Tag: marital assets

If Your Husband Files for Divorce, Can He Ask You to Leave the House Immediately?

I can’t speak for the law in all jurisdictions, but I can tell you what the law is where I practice divorce law (Utah).

Can your spouse ask you to leave the house upon filing for divorce or upon announcing that he or she intends to file for divorce? Sure. Anyone can ask. Can your spouse force you out of the house? That’s a different question.

If the couple acquired their house while married, but unless they structured the purchase in a very unusual and very specific and clear way, so as to ensure that both spouses do not jointly own the property, property acquired by either spouse in his or her own name during the marriage is nevertheless considered marital property, with the exception of property that is acquired by a spouse by gift or by inheritance.

Most married couples by their house together, having it titled jointly in their collective names. If a spouse files for divorce and then turns to the other and says, “Get out of my house,” such a command or demand has no legally enforceable basis.

It gets a little trickier if you’re confronted with the situation when, say, a woman owns a house before she marries, and then after she marries, she and her husband move into her house together. If the husband does not contribute to the mortgage payment, or to the maintenance or improvement of the wife’s house, in the event of divorce she might very well have the legal authority to tell him to “get out of my house,” after all it is her house (the scenario would be no different if the husband owned the house before he married the wife, in case you were curious and unsure). The husband has not acquired any ownership interest in it merely by being married to the owner of the house.

Utah Family Law, LC | | 801-466-9277

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Why is it so easy to get married, and so hard to get divorced?

Why is it so easy to get married, and so hard to get divorced? Shouldn’t it be the other way around? 

This is a perceptive question. 

It would not not be that hard to get divorced if you were to give up everything in the divorce. If you told your spouse, “I want a divorce so bad I’ll make this as easy for, and as advantageous to, you as possible by waiving any and all rights to the marital assets, spousal support, the kids, everything,” you could get divorced relatively quickly and without having to incur any attorney’s fees. Heck, your spouse might gleefully pay an attorney to draw the “my spouse is giving away the farm” divorce action and settlement agreement. Of course, while getting the divorce that way would be fast, easy, and cheap, you’d pay a dear personal price—in both the short and the long run—in almost every other aspect.  

When you think about it, there are many endeavors that are easy to enter but prove to be very difficult to finish or exit (or at least to finish or exit comfortably): 

  • college (easy to enroll, get loans), hard to finish, hard to pay off student loans, especially if you drop out and still have to pay the loans off 
  • business (easier to get into than to stay in, and brutal to experience a business failure) 

And marriage is another. The longer one is married, the harder a divorce usually is due to so much having been invested in a marriage of long duration. It’s easier for two single, childless people to marry than for two married people to divorce who acquired property/assets and incurred debt and who may have begotten minor children (to say nothing of the disruption divorce inflicts on the physical and emotional reliance upon each other that spouses develop over time). With this in mind, it’s hard to conceive a way by which we could reasonably and responsibly make easier than marrying the dividing the property/assets, apportioning responsibility for marital debts and obligations, and determining the custody of minor children in divorce.  

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

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When do courts value the marital estate?

When do courts value the marital estate? At time of separation, or at the time the court enters the Decree of Divorce? 

This is a question that often causes divorcing people’s heart to sink. I’ll tell you why, but first, let’s answer the question of whether courts value the marital estate in a divorce action: at time of separation, or at the time the court enters the Decree of Divorce? 

The first answer to this question is: the court can value the marital estate at any time, if it can articulate a good reason for doing so.  

“Generally, the marital estate is valued at the time of the divorce decree or trial.” Jacobsen v. Jacobsen, ¶ 39, 257 Pacific.3d 478 (cleaned up). However, as with alimony, the court has broad discretion to use a different date so long as its decision it supported by “sufficiently detailed findings of fact explaining its deviation from the general rule.” Id.; see also Rayner, 2013 UT App 269, ¶ 19, 316 P.3d 455 (“A trial court has broad discretion to deviate from [the] general rule when circumstances warrant.” (cleaned up)). “As a general rule, the marital estate is valued at the time of the divorce decree,” Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct.App.1993); see also Berger v. Berger, 713 P.2d 695, 697 (Utah 1985), and that “any deviation from the general rule must be supported by sufficiently detailed findings of fact that explain the trial court’s basis for such deviation,” Rappleye, 855 P.2d at 262. 

