When your marriage ends, it is more than the end of a relationship and a change in how you relate to the other parent of your children. The property and assets shared during the marriage will also be divided between you both. This process often generates as much tension as conflicts over child support payments or custody plans.
Reasons To Hire A Property Division Lawyer
• The property each spouse brings into the marriage is considered separate property, owned entirely by that person.
• All assets and property acquired between the date of marriage and the date that the couple separated with the intent to divorce are considered marital property, owned jointly by both members of the couple.
• Marital property is divided equally (50-50) in a divorce, regardless of who purchased it or in whose name it is titled.
In practice, the division of property can be far less straightforward, especially if one or both spouses have sizeable retirement accounts, own a business, or receive executive-level bonuses. Additionally, the judge may consider the principle of equity in awarding property based upon factors that include:
• The age and health of each spouse
• The occupations and earning power of each person
• The value of each person’s separate property
• The needs of any children impacted by the divorce
• If either spouse wasted assets or engaged in martial fraud
Simply put, there is far too much at stake, both materially and emotionally, to leave the division of assets to the whims of your ex. Our firm will educate you about your property rights and fight for an optimal resolution for you. Division of assets and debts can be one of the trickier parts of a divorce or separation, not just because of the amount of money involved. It is important to divide all assets and debts fairly, not only to end the phase of your life that was spent together, but also to be in the best position possible to begin the next stage of your life.
Common Complications
Property division is legislated under the Family Law Act and is normally fairly simple — aside from the fate of assets such as the marital home. However, a number of issues may affect your division of property, including:
• International Property: We will examine both the value of your property and any differences in the laws governing how it is divided at the end of a relationship.
• Prenuptial Agreements: Also referred to as prenups are especially common if either partner brought significant assets before the marriage, and may exempt some property from being treated as a common asset.
• Disagreements over the Value of Property: If your property is complex and includes investments and business assets, our lawyers may recommend bringing in specialized professionals such as accountants and business valuators.
• Hiding Assets: Full disclosure of all assets is essential to fair property division. The courts treat any dishonesty or lack of forthrightness very harshly, just as they do lack of honesty in disclosing income for child and spousal support.
Utah law requires equal and fair division of all marital property, which does not necessarily mean a 50/50 split. The court will take into consideration each spouse’s contribution to the acquired marital property and assets, regardless of income, and each spouse’s future needs. All marital property can be divided, regardless of location or whose name is listed on the title or deed. Utah law requires equal and fair division of all marital property, which does not necessarily mean a 50/50 split. Long-term marriages may end up as a 50/50 split or may be fairly distributed as more or less than 50 percent. For short-term marriages, the court may attempt to restore each spouse to their individual economic standing prior to the marriage.
Marital vs. Non-marital Property
Marital property is considered any property, income, other assets, or debt acquired during the marriage. The most common marital property is real property of land and any structures or buildings attached to it, such as a house. Personal property such as cars, jewellery, and furniture can also be considered marital property. Property can be considered marital even if a title or deed is only in one spouse’s name. Marital property can also include retirement or pension plan benefits.
Non-marital property is generally considered any property owned or acquired prior to the marriage. A gift or inheritance received by one spouse during the marriage may also be considered non-marital property. At the end of the marriage, each spouse keeps his or her own non-marital property. However, if any non-marital property was used to somehow benefit the marriage, it can legally be considered marital property.
Division of Real Property
Real property includes any houses or land purchased during the marriage, even if only one spouse’s name is on the deed or title. Real property is commonly sold and the money from the sale is divided fairly between each spouse. If one spouse desires to keep the house or property, that spouse may buy out the other by paying the amount that would have been received from a sale. This option may require the spouse who keeps the property to refinance so that everything is in his or her own name.
Division of Personal Property and Retirement Benefits
Personal property can include items acquired during the marriage, such as cars, boats, jewellery, furniture, dishes, tools, and more. As with real property, personal property may be considered marital property even if only one spouse’s name appears on the title. The primary goal in the division of personal property is to provide each spouse with enough items to create a separate home. Therefore, if there are two of the same items, each spouse gets one. Any amount paid into any type of retirement or pension plan is also considered marital property. In cases where each spouse has his or her own retirement plan, each is awarded their own benefits. If just one spouse has a retirement plan, it is often better to allow that spouse to keep his or her own benefits and award something of equal value to the other spouse, such as equity from the home or other property. Retirement plans that must be split require a separate court order and a more complicated process.
Factors Affecting Property Division
If you and your spouse cannot amicably divide assets and debts, the court will do it for you. In most cases, it is better that you come to an agreement on the fair and equitable distribution of property. While the court will come to a fair and equitable distribution, you may not get an asset that you want.
