An Equitable Division of Property
In Utah divorce cases the trial court is tasked with dividing all marital property in an equitable manner. An equitable division means a fair division. This means that the court will consider each of the parties’ contributions to the marriage and their circumstances at the time of the divorce. Newmeyer v. Newmeyer, 745 P.2d 1276, 1278 (Utah 1987). A court can only make an equitable division of marital property if it first identifies which property falls under that category.
What is Marital Property?
In 1988 the Utah Supreme Court in Gardner v. Gardner, 748 P.2d 1076 defined “marital property” as any property acquired during the marriage that wasn’t gifted or inherited by a spouse and includes “all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived.” So basically, if you acquired it during marriage, it is subject to division upon divorce.
What is Separate Property?
Separate property includes property received by one spouse by gift or inheritance, property owned before marriage, and the increase in value of any of the aforementioned types of property.
Can Separate Property Become Marital Property?
The simple answer is yes. This happens through the commingling of separate property with marital property. To give an example of this let’s say that husband comes into the marriage with $250,000 in his bank account which he inherited from his late uncle. For the first 2 years of the couple’s marriage they live in an apartment. When year 3 rolls around wife is expecting their first child and they decide it’s time to buy a house. Husband and wife’s relationship is a happy one and husband decides that he wants to buy a starter home in cash. He does so and names him and his wife as “joint tenants with full rights of survivorship and not as tenants in common” and he manifests an intent to transfer his own separate property into the newly created marital property, then the court will find that his separate property no longer exists.
How to Protect Your Separate Property.
If you want to protect your separate property from the potential of becoming converted into marital property here are a few pointers:
- If you have cash which is your separate property, keep it in a separate bank account with your name only on the account;
- If you have a home before your marriage and it is paid off, keep it in your name only. If you have some equity in the home, take measures to distinguish the fact that the equity at the time of marriage belongs only to you. You can do this through a written acknowledgement signed by both you and your spouse.
- For personal property which is your own separate property, it should be sufficient to no deed it over to your spouse.
- Bank and other financial accounts should be kept in your name only.
In contested divorce cases involving significant amounts of marital and separate property, you should have experienced trial counsel like those at Salcido Law Firm. Call us anytime for a free consultation.
