Property Division
Introduction
This page explains how property is divided in a divorce, including real estate, personal property, and retirement accounts.
Generally, the court will divide all property acquired during the marriage (marital property). Courts recognize that both spouses contribute to marital property. Income is only one factor that courts consider. The court can divide all marital property, regardless of which spouse holds title to the property or where it is located.
Money questions in divorce can be tricky. And hard to change once the court signs a decree. You may want a licensed professional to look at your papers before you file. See our Finding Legal Help page to learn more.
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
Generally, anything paid into any retirement or pension plan must be divided equitably. This applies to both parties, from the date of the marriage to the date of the divorce.
If both spouses have retirement or pension plan benefits, the court will usually award each spouse their own benefits. As a general rule, 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. Something of equal value might be equity from the home or cash or other property. If there is nothing of equal value to give to the other spouse, the court might have to divide the retirement benefits.
Spouses may agree on how much of a retirement account each spouse should receive. If they can’t agree, then how the retirement plan is divided will depend on the kind of plan involved. The table below details the different kinds of retirement plans and how they are divided.
|
Type of plan |
Defined benefit plans |
Defined contribution plans |
|---|---|---|
Definition |
A plan that defines an employee’s benefits as a certain amount per period of time |
A plan where both the employee and the employer contribute to the retirement account |
Examples of plan types |
Pensions and state or federal retirement plans |
401(k) plans, 403(b) plans, employee stock ownership plans, and profit-sharing plans |
How the plan is divided |
As the parties agree, but if they can’t agree, the judge will apply this formula (sometimes called the Woodward formula): 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
The court might also consider factors like: the date of separation, or whether one of the spouses has done something unreasonable, such as spending, destroying, or giving away marital property |
As the parties agree, but if they can’t agree, there is not a clear formula. The court must divide the property fairly between the parties. The court considers the parties’:
The court should evaluate all relevant factors and circumstances in making such a determination |
QDROs
If a retirement account is to be split or transferred to the other spouse, then a special order must be signed by the judge. This is called a Qualified Domestic Relations Order, or QDRO (pronounced kwădrō). This happens after the divorce decree is signed. The company or agency that administers the retirement or pension plan can’t divide an account or pay benefits to a spouse who did not contribute to the plan without a QDRO.
How to get a signed QDRO:
- Contact the company or agency that administers the retirement or pension plan (the plan administrator) and ask them for a QDRO packet. 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. The plan administrator should send you instructions and sample forms.
- Fill out the forms and send them back to the plan administrator to make sure they will accept your papers.
- If they approve your proposed QDRO, file it with the court for signature.
- Send the final copy to the plan administrator for processing.
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.
If one party refuses to cooperate to obtain a QDRO, see our page on Motion to Enforce Order.