a term of the lease (i.e. no pets). However, the lease sometimes allows for the waiver of the Notice and permits the Landlord to file for eviction immediately.

The Notice to Quit must be served one three ways: personally on the tenant (by handing him or her a copy), leaving the notice on the entrance to the residence, or by posting the notice conspicuously on the premises.

The Notice to Quit must contain the following information:


Name and Address of Tenant being evicted

Date of service

Grounds for Eviction

Total rent due and owing

Amount of time to leave the property before an eviction is filed

Notice that the Landlord may pursue legal action

The Notice requires that a certain amount of time must pass between the time that the Notice to Quit is served and eviction is filed. For failure to pay rent, the time is 10 days. For either termination of term or breach, the time required is 15 days for leases last 1 year or less, or 30 days for leases lasting longer than1 year.

by

Real estate ownership

In Pennsylvania, there are several ways that real property (i.e. houses) may be titled. When two or more people own property together, they should be aware of the manner in which the property is owned:

Tenants in Common – When property is owned as tenants in common, each owner owns a certain percentage of the property. Usually, this ownership is equally divided, but can be altered on the deed itself. If you own real estate in this manner, you can do as you please with your share. For example, you can sell your interest in the property, or you can leave it to a friend or family member in your will. When you pass away, your share is distributed though the probate process, and not necessarily to the owners who survive you. Even though all owners own a percentage of the property, they all have the right to enjoyment and possession of the property.

Joint Tenants with Right of Survivorship – When property is owned this way, all owners have the right to enjoyment and possession of the property. However the property passes directly to the survivor(s) upon the death of one of the owners. The owners may not sell or gift their portion of the property without consent of the other owners.

Tenants by the Entirety – This is the similar to Joint Tenants, except that the owners must be married to each other. This form of ownership may be dissolved upon death or divorce of either spouse. If it is due to divorce, the ownership reverts to Tenants in Common.

by

Security Deposit

Before you rent an apartment or other dwelling, a landlord usually requires a security deposit. This deposit is held by the landlord in case you damage the residence during your tenancy.

The security deposit may not exceed two-months rent during the first year. During the second year, the security deposit may not exceed one-month rent. Furthermore, if the security deposit is greater than $100, the security deposit must be placed into an escrow account.

After you vacate, the landlord must refund your security deposit. However, if there is damage that exceeds normal wear and tear, the landlord may retain enough funds to fix the dwelling. The landlord is required to notify you within 30 days as to the damages and amount they are retaining. If the landlord fails to notify you properly, or if they keep more than the funds necessary to fix the premises, then your landlord will be liable for double the security deposit. Please note that you must provide a forwarding address.

by

Landlord Tenant appeals

In Pennsylvania, once a landlord/tenant eviction hearing is decided by a Magisterial District Justice (or by a Municipal Court Judge in Philadelphia), either party has the right to appeal if they disagree with the decision.

If a tenant appeals a determination of possession, there is a 10 day appeal deadline. In other words, the tenant must file the appeal in the Court of Common Pleas where the property is located within 10 days. The tenant has to then serve the notice and Rule advising the Landlord that they have 20 days to file a complaint. These forms must be served on the Landlord and Magisterial District Judge.

The tenant must also file a supersedeas which prevents the sheriff or constable from kicking the tenant out of the property. In addition to filing fees, the supersedeas requires that the tenant pay the lower of 3 months rent or the judgment to the Court to hold in escrow until the final hearing. The tenant must also pay the monthly rent to the Court every 30 days. If the tenant fails to do this, the supersedeas may be terminated and the eviction may proceed. Make certain that you keep track of this deadline as some months have more than 30 days.

For issues regarding just the monetary judgment account, the appeal deadline is 30 days. The process is the same, but you do not need to file a supersedeas and therefore do not need to pay the funds monthly to the Court.

If a landlord appeals, the deadlines are the same, except that the landlord must then file a complaint to the tenant instead of a Rule instructing the other party to file one.

It is recommended that the parties hire an attorney to proceed with an appeal as it is much more difficult and complex than filing with the lower Court.

by

Grounds for eviction

For a tenant to be evicted, the landlord may proceed on one or more of the following grounds:

1) Nonpayment of Rent. For example, the tenant has failed to pay the current or prior months’ rent, and the rent is past due. Also, the tenant has failed to pay late fees.

2) Termination of the term. For example, the lease runs for 12-months and the landlord gave adequate notice that the lease is not to be renewed. If the tenant stays past the twelfth month, the landlord may proceed on this ground.

3) Breach of the lease. For example, the lease states that pets are not permitted and the tenant has a pet.

At the eviction hearing, it is the burden of the Landlord to show that the grounds have been met. However, if the eviction is based solely on Nonpayment of Rent, the tenant will be permitted to remain the property if he pays the judgment in full.

by

Landlord and Tenant Act of 1951

Landlord/Tenant matters are governed by the Landlord and Tenant Act of 1951. A copy of the act may be found at http://www.parealtor.org/clientuploads/Legal/Statutes/Landlord-TenantAct.pdf .

In most counties in Pennsylvania, evictions are heard before the local Magisterial District Judge where the residence is located. The court will be scheduled between 5 and 15 days from the date of filing the complaint. In Philadelphia County, evictions are hearing in Municipal Court before a Municipal Court Judge.

If either party appeals from the Magisterial District Judge or Municipal Court ruling, then the hearing is transferred to the Court of Common Pleas in the county where the property and lower court are both located. To appeal an eviction, you must file the appeal and a document called a supersedeas within 10 days of the judgment. To appeal the monetary judgment only (i.e. past due arrears, legal fees, expenses, etc.), you have 30 days from the date of judgment. However, if the Judge granted eviction and you fail to file for a supersedeas (either because you don’t have the filing fees or you missed the 10 day deadline), you will still be evicted.

by