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Utah Property Division
Property Distribution Laws in Utah

In Utah the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the District or Family Court divides the marital estate within the Judgment of Divorce.

Factors in Equitable Distribution

Utah is an all property state, and the appreciation of any separate property is marital.

Utah law requires an equitable division of marital property. Equitable means fair, which is not necessarily equal. When spouses agree about property division, the judge makes certain their agreement is fair and reasonable. Property division cannot be revisited after the order is made, except under limited circumstances.

Judges in Utah, rather than rely on a hard and fast set of rules for property division, enjoy discretion to consider factors unique to each marriage. Despite the court’s relative freedom to decide what is fair, courts consider the length of the marriage and how the spouses acquired the marital property. Judges look at conditions each spouse faces alone after the divorce, such as medical needs and childcare costs. Each spouse's level of education and earning potential are also relevant. Judges may divide property unequally after considering these and other factors.

When a long marriage ends, the court considers the economic impact of the divorce, particularly if one spouse's earning capacity has been greatly enhanced through the efforts of both spouses during the marriage.

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 strive to restore the spouses to the economic position they enjoyed before the marriage.

The court may decide one spouse is responsible for all joint debts and liabilities of the parties incurred during marriage.

According to the Utah Code 30-3-5, a fair distribution of property includes several factors, such duration of the marriage, the age and health of the parties, their occupations, the amounts and sources of income and related matters.

Spouses may establish the terms and conditions for the distribution of property 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 childcare expenses.

Marital Property vs. Separate Property

All of the marital property must be divided between the spouses when the marriage ends, and marital debts must be assigned.

The spouse who owns separate property keeps that property; it can’t be awarded to the other spouse.

Marital property is property acquired or earned during the marriage, including earned income. Property used for the benefit of the marriage, even if it started out as separate property, may also be marital property. Separate property belongs to one spouse before marriage and was kept separate throughout the marriage. It could also include property given only to one spouse during the marriage, like a gift made to the husband alone or an inheritance that the wife received.

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 spouse keeps his or her non-marital property, unless that property has been combined with marital property or is used in such a way that it becomes marital property. In Utah, courts consider alimony as part of the equitable division of marital property.

Property Defined

Property is either marital or separate, and it includes assets and liabilities. Property includes real property, such as the family home; personal property, such as jewelry and clothing, and intangible financial assets such as income, dividends, and benefits. Real property is land and anything permanently attached to it, such as a house or other buildings. Real estate purchased during the marriage is generally marital property even if only one spouse's name is on the deed. Generally, personal property 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 receives one of them.

Valuing and Dividing Property

First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in an equitable manner.

The Marital Home

In Utah, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds. 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.
  • One of the parties may refinance the home and “buy out” the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Pensions and Retirement Accounts

Generally, if both spouses have retirement or pension plan benefits, each will be awarded their own benefits. Utah courts have recognized that 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, such as equity from the home or cash or other property. If there is nothing of equal value to give to the other spouse, then the retirement benefits may have to be split.

Retirement and pension plans include defined benefit plans and defined contribution plans, 401(k) plans, state and federal government retirement or pension plans, private employer benefits, and some military retirement benefits. Retirement and pension plans are regulated by federal and state law and by plan policies. As a general rule, anything paid into any type of retirement or pension plan by either party from the date of the marriage to the date of the divorce is marital property.

In Utah vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In Utah the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)’s, 403(b)’s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employee’s salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In Utah, if spouses share in each other’s retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.

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