Why is dividing money in a divorce so difficult? Shouldn’t it be as simple as each takes what each earned?
In Utah (where I practice law), the law is not “take what we each earned.” In Utah, the law is:
“Marital property is ordinarily all property acquired during marriage and it encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived. (Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct.App.1990)”
See also Keyes v. Keyes, 351 P.3d 90, 99 (Utah Ct.App. 2015):
¶ 28 In addressing the distribution of property between divorcing spouses, the trial court must first determine whether the assets in dispute are marital or separate property. Dahl v. Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566. “Marital property is ordinarily all property acquired during the marriage … whenever obtained and from whatever source derived.” Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct.App.1990) (citation and internal quotation marks omitted).
“In Utah, marital property is ordinarily divided equally between the divorcing spouses….” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 13, 176 P.3d 476. After identifying property as marital, the court must “consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally,” “assign values to each item of marital property so that [a] distribution strategy … can be implemented,” and “distribute the marital assets consistent with the distribution strategy.” Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566 (alteration and omission in original) (citation and internal quotation marks omitted).
On the other hand, “separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.” Stonehocker, 2008 UT App 11, ¶ 13, 176 P.3d 476 (citation and internal quotation marks omitted). In most cases, “equity requires that each party retain the separate property that he or she brought into the marriage, including any appreciation of the separate property.” Dunn, 802 P.2d at 1320. Separate property may lose its separate *99 character, however, “through commingling” or if “the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property.” Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). In making this assessment, the court “look[s] to a party’s actions as a manifestation of a spouse’s intent to contribute separate property to the marital estate.” Dahl, 2015 UT 23, ¶ 143, 345 P.3d 566.
After you marry, your income from employment is marital property, not your separate property. That means that during the marriage your spouse has a right not just to half of your income, but all of it (your spouse has no spousal claim to all—or even half—of your income when he/she ceases to be your spouse). This also means that in the case of a divorce your spouse will get half of any retirement funds you save or benefits you accrue during the marriage. And even after divorce your spouse can get a portion of your income in the form of alimony, if your spouse came to be dependent upon you financially to maintain the standard of living to which he/she became accustomed during the marriage.