Pennsylvania Family Law : Pennsylvania Divorce Lawyer & Attorney : PA Family Law Blog : Fox Rothschild Law Firm : Family Law Serving Philadelphia, Pittsburgh, Bucks County, Montgomery County, Chester County

Earlier this year, Mark Ashton, a partner in our Chester County office, wrote about the Pennsylvania Supreme Court decision, Focht v. Focht. This case is significant because it overruled Pennsylvania's prevailing caselaw addressing how to determine whether a lawsuit and personal injury settlement are marital or non-marital assets. The old law looked to the timing of when the proceeds were received as determinative of whether or not it was subject to equitable distribution. The Focht decision established that it was when the cause of action accrues which determines whether the eventual settlement proceeds or judgment are marital assets or not.

This decision was recently cited in the July denial of an appeal from a Northumberland County decision, Glosek v. Glosek, CV-2005-1695. 

The husband in that case had his worker’s compensation proceeds included as a marital asset even though it was paid out to him approximately a year after the parties separated. The Court determined that the timing of the injury determined whether the workers compensation was subject to equitable distribution and not when the settlement agreement on the injury was entered into. He appealed on the basis of the old law (Pudlish v. Pudlish) and Section 3501(8) of the Divorce Code which addresses payments based on a claim accruing prior to the marriage or after the date of separation.

In what will be (or has been) one of many examples of Focht shaping equitable distribution outcomes, the court upheld the trial court’s decision that the Focht case explicitly overruled the old law (Pudlish v. Pudlish) and recommends that the appeal is without merit and should be dismissed. The order requiring husband to pay the wife $33,600.00 was upheld, as well as the court’s rationale in determining that specific amount.

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Jenice Armstrong of the Philadelphia Daily News wrote a column about Beth and Daniel Shak’s divorce. The Shaks divorce was finalized in 2009, but recently Mr. Shak filed a petition to enforce the parties' settlement agreement and is seeking 65% of Mrs. Shak’s extensive (and expensive) shoe collection. Mr. Shak contends that this collection is an asset that was not disclosed as part of the parties’ property settlement agreement and that Mrs. Shak did not provide a “full and fair” disclosure of this collection nor did she list it in an inventory of her assets.

Ms. Armstrong column actually highlights a broader issue that family law attorneys come across at some point in many divorces: what is someone’s personal property worth and is it worth pursuing? For the most part, attorneys shy away from getting too far into a couple’s personal property dispute; what you pay your attorney to try to get your living couch often could have been used to go out and buy a whole living room set. It can be a cost-benefit analysis, but it can also be an important and highly emotional component of equitable distribution because it may represent a marriage’s worth of memories and experiences. 

The Shak case also sheds some light on the question as to when “personal property” becomes an “asset.” How should people deal with a situation in which someone’s personal property cost them tens or hundreds of thousands of dollars (or as alleged in Mr. Shek’s lawsuit, $500,000.00 to $1 million) during the marriage? Valuation can be as difficult  a question to wrestle with since it is not uncommon for someone’s collection to have more value to them than it does to the “market.”

Make no mistake, however, Mr. Shak is not seeking his fair share of Mrs. Shak’s shoes and handbags; he is seeking 65% of their value as a lump sum payment from his ex-wife (plus his counsel fees and costs). If Mr. Shak’s petition was about stocks or a checking account instead of women’s shoes then it would not seem as unusual to ask the Court to recognize that Mrs. Shak failed to fully disclose a martial asset and award him a portion of the value.

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