Utah Divorce Code 30-3-5: Disposition of property, Maintenance and health care of parties and children, Division of debts, Court to have continuing jurisdiction, Custody and parent-time, Determination of alimony and Non-meritorious petition for modification.
(1) When a decree of divorce is rendered, the court may include in it equitable orders relating to the children, property, debts or obligations, and parties. The court shall include the following in every decree of divorce:
(a) an order assigning responsibility for the payment of reasonable and necessary medical and dental expenses of the dependent children including responsibility for health insurance out-of-pocket expenses such as co-payments, co-insurance, and deductibles;
(b) (i) if coverage is or becomes available at a reasonable cost, an order requiring the purchase and maintenance of appropriate health, hospital, and dental care insurance for the dependent children; and
(ii) a designation of which health, hospital, or dental insurance plan is primary and which health, hospital, or dental insurance plan is secondary in accordance with the provisions of Section 30-3-5.4 which will take effect if at any time a dependent child is covered by both parents’ health, hospital, or dental insurance plans;
(c) pursuant to Section 15-4-6.5:
(i) an order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage;
(ii) an order requiring the parties to notify respective creditors or obliges, regarding the court’s division of debts, obligations, or liabilities and regarding the parties’ separate, current addresses; and
(iii) provisions for the enforcement of these orders; and
(d) provisions for income withholding in accordance with Title 62A, Chapter 11, Recovery Services.
(2) The court may include, in an order determining child support, an order assigning financial responsibility for all or a portion of child care expenses incurred on behalf of the dependent children, necessitated by the employment or training of the custodial parent. If the court determines that the circumstances are appropriate and that the dependent children would be adequately cared for, it may include an order allowing the noncustodial parent to provide child care for the dependent children, necessitated by the employment or training of the custodial parent.
(3) The court has continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.
(4) Child support, custody, visitation, and other matters related to children born to the mother and father after entry of the decree of divorce may be added to the decree by modification.
(5) (a) In determining parent-time rights of parents and visitation rights of grandparents and other members of the immediate family, the court shall consider the best interest of the child.
(b) Upon a specific finding by the court of the need for peace officer enforcement, the court may include in an order establishing a parent-time or visitation schedule a provision, among other things, authorizing any peace officer to enforce a court-ordered parent-time or visitation schedule entered under this chapter.
(6) If a petition for modification of child custody or parent-time provisions of a court order is made and denied, the court shall order the petitioner to pay the reasonable attorneys’ fees expended by the prevailing party in that action, if the court determines that the petition was without merit and not asserted or defended against in good faith.
(7) If a petition alleges noncompliance with a parent-time order by a parent, or a visitation order by a grandparent or other member of the immediate family where a visitation or parent-time right has been previously granted by the court, the court may award to the prevailing party costs, including actual attorney fees and court costs incurred by the prevailing party because of the other party’s failure to provide or exercise court-ordered visitation or parent-time.
(8) (a) The court shall consider at least the following factors in determining alimony:
(i) the financial condition and needs of the recipient spouse;
(ii) the recipient’s earning capacity or ability to produce income;
(iii) the ability of the payor spouse to provide support;
(iv) the length of the marriage;
(v) whether the recipient spouse has custody of minor children requiring support;
(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and
(vii) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.
(b) The court may consider the fault of the parties in determining alimony.
(c) As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a). However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.
(d) The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.
(e) When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.
(f) In determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.
(g) (i) The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.
(ii) The court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.
(iii) In determining alimony, the income of any subsequent spouse of the payor may not be considered, except as provided in this Subsection (8).
(A)The court may consider the subsequent spouse’s financial ability to share living expenses.
(B) The court may consider the income of a subsequent spouse if the court finds that the payor’s improper conduct justifies that consideration.
(h) Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.
(9) Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and his rights are determined.
(10) Any order of the court that a party pays alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.
