Law Office of Joanne Kleiner

Archives for June 2021

Jun 22

Can I File for Divorce in the Same State as my Vacation Home?

Can I File for Divorce in a Different State?

In the United States, 16.3 out of every 1,000 women got married in 2019, but 7.6 out of every 1,000 women got a divorce. Many people are as a result turning to a divorce lawyer for information about the process, because it comes with a lot of questions, like where you must legally bring the action.

Determining Where You Can File for Divorce

Some people may want to file for divorce in the state where their vacation homes are located because they wish to be in a state where they may be favored when it comes time to divide the marital assets. For example, Pennsylvania is a state where the courts divide marital assets by the process known as equitable distribution. What this means is that a court will base the decision on what it deems to be fair, which does not necessarily mean equal.

In community property states, each spouse may be able to designate some property as separate property, but the marital property will be considered to be community property. The court may divide this property evenly between the two spouses, and this may benefit the spouse with less separate property.

Residency Requirements

The purpose of residency requirements is to prevent the scenario described above from occurring. Most states require that couples set up residence in the state in which they plan to file for divorce. They may also need to meet a county residency requirement, but this will be shorter than the state requirement. You will also need to live in the location on a continuous basis to establish residency.

If your vacation home is in a community property state where it would benefit you to reside, you may wish to meet the residency requirements and file there.

Domicile Rather Than Residency

Your residence is the place where you receive mail, register to vote, and where you own, lease or rent your home. Your company may be in the location of this home, and you may have registered your vehicles and registered to vote in the area. This is evidence that the property is your residence.

Domicile means that you are physically located in the state. It also means that you intend to live there on an ongoing basis but that you are not required to remain there forever. Some states use the word “domicile” rather than residency for divorce proceedings.

The Right of Jurisdiction

Before the courts can decide how much marital property each spouse may receive, it must demonstrate that it has jurisdiction over the matter. The divorce petition is the document that states that the spouse meets the requirements for residency, and this provides the state with jurisdiction. Once the court serves the other spouse with the divorce papers, it has jurisdiction over this spouse as well. After this occurs, the filing spouse may leave the state if the couple doesn’t have any children.

Length of Time

If your vacation home is located in one of 26 states, you must establish residency for six months if you want to divorce in that state. Nevada requires one of the shortest residencies. If your vacation home is in Nevada, you will only need to reside there for six weeks. If your vacation home is in Washington, Alaska, or South Dakota, you aren’t required to establish residency. The remaining states have residency requirements of between 60 and 90 days.

Two extreme cases are Connecticut and New York. If your vacation home is in Connecticut, you will need to establish a domicile for a full 365 days. If you and your spouse did not get married in New York, you will need to live in the state for two years before you can file for divorce.

How Do Courts Determine Domicile?

Courts determine domicile by examining where the family lives, where the adults vote, where the vehicles are registered, and where they obtained their licenses to drive. Where they work and whether or not they are engaged in the community also add weight to the issue.

If you are in need of a divorce lawyer, contact us at the Law Office of Joanne Kleiner. We are located in Jenkintown, Pennsylvania, and we can be reached at (215) 886-1266.

Jun 18

Can You Get Some of Your Ex’s Pension During a Divorce?

Am I Entitled to My Ex-spouse’s Pension?

Roughly 56% of Americans include a pension or other retirement savings plan as part of their financial assets. Dividing up these sorts of assets in a divorce can be tricky. Whether or not you get part of your ex’s pension will depend on a few factors.

Pensions Are a Joint Asset

Even if your spouse was the only one contributing to the pension, part of it might be your property. Your divorce lawyer can argue for you getting a share of the pension because it’s a joint asset. Over the course of the marriage, you and your spouse’s contributions both went into things like producing children, obtaining a career, and getting home goods. Therefore, any funds that you or your partner got during the marriage are called joint marital property. In a divorce, these joint assets are split up. Depending on the way that you either choose to divide assets or a court issues an order, you can get some of a pension.

You Might Not Get Half of the Pension

Pensions are treated just like any other asset division in Pennsylvania. This means that they are split based on what is equitable and fair. Keep in mind that this doesn’t necessarily mean you automatically get half. Instead, the judge will split any pensions based on factors such as:

  • Whether you contributed to the home non-financially, such as helping with child care or cooking
  • How long you have been married
  • How much money you and your spouse each have
  • Your age, health, and ability to work at a job
  • Whether you’ll be a custodial parent or not
  • Your contributions to the pension or other marital property

Additionally, you might have the option of choosing to forgo your share of the pension in exchange for something else. For example, if you want to keep a car, you and your divorce attorney might offer to relinquish your right to the pension and get the vehicle instead.

Reasons That You Might Not Be Entitled to Some of the Pension

In most cases, a pension is part of joint marital property that needs to be considered during asset division. However, there are a few factors that can keep a pension from being a joint asset. In these cases, the answer to who gets the pension in a divorce will be your ex. You won’t be able to ask for part of it or use it while negotiating for certain property.

The most common reason that you won’t get part of the pension is just that your partner earned it before you were married. When your spouse brings a pension into your marriage, it is their personal property that they get to take when they leave. If they started the pension before your marriage but kept contributing after, you’re only entitled to the portion of the pension accrued after your marriage.

Another reason you might not be entitled to a pension is if you signed a prenuptial agreement. Though judges can throw out prenups for certain reasons, this doesn’t happen often. Typically, if you agreed you wouldn’t take any of your ex’s pension, you can’t. A final reason that you might not get their pension is the type of the account. Some pensions, such as those through the military, may follow a separate set of rules. These can potentially bar the pension owner from splitting the account with an ex. If the owner cannot transfer the pension to anyone else, you might not get any money from it.

Ultimately, most couples who divorce will end up splitting pensions or substituting other assets. However, this sort of asset division can be tricky, so it’s a good idea to discuss your unique situation with a divorce lawyer. At the Law Office of Joanne Kleiner, we take pride in helping people achieve satisfactory divorce outcomes. Our team provides the representation you need during this challenging transition. Call 215-886-1266 or fill out our contact form to schedule a consultation today at our Jenkintown office.