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Under Pennsylvania law, all marital assets are subject to division in a divorce. Certainly, the portion of a pension that accumulates during a marriage is likely to be considered a marital asset. A frequent reaction to that is for the owner of the pension to claim that the owner worked for that portion of the pension (and the portion from before the marriage if there is such a portion) and it, therefore, is not subject to be shared with the spouse. The law does not look at it that way but rather expects each spouse to share all of the fruits of their efforts with one another as a married couple. (As an aside here, a prenuptial agreement could have prevented the pension from becoming a marital asset, but few people think of preparing for divorce from someone they are about to marry.)

Accordingly, the pension is subject to being shared by the divorcing couple, but not necessarily “split”, which implies a 50-50 division. You can read elsewhere on my website about property division in general, but our law provides for the equitable division of marital property and “equitable” means “fair”, not necessarily “equal”. The Court considers many factors in deciding how to divide the assets in such a way as to give both parties an equal chance to survive economically going forward after the divorce. The party needing more, therefore, may well get more than 50% and if sharing the pension is necessary to accomplish that, it will happen.

Remember that the parties are permitted – actually, encouraged – to work out a fair division of the assets on their own, with or without the help of lawyers or the Court ordering the division. If that can be done, much time and money spent on legal fees will be saved. So, one party might say to the other, “Give me the house and I won’t touch your pension” or “Let’s sell the house. Give me that money and 10% of your pension and we have a deal.” You get the idea. Under Pennsylvania law, bear in mind that who’s been bad and who’s been good plays no part in dividing up things (but taking advantage of the other party’s feelings of guilt can play a part, so settle quickly as the passage of time tends to diminish guilt).

Finally, dividing a pension now rather than when it “vests” typically results in a smaller total amount, but many people want their share now regardless of that or the tax consequences. And remember, the party who wants the divorce more puts themselves at a disadvantage in terms of bargaining power, so try to negotiate with a true “poker face.”