Property Division Lawyer in Salt Lake City
According to Utah law, property division is to be done equitably. This can be confusing, since equitable is meant to determine what is fair. And what is fair, does not always equate to what is equal. Confusing right?
In the eyes of the court, both spouses contribute to the property they acquire during their marriage. This remains true regardless of income source. In fact, many of our clients are surprised to learn marital property can be divided, even in cases where only one spouse holds the title to the property in question.
Since the division of assets can be confusing, we recommend hiring legal counsel to ensure all communication with the court reflects your wishes. This recommendation stands for couples who agree, as much as it does for our clients’ who disagree on what they feel is fair.
Divorce is never any couples first choice, and dividing the life you built together can cause further stress. Let our qualified family law professionals help!
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Equitable Division of Property in a Utah Divorce
When we meet with new clients, they often ask us how the judge overseeing the case will divide their property. Spouses who are getting divorced always have the option of negotiating their own settlement agreement. When you and your spouse can agree on how to divide property, you can negotiate the agreement yourself with the help of your lawyers. If you cannot agree with your spouse, a family court judge will need to divide your marital property for you.
Sometimes people assume their property will be divided in a 50/50 split between them and their spouse. However, Utah is not a community property state in which a judge divides the property equally between the spouses. Instead, Utah judges use a legal doctrine called equitable division of property to divide the marital property between spouses.
While a judge may divide the marital property equally, most of the time, judges do not split the property equally in Utah. Judges seek to divide the property fairly and reasonably based on each spouse’s contribution to the marital property. Judges also consider each spouse’s projected future financial needs. Additionally, judges consider how much financial support each spouse will need to maintain the standard of living to which they have become accustomed.
Separate Property Vs. Marital Property
The first step in the division of assets involves determining which property is marital and which is separate. Judges will only divide the property they consider the marital property after the divorce becomes finalized. Likewise, judges only divide marital debt, not debt one spouse acquired separately. Each spouse will have a right to keep his or her own separate property after the divorce.
Marital property includes any property earned or acquired during the marriage, including earned income. Any property used to benefit the marriage may also be considered marital property, even if it began as separate property. The following types of assets are considered marital property in Utah in most cases:
- Debt owed to a bank or mortgage company taken on during the marriage
- Property, vehicles, and household furnishings
- Investments, stocks, and bonds
- Businesses or partnerships
Separate property includes any property that belongs to one spouse before the marriage and remains separate throughout the marriage. Separate property also consists of any property given to one spouse as a gift during the marriage. For example, if the wife inherited property, that would be considered separate property. Likewise, if a friend gave the husband a gift for his birthday, that would be considered separate property.
Separate property frequently includes the following:
- An inheritance given to one spouse
- Gifts given to one spouse
- Property obtained after filing for divorce
- Property obtained by one spouse before the marriage
Factors Utah Judges Consider When Division Property
Utah judges use multiple factors to determine how to fairly and equitably divide marital property in a divorce. In many cases, they will consider the length of the marriage and how the spouses work together to acquire marital property. They will also consider each spouse’s health and ability to earn an income after the divorce. Specifically, they will consider the child care costs, the level of education, medical needs, and earning potential of each spouse.
Utah Considers Alimony in the Equitable Division of Property
Under Utah Law, courts consider alimony as part of the equitable division of marital property. Alimony, also called spousal support, is a payment from one spouse to the other spouse. The goal of alimony is to help the spouse receiving the alimony maintain a lifestyle as close as possible to the standard of living they enjoyed during the marriage or during separation. When a court decides that it is more equitable to do so, it might base the alimony payment on the standard of living the spouse has had at the divorce trial.
Utah judges can consider either spouse’s fault in the deterioration of the marriage when determining the amount of alimony due. They can also consider each spouse’s earning capacity, Financial Resources, whether the spouse worked in a business owned or operated by the paying spouse, and other factors. Typically, a judge will only award alimony payments for the number of years that the marriage lasted.
Division of Real Property
You may be wondering what will happen to your family home. As with any other marital property, Utah judges divide real property fairly and equitably for both spouses. Real property includes any land or house purchased by either spouse during the marriage, even when only one spouse’s name is on the title or deed. Sometimes courts will award one spouse the house and give the other spouse assets of equal value.
In other cases, the court will require the spouses to sell the house for a fair market value and divide the assets from the sale of the house between the spouses. If one spouse keeps the property after the divorce, he or she will probably need to refinance the house so that the mortgage is solely in his or her name. If you are concerned about losing your home and do not want to sell it, our attorneys can work with you to negotiate with your soon-to-be ex-spouse. We will attempt to draft a settlement agreement that will allow you to keep your home.
Division of Property and Retirement Benefits
Many of our clients are understandably concerned about how their retirement benefits will be divided during the divorce. Any amount either spouse paid into any type of retirement, or pension plan is considered marital property. When each spouse has his or her own retirement plan, courts will typically award each spouse their own benefits.
However, suppose just one spouse has a retirement plan. In that case, the judge will typically allow that spouse to keep his or her own benefits and award the other spouse something of equal value, such as equity from the family home or other personal property. Judges sometimes split retirement plans between spouses, a process that requires a separate court order and is more complicated than awarding one spouse the retirement account.