Property Division


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You are not required to hire an attorney, but dividing property in a divorce can be complicated. Consider talking to an attorney to go over your options. One way to talk to an attorney is to visit a free legal clinic. Clinics provide general legal information and give brief legal advice. You might also hire an attorney for just part of your case or to do one particular thing, rather than represent you for the whole case. For more information, see our page on Finding Legal Help.


Introduction

One of the issues to be settled in a divorce is the division of property acquired during marriage. Utah law recognizes that both spouses contribute to the property acquired during the marriage, regardless of the income source. The court can divide all marital property regardless of which spouse holds title to the property or where it is located.


How property is divided in a divorce

Utah law requires an equitable division of marital property. Equitable means fair, which is not necessarily equal. If the parties agree as part of the divorce or annulment how to divide their property, the judge must review the agreement to be sure that it is fair. Property division cannot be reopened after the order is final, except under limited circumstances.

Deciding what is a fair distribution of property includes several factors, such as how long the marriage has lasted, the age and health of the parties, their occupations, the amounts and sources of income and related matters.

For long-term marriages, equitable may mean a 50-50 split, or the court may decide that it is fair to give one party more or less than 50% of the property.

For short term marriages, the court may put the people back into the economic position they had before the marriage. In other words, he gets what was his at the beginning of the marriage, and she gets what was hers.


Non-marital property

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 party gets to keep their non-marital property, unless that property has been combined with marital property or is used in such a way that it takes on the legal status of marital property.


Premarital agreements

The distribution of property between divorcing spouses may be established by a valid premarital agreement. Under the Uniform Premarital Agreement Act agreements made in contemplation of marriage become effective upon marriage. A valid premarital agreement can affect real and personal property, including earnings, other income, and retirement benefits. A premarital agreement cannot govern child support, a child's healthcare insurance or expenses, or child care expenses.


Real property

Real property is land and anything permanently attached it, such as a house or other buildings. If real property was purchased during the marriage, it will generally be considered marital property even if only one spouse's name is on the deed. Often the real property is sold, and the money from the sale is divided fairly between the parties. However, one party may buy out the other by giving them what they would have gotten if the property had been sold. Sometimes, one person may be ordered to refinance the mortgage in the name of the person who keeps the real property.


Personal property

Generally, personal property is property that can be moved. This includes things like cars, jewelry, 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 are two of something, each party will receive one of them.


Retirement and pension plan benefits

Retirement and pension plans may include defined benefit plans, defined contribution plans, 401(k) plans, state and federal government retirement or pension plans, private employer benefits, and some military retirement benefits. Retirement and pension plans may be regulated by federal and state law and by plan policies. As a general rule, anything paid into any type of retirement or pension plan by either party from the date of the marriage to the date of the divorce is marital property.

Generally, if both spouses have retirement or pension plan benefits, each will be awarded their own benefits. Utah courts have recognized that it is best for the spouse who contributes to the retirement or pension plan to receive all of the benefits and for the other spouse to receive something of equal value, such as equity from the home or cash or other property. If there is nothing of equal value to give to the other spouse, then the retirement benefits may have to be split.

Spouses may agree between themselves how much of a retirement account each spouse should receive. If the spouses cannot agree to how much each spouse is entitled to, the judge will apply the formula from the Utah Supreme Court case of Woodward v. Woodward, 656 P.2d 431 (Utah 1982): multiply one-half of the value of the account by the number of years the parties were married and divide by the number of years the employee has worked. For example, if the account value is $30,000 and the parties were married for 7 years and the husband worked for 12 years, the wife' s share would be $8,750:

$30,000 x 1/2 = $15,000
$15,000 x 7 = $105,000
$105,000 / 12 = $8,750

Other factors affect this formula, including the date of separation, or whether one of the spouses has done something unreasonable, such as spending, destroying, or giving away marital property.

If a retirement account is to be split or transferred to the other spouse, then a special order, separate from the divorce decree, called a Qualified Domestic Relations Order, or QDRO (pronounced kwădrō) must be signed by the judge. The person who administers the retirement or pension plan cannot divide an account or pay benefits to a spouse who did not contribute to the plan without a QDRO. Once a QDRO is signed by the judge and approved by the plan administrator, the plan administrator will divide the account or pay the benefits according to the QDRO, rather than the pension plan.

Most pension plan administrators have a QDRO packet with instructions and sample documents or forms. The person whose name is on the account will have access to the account information and can request the packet. If the other spouse requests the plan information, the spouse whose name is on the account may have to sign a release.


Related information


Page Last Modified: 12/13/2013
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