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.
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.
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.
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 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.
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.
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.