Division of Property in a Utah Divorce
Utah domestic courts are courts of equity. This means they have a the ability and discretion to make things “fair”. Division of property in a Utah divorce is fact sensitive and because of this typically no two property orders are the same. Utah recognizes two “types” of property in a divorce proceeding: 1) Separate property – property that belongs to one spouse, such as property he or she had before the marriage, property specifically left to that person in a will, etc; and 2) Marital Property – property that was obtained during the marriage or paid for during the marriage. Call Pearson Law Firm for a free consultation with an experienced Utah divorce attorney.
Utah Code § 30-3-5, is the statutory authority for division of property in Utah. The presumption is that all separate property should go to the party that obtained said property, and all marital property should be divided equally. However, the courts can consider numerous factors in determining how to divide property, such as:
- The amount and kind of property to be divided;
- The source of the property;
- The parties’ health;
- The parties’ standard of living;
- The parties’ respective financial conditions;
- The parties’ respective needs;
- The parties respective earning capacities;
- The duration of the marriage;
- What the parties gave up by the marriage; and
- The relationship the property division has with the amount of alimony awarded.
The court can take all or some of these factors into consideration, which can often lead to one party receiving more property than the other. If there is a large discrepancy in income or earning capacity, then the lesser-earning party may receive more assets than the higher-earning party because the higher-earning party will be able to re-accrue those assets quicker. The goal in a property division is to allocate property in such a way that the needs of both parties are served and both parties are able to pursue their separate lives with as little difficulty as possible.
Many times parties in a Utah Divorce will divide the property themselves and simply put language in their divorce decree that says something to the effect of “property will be divided as the parties agree”. This is never a good idea, the clearer the Utah divorce decree the better, if you list all major items in the decree, then there will be less opportunity down the road to argue over who gets what. In addition, the term “possession is nine-tenths of the law” applies here, whoever has possession of the property has rights to the property, and such a general and ambiguous clause would provide no protection for the non-possessing party. So even if its understood that you get the fine china, if your spouse is in possession of the china and decides not to give it to you, the clause above would provide no help and your only choice would be to go back to court and spend additional time and money.
Contact Pearson Law Firm today for a free consultation with an experienced Utah divorce attorney. Together we can ensure that your rights are protected and you get what you are entitled to. Call 801-888-0991.