Section 401 of the Divorce Code
In Anthony v. Anthony, 355 Pa. Super. 589, 514 A.2d 91 (Pa. Super. 1986) the Court held:
Under the Divorce Code the court first determines what is marital property based upon the time of acquisition and then determines the equitable distribution of that property taking into account the factors in subsection 401(d).
Subsection 401(d) concerns the fair apportionment of marital property between the parties following a divorce, not the designation of assets as marital or nonmarital property.
Once the parties' property has been earmarked as either marital or nonmarital property according to the time of its acquisition and the subsection 401(e) exceptions, see 23 P.S. 401(e)-(f), then the court may, in conformity with subsection 401(d) of the Code, equitably divide and distribute the parties' marital property after due regard for all relevant factors among which are those listed in subsection 401(d) such as the "contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker." 23 P.S. 401(d)(7). 514 A.2d at 94.
In finding that the pension was marital property, the court emphasized the length of "the marriage", the wife's contributions to "the marriage", and the fact that the wife would be "punished" if the court did not rule that the pension was marital property.
This is an erroneous application of the law. Anthony, supra.
The court must first determine what is marital property, and then apply the factors for distribution set forth in the Divorce Code.
Furthermore, it is incorrect to apply "moral" grounds in order to determine what constitutes marital property. Berrington v. Berrington, 409 Pa. Super. 355, 598 A.2d 31, 34 (Pa. Super. 1991).
As this Court stated:
Sacrifices made by a non-employee spouse during the early years of a marriage can be factored into a court's order distributing marital assets pursuant to Section 401 (d) of the Divorce Code.
However, it cannot be substituted for the statute's unambiguous definition of that which constitutes marital property.
Marital property means all property acquired during the marriage, with certain exceptions. 598 A.2d at 38.