When determining how to divide assets equitably, courts consider:
• How long the parties were married
• Each spouse’s contributions to the marriage
• The future needs of each spouse
• Alimony awards
• Child custody
• The health and age of each spouse, which includes employability, potential retirement, and business chances after the divorce
• The occupation of each spouse, which determines earning power
• Each spouse’s education as it pertains to employability
• The non-marital assets of each spouse
Debts are considered in much the same way, but do have some additional parameters:
• Premarital agreements
• Real property may be sold, one spouse may buy the other out, or one spouse may keep the marital home in exchange for other assets. If the real property is sold, equity is divided equitably between the spouses. Generally, if one spouse keeps the house, that spouse is responsible for the mortgage. If possible, the mortgage should be refinanced to protect the other spouse.
• Vehicle payments are generally paid by the spouse who keeps the vehicle. If the parties have two vehicles, each spouse gets one along with the corresponding car payment.
Retirement plans and pension benefits are handled a bit differently. In most cases, if a plan or benefit is considered a marital asset, the person whose name is on the account gets it. However, if the plan or benefit skews the equitable distribution, the court will split it. If only one spouse’s name is on the plan or benefit, the court enters a qualified domestic relations order (QDRO) to order the account holder to divide it between the spouses as dictated by the court.
How Is Property Value Determined?
The amount of money a piece of property is worth is defined as a fair and impartial assessment of the property’s value. An accurate evaluation of real property value is determined by a professional real estate appraiser. In general, household items are not included in the division of assets during a divorce unless there are items of significant value. Personal property like furniture, collectibles, and vehicles will be determined by the resale value. In Utah, if you and your spouse can agree to a fair and reasonable division of property, the court will accept both spouses’ decision as long as it’s fair and reasonable. If you, on the other hand, cannot agree without getting the court involved, the marital estate and other property will be divided within the Judgement of Divorce by the district or family court in Utah. In fact, property division cannot be revisited or altered after the order has been made, though there are exceptions.
How Utah Courts Divide Property In Divorces
What makes equitable distribution in Utah so confusing and unpredictable is that judges in the state almost never rely on some fixed and definitive rules when it comes to dividing property in a divorce. Instead, judges in Utah enjoy discretion to take into account all factors and circumstances of each marriage before issuing a Judgement of Divorce. But in no way does it mean that judges in Utah have freedom to divide marital property however they see fit. Courts still consider a variety of factors in equitable distribution such as:
• The length of the marriage;
• The age and health of both spouses;
• The employment occupations of both spouses;
• The sources and amount of each spouse’s income;
• How the spouses acquired the marital property;
• Post-divorce medical needs and childcare costs faced by each spouse;
• Each spouse’s level of education and earning potential; and
• The economic impact of the divorce on each spouse.
Property division is an important part of any divorce process, whether you and your spouse have come to an amicable agreement or if you are litigating your case in court. Many people assume that you only need to hire divorce lawyers if you are going to court. But attorneys trained in mediation or collaborative divorce techniques can actually make your divorce easier for both parties involved.
What Goes Into The Property Division Process?
Some aspects of the marriage that are taken into consideration when dividing property include:
• How long the marriage lasted
• Which spouse had a higher income
• Whether or not there was a prenuptial agreement
• If children are involved
Marital Property vs. Separate Property
All of the marital property must be divided between the spouses when the marriage ends, and marital debts must be assigned. The spouse who owns separate property keeps that property; it can’t be awarded to the other spouse. Marital property is property acquired or earned during the marriage, including earned income. Property used for the benefit of the marriage, even if it started out as separate property, may also be marital property. Separate property belongs to one spouse before marriage and was kept separate throughout the marriage. It could also include property given only to one spouse during the marriage, like a gift made to the husband alone or an inheritance that the wife received. Property owned by the spouses before the marriage or received by gift or inheritance during the marriage is usually not considered to be marital property. Generally, each spouse keeps his or her non-marital property, unless that property has been combined with marital property or is used in such a way that it becomes marital property. In Utah, courts consider alimony as part of the equitable division of marital property.
Property Defined
Property is either marital or separate, and it includes assets and liabilities. Property includes real property, such as the family home; personal property, such as jewellery and clothing, and intangible financial assets such as income, dividends, and benefits. Real property is land and anything permanently attached to it, such as a house or other buildings. Real estate purchased during the marriage is generally marital property even if only one spouse’s name is on the deed. Generally, personal property can be moved. This includes things like cars, jewellery, furniture, tools and dishes. If the property has a legal title, such as a car or boat, and it was purchased during the marriage, it will generally be considered marital property even if only one spouse’s name is on the title. The general rule for dividing personal property is to allow each person to set up a separate home. Generally, if there is two of something, each party receives one of them.
Valuing and Dividing Property
First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in an equitable manner. In Utah, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free. High-asset divorce cases raise complex accounting, valuation and liquidation questions. Often expert witnesses in complex cases are required to assist the court.
Property Division Attorneys
When you need legal help to divide property in a divorce case, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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