Utah case law suggests a number of factors that may be relevant to determining whether a party should be held accountable for the dissipation of marital assets: how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses, Parker, 2000 UT App 30, ¶¶ 13, 15, 996 P.2d 565; Thomas, 1999 UT App 239, ¶ 20, 987 P.2d 603; Shepherd v. Shepherd, 876 P.2d 429, 433 (Utah Ct.App.1994); Andersen v. Andersen, 757 P.2d 476, 480 (Utah Ct.App.1988); the parties’ historical practices, Thomas, 1999 UT App 239, ¶ 20, 987 P.2d 603; the magnitude of any depletion, Shepherd, 876 P.2d at 433; the timing of the challenged actions in relation to the separation and divorce, id.; and any obstructive efforts that hinder the valuation of the assets, Goggin, 2013 UT 16, ¶¶ 49, 53, 299 P.3d 1079; Andrus v. Andrus, 2007 UT App 291, ¶ 13, 169 P.3d 754. After an “initial showing of apparent dissipation” by one party, the burden shifts to the other party “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” Parker, 2000 UT App 30, ¶¶ 13, 15, 996 P.2d 565. 

Utah Family Law, LC | | 801-466-9277 

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What would happen if there were no alimony or splitting assets in divorce without kids?

That is an interesting question. Before I answer it, know this: anyone who is motivated to marry on a “what’s in it for me?” basis and who stays married motivated by a “what’s in it for me?” basis is likely to be unhappy in his/her marriage and likely will end up divorced. Marriage success and happiness depends upon the couple’s mutual devotion to each other, to the family they make together, and placing the interests of their marriage and family ahead of their own, individual self-interest.

Here is what I believe would happen if there were no more alimony or splitting of assets in divorce proceedings when a married couple has no children:

  • the desire for certain women to marry would plummet. Why? It’s politically incorrect to state the following, but it is no less true: many women (not all) marry so that their husbands (and now, in the case of lesbian couples, their wives) will provide for them (and only for them, not for children the couple may have) financially. If this kind of woman (i.e., a woman who relied on her spouse financially) knew that she would get no alimony upon divorce and wouldn’t get half of the funds the spouse saved and half of the retirement funds the spouse accrued during the marriage, there is a certain kind of woman who would not marry.
    • Do not misunderstand me: a woman (or man) who foregoes pursuing a career so that the couple can have children and rear a family together in the best possible conditions, with one parent staying home to care for the children instead of working outside the home, is a spouse who, if she/he has lived up to that commitment, deserves alimony if the marriage ends in divorce. The traditional family, i.e., where the children have a stay at home parent, is the optimal way to rear children who will be themselves physically and mental healthy, decent, productive adults. Some families cannot afford to have a parent stay at home. There is no shame in that. But when both spouses work even though they both don’t need to work, and where such spouses have children and warehouse those kids in daycare, they are doing themselves and their children a disservice that cannot be compensated for.
  • the desire for a percentage of heterosexual men to marry would increase. Many such men have seen their fellow male friends and family members financially ruined by alimony and by losing so much of what they worked so hard for in divorce. This causes many men to fear and avoid marriage to a woman out of concern that divorce will ruin them. Many husbands of childless couples who knew that their wives would not profit from divorce would not fear divorce nearly as much as they do now.
    • Do not misunderstand me: there are many men who are devoted to their wives and children. Their wives and family are a labor of love for whom them willingly and gladly sacrifice their time, effort, and income. There are many decent men, however, whose wives are not themselves decent people who are equally devoted to their husbands and families. Men who marry gold diggers are justifiably upset when the gold diggers try to profit from divorce.

Now if, after you read this answer in its entirety, you conclude that “marriage is for suckers,” you have missed the point completely.

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

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Can I protect marital assets from my spouse by “temporarily gifting” them?

Can I protect marital assets from my spouse by “temporarily gifting” assets to somebody else until after the divorce is final?

Can you? Like is it doable? Sure, you can do it. And many divorcing people do this very thing successfully (meaning they get away with it).

But is it legal? No.

Translated, your question really means: “Can I hide or hog marital assets from my spouse by falsely claiming to have “gifted” the assets to someone without ever intending to give the assets away but in fact intending to get them back after falsely claiming to have gifted them away?”

As you might imagine, this has been tried before. Courts and legislatures have noticed this kind of thing is tried all the time, which is why it’s illegal.

There’s even a term for it: fraudulent transfer. A fraudulent transfer in divorce occurs when one spouse someone knowingly transfers ownership of marital property in an attempt to deprive the other spouse of his/her portion of the ownership or value of the marital property.

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

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Why is dividing money in a divorce so difficult? Shouldn’t it be as simple as take what each earned?

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.

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