If you get a divorce but everything is in your name, do you have to split it?

If you get a divorce but everything is in your name, do you get to keep everything or do you have to split it? 

I will answer your question in the context of the law of the jurisdiction where I practice divorce law (Utah): 

First, a short answer to your question: whether property acquired in the individual name of a spouse during a marriage (other than by gift or inheritance) does not somehow shield that property from being awarded in whole or in part to the other spouse in divorce. 

Second, it will be helpful to understand a few terms that are key to understanding property in divorce (See Black’s Law Dictionary (11th ed. 2019)): 

– marital property. Property that is acquired during marriage and that is subject to distribution or division at the time of marital dissolution. • Generally, it is property acquired after the date of the marriage and before a spouse files for separation or divorce. The phrase marital property is used in equitable-distribution states and is roughly equivalent to community property. — Also termed marital estate; matrimonial property. 

– separate property. 1. Property that a spouse owned before marriage or acquired during marriage by inheritance or by gift from a third party, and in some states property acquired during marriage but after the spouses have entered into a separation agreement and have begun living apart or after one spouse has commenced a divorce action. — Also termed individual property. 

– community property. Assets owned in common by husband and wife as a result of their having been acquired during the marriage by means other than an inheritance by, or a gift or devise to, one spouse, each spouse generally holding a one-half interest in the property. • Only nine states have community-property systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. A community-property regime is elective in Alaska. 

– quasi-community property. Personal property that, having been acquired in a non-community-property state, would have been community property if acquired in a community-property state. • If a community-property state is the forum for a divorce or administration of a decedent’s estate, state law may allow the court to treat quasi-community property as if it were community property when it determines the spouses’ interests. 

– equitable distribution (1893) Family law. The division of marital property by a court in a divorce proceeding, under statutory guidelines that provide for a fair, but not necessarily equal, allocation of the property between the spouses. • With equitable distribution, when a marriage ends in divorce, property acquired during the marriage is divided equitably between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, and the length of the marriage. The court may take into account the relative earning capacity of the spouses and the fault of either spouse. Equitable distribution is applied in 47 states (i.e., all the states except California, Louisiana, and New Mexico, which are “equal division” community-property states). — Also termed equitable division; assignment of property. 

Utah is an equitable distribution state in the context of divorce. Here is how Utah defines the difference between separate and marital property, and what a divorce court is empowered to do with separate and marital property. See Lindsey v. Lindsey, 392 P.3d 968 (Utah Ct.App. 2017), 2017 UT App 38: 

When distributing “marital property in a divorce proceeding, the overriding consideration is that the ultimate division be equitable—that property be fairly divided between the parties.” Granger v. Granger, 2016 UT App 117, ¶ 15, 374 P.3d 1043 (brackets, citation, and internal quotation marks omitted). To that end, a trial court must first “identify the property in dispute and determine whether it is marital or separate.” Dahl v. Dahl, 2015 UT 79, ¶ 121, ––– P.3d –––– (brackets, citation, and internal quotation marks omitted). Marital property ordinarily includes “all property acquired during 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). Separate property ordinarily includes premarital property, gifts, and inheritances, including any appreciation that may accrue during the marriage. SeeDahl, 2015 UT 79, ¶ 143, ––– P.3d ––––; Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). 

¶ 32 The presumption is that marital property will be divided equally while separate property will not be divided at all. See Dahl, 2015 UT 79, ¶ 121, ––– P.3d ––––; Dunn v. Dunn, 802 P.2d at 1323. Married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce. SeeMortensen, 760 P.2d at 308. Thus, equity generally requires that “each party retain the separate property he or she brought into the marriage, including any appreciation” thereof. Dunn, 802 P.2d at 1320, 1323; accordDahl, 2015 UT 79, ¶ 143, ––– P.3d ––––; Mortensen, 760 P.2d at 308. 

¶ 33 But separate property “is not totally beyond a court’s reach.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (brackets, citation, and internal quotation marks omitted). Before carving property out of the marital estate, a trial court must consider whether circumstances warrant an equitable override of the separate-property retention rule. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. Three circumstances have been identified under Utah law as supporting an award of separate property at the time of divorce. These exceptions are when separate property has been commingled; when the other spouse has augmented, maintained, or protected the separate property; and in extraordinary situations when equity so demands. SeeMortensen, 760 P.2d at 308; Dunn, 802 P.2d at 1320. 

Utah Family Law, LC | | 801-466-9277  

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