DIVISION OF PROPERTY

Chapter 6 Division of Property

Pertinent Utah Code. (See: http://le.utah.gov/xcode/code.html)

§30-3-5

Utah is an ‘equitable’ divorce state (not necessarily equal division), as opposed to a ‘community property’ state. In simple terms, the court will look at each party’s situation, contributions, lifestyle, debts, assets, children and any other considerations the court may deem appropriate, and then attempt to divide those items in a fair manner. 

For division of property, the court will classify the property as pre-marital property, personal property, and marital property. Property includes all assets such as banking and investment accounts, real property, vehicles, cash, contracts, collections, livestock, timeshares, interests, annuities, household items, furniture tools, inheritance, judgments, and the like.

Personal Property

Generally, all personal property is awarded to the person to whom it belongs. Personal property generally is all personal care items, work related property, clothes, pre-marital items brought into the marriage, personal injury awards, inheritance, gifts from family, personally purchased items, and the like.

Real Property

Real property includes homes, timeshares, rentals, and other real estate interests. Generally, the court will assess an equitable division to the parties, dividing any equity and/or debt upon the real property during the course of the marriage. (For example, if you bought a home prior to the marriage, you may be awarded the home free and clear of any interest of your spouse. However, if your home increased in value during the course of the marriage, your spouse may be awarded one-half of the increase in the value.) Sometimes the marital home is ‘upside down’ in its value and neither party desires the property. In this case the court may order the home to be sold and the parties jointly be responsible for any deficiency at the time of the sale of the home.

Retirement Accounts

Utah uses a formula called the ‘Woodward Formula’ for dividing retirement accounts. Generally, a party is entitled to a presumption of a one-half interest in any retirement account for the period of the marriage. (For example, if you had a 401k prior to marriage, your spouse would be entitled to a one-half equitable claim to any increase in that account during the course of the marriage.) After the entry of the decree of divorce the parties are responsible to prepare a Qualified Domestic Relations Order, or QDRO, and have the court enter the same as an order. The QDRO describes to the retirement plan’s administrator how the account should be divided between the parties.

Banking Accounts

Generally speaking any monies earned during the course of the marriage is considered marital property and the parties are entitled to a presumed one-half equitable interest in any funds in any held accounts either individually or jointly.

Autos

Generally, each party should be awarded the vehicle he/she has primarily used along with any debt and obligation upon the vehicle. This may not be an ‘equal’ division depending on the value of the vehicle and any amounts owed. (This is why the Petitioner may wish to request to divide debt and assets based on an overall valuation of the division of the marital estate after accounting for who should receive what property and debt. A spreadsheet should help in identifying the value of the proposed division of debts and property.)

Other Property

Other property, such as livestock, furniture, tools, and the like should be divided equally if possible. It may help to make a list of all property and values; then attempt to divide the property equally based on overall value. Some considerations may be which party regularly used the particular property, which party will maintain the property, whether the property was a gift or inheritance, etc.

Divorce Note: It is important to identify the source of any income and monies. Any monies held prior to marriage (and accounts) that you can show have always remained separate and not comingled with marital funds or assets, may be considered separate property. It is important to notify any creditors of the results of the decree of divorce.