Marital property might reasonably be defined as property acquired during the course of a marriage. In Utah, though, there are no clear definitions of what marital property is, and thus conflict may arise in the event of a divorce in how marriage property is divided. Ideally, in an amicable divorce, spouses would reasonably divide property as they deem suitable. Of course, not all divorces are amicable, and determining how property is divided may be difficult and require the intervention of the courts. For these situations, the court has Utah Code 30-3-5 // insert link here: https://le.utah.gov/code/TITLE30/htm/30_03_000500.htm // to help determine how property will be divided.
Utah law recognizes that both spouses make contributions throughout a marriage despite the main income source. The standard Utah courts use for dividing marital property is equitable division. This term may be misconstrued as equal division. Utah courts usually define equitable division as fair division of property rather than equal division of property. Fair division may include a number of factors including, but not limited to:
- Age and health of involved parties;
- Occupations of involved parties;
- Income sources and amounts.
In rare instances of amicable divorce where both parties agree on how property is divided, a judge must review the agreement to ensure that it is fair. Once the order is final, property division cannot be reopened except in limited circumstances.
In long term marriages, the court may determine equitable division as a 50 – 50 split. Depending on the above factors, though, the court may decide that one party may receive less than 50% of the property.
For short term marriages, the court may determine equitable division as returning both parties to the economic position they experienced before the marriage. This can mean that one husband or wife may receive what is determined as his/hers before the marriage, while the other spouse receives what was his/hers as well.
When considering which property is separate from marital property, the court may refer to state code 30-2-5 //insert link to: https://le.utah.gov/xcode/Title30/Chapter2/30-2-S5.html// in issuing the order. When a judge seeks to “divide the property equitably regardless of its source or time of acquisition,” the court may defer to Utah state code 30-3-5 //insert link: https://le.utah.gov/xcode/Title30/Chapter3/30-3-S5.html?v=C30-3-S5_1800010118000101//
In short, there is no fixed formula in determining how property will remain separate from marital property. The court will consider a number of factors, such as those mentioned above, and will take into consideration debt accrued by both parties during the marriage. Much of these decisions will depend on previous case law.
Real property is generally considered land and structures permanently attached to it, such as a house. If real property was purchased during the marriage, it is generally considered marital property, even though only one spouse’s name may be attached to the deed. Often, the property or properties may be sold and the income from the sales are divided fairly between the two parties, though one spouse may buy out the other’s claim on the property or properties by providing what that party may have received in the event of the sale of the property or properties. In some cases, one party may be ordered to refinance the property or properties in the name of the party that retains the property or properties.
Personal property is generally defined as items that can be moved, or are unattached to a fixed location. This may include furniture, jewelry, automobiles, etc. Titled properties, such as cars or boats, purchased during the marriage are usually considered marital property, since it is assumed both parties assisted in paying the accrued debt. The general motivation for dividing personal properties is to assist both parties in establishing a separate home. If there are two of something, such as an automobile, then each will receive one of the.
The most definitive method of ensuring how property is divided in your favor, or in a manner that seems just to you, is through the establishment of premarital or prenuptial agreements. Under the Uniform Premarital Act //link to: https://le.utah.gov/UtahCode/section.jsp?code=30-8//, these agreements become effective upon marriage. While the conversation about premarital agreements may be awkward when discussing plans of marriage, some may see them as vital and necessary. A valid premarital agreement may affect real and personal property, as well as establishing marital property, and other income such as retirement benefits. These agreements cannot govern child support, child care expenses, or a child’s healthcare insurance or expenses.
Amicable division of property will always be the most preferred method dividing properties. These are rare instances, as many divorces are a result of tumultuous situations and circumstances, where both parties may be reluctant to allow the other any concessions. For these situations, a fair, knowledgeable and reasonably aggressive attorney will ultimately be the best tool in your quest for fair and equitable division of properties.