The Impact of Marital Misconduct in Property Distribution


When Donald Sterling’s alleged mistress taped him making disparaging remarks about African Americans, it was just the beginning of the billionaire’s legal troubles. It wasn’t long before his wife of 60 years sued him for divorce, and a judge ultimately awarded to Shelly Sterling nearly $3 million she claimed was secretly spent buying her ex-husband’s mistress a house, cars and other luxury gifts—money she contended was marital property from their decades of marriage.

Adultery cannot be considered in asset distribution

Although most divorces don’t involve marital property in the billions of dollars, the issue of how marital property is divided can always be a source of contention. In Pennsylvania, the law says marital misconduct cannot be considered in the distribution of assets. That means that just because a spouse has an affair, that fact cannot be used to “punish” him or her when determining who gets what.

That does not mean, however, that money spent during the course of an extramarital affair cannot be recouped by the other spouse.

Related: High-net-worth divorce in PA

What is considered marital property?

Marital property in Pennsylvania refers to the assets and debts acquired by a married couple during their marriage.

In Pennsylvania, marital property includes:

  • Real property: the family home and other real estate acquired during the marriage.
  • Personal property: items such as furniture, appliances, vehicles, and other possessions acquired during the marriage.
  • Financial assets: bank accounts, retirement accounts, stocks, bonds, and other financial assets acquired during the marriage.
  • Business interests: any businesses or professional practices established or acquired during the marriage are considered marital property.
  • Debts incurred by either spouse during the marriage are also considered marital property and are subject to division.

Pennsylvania is an equitable distribution state, which means that marital property is divided fairly, though not necessarily equally, in the event of a divorce. This is in contrast to community property states, where assets acquired during the marriage are generally split 50/50.

Separate property, which includes assets owned by one spouse before the marriage or acquired through inheritance or gifts during the marriage, is generally not considered marital property. However, if separate property becomes commingled with marital property or is used for the benefit of the marriage, it may be subject to division.

Related: Sale of solely titled real property in divorce

The case of improperly transferred marital assets

In Pennsylvania divorces, the court can impose a constructive trust on property improperly transferred from the marital estate to a third party or can consider the value of property transferred to be an advance on the transferring spouse’s share of the marital estate. One of the factors in Pennsylvania’s Divorce Code regarding the division of marital property allows a court to consider the dissipation of marital assets by one spouse.

That means a spouse who spends money on an extramarital affair could find that their share of equitable distribution is less since the Court could hold that they already spent part of their distribution on or with their new significant other.

Get legal consultation with a property division attorney in Pennsylvania

Of course, every marriage and divorce is different, which is why we recommend you consult with an experienced property division attorney before getting too far along into the divorce process. We can ensure that what you are due is protected so that you can move forward with your life when the final papers are signed.

Schedule a free consultation here.

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