How are Assets Split in a Divorce
• The Home: If divorcing individuals cannot agree on who should receive the home, the court may do one of several things:
(1) order that the home remain in the possession of the parent who will have custody of the children until the children move out of the home;
(2) order that the home be given to one party and award the other party other marital assets equal to the value of his/her share of the home;
(3) allow one individual to buy out the other individual’s interest in the home; or
(4) order that the home be sold and the equity split between the two individuals.
• Other Real Property: Real property refers to land, homes, condominiums, and other structures attached to land. If the divorcing individuals cannot agree on who should receive the real property, a court may:
(1) order the property be sold and the equity divided between the two individuals;
(2) allow one individual to buy out the other individual’s interest in the real property;
(3) order that the real property be given to one party and award the other party other marital assets equal to the value of the real property.
• Retirement & Pension Plans: If only one of the divorcing individuals has a retirement or pension plan, the other individual is typically entitled to half of the amount earned during the course of the marriage (i.e. if the marriage lasted 10 years, the retirement accrued during that 10 year period will be divided, but anything accrued before the marriage will not be divided). If both individuals have retirement or pension plans, the court could either order that each of the parties retain the full value of their own plans, or order an equitable division of all retirement accounts. Whenever a retirement account is going to be divided, a special document needs to be prepared called a “Qualified Domestic Relations Order.”
• Personal Property: Personal property includes anything movable, such as cars, clothes, furniture, etc. Courts in Utah divide personal property equitable (fairly).
General Rules the Court Usually Follows
If a divorcing couples cannot come to an agreement on how to split their marital assets, a court will decide for them. There are three basic rules that will help you understand how your assets will be split in a divorce:
(1) Utah courts will divide assets equitably (fairly) between spouses;
(2) all marital property will be divided between the two spouses; and
(3) separate property will not be divided between the two spouses.
Utah Courts Distribute A Couple’s Assets Equitably
In a Utah divorce, courts will use an “equitable” approach to dividing property between spouses. This means that the courts, above all, want the property to be divided fairly. An equitable division of property between spouses doesn’t necessarily mean that each spouse will receive 50% of the couple’s assets—although that too occurs. Courts will not only consider the monetary value of the couple’s assets, but it will also consider all of the circumstances of the divorce and the circumstances of the individual spouses. For example, a court may find it is equitable for the parent who will have physical custody of the children to be awarded the couple’s home, or that the spouse who owns and operates his/her own business be awarded sole ownership of that business.
Marital property is that property that is acquired or earned during the marriage, so long as the property is not acquired by gift or inheritance. Anything that is not classified under “separate property” below will be considered marital property.
There are three main categories of property that will not be split and distributed between spouses upon divorce:
• Inherited Property: Inherited property is any property that was left for the benefit of one spouse after another person’s death.
• Gifted Property: Gifted property is any property that was given to one spouse.
• Premarital Property: Premarital property is any property that one spouse accumulated prior to the marriage and then brought into the marriage.
Utah Marital Property Laws
During marriage, couples acquire the rights to some of the property and assets, as well as debts, acquired by one or both of them. Marital property doesn’t include things that are considered “separate property” owned by either spouse, for example, property owned before marriage, inheritance, gifts, property specifically excluded by valid prenuptial agreements, and property gained after legally separating. In addition, keep in mind that you are also on the hook still for your separate debts from before marriage.
Equitable Distribution vs. Community Property
There are two ways states divide marital property: equitable distribution and community property. Utah is an equitable distribution or common law state, which is the majority marital property legal system. However, large numbers of people, especially in the Western U.S., live in community property states. This means marital property in Utah isn’t automatically assumed to be owned by both spouses and therefore should be divided equally in a divorce. In Utah, marital property is divided “equitably” or fairly, which may not be an even 50-50. Usually for longer marriages, it is about 50% to each party. For short-term marriages, the court generally puts people back to their position before the marriage, such as giving people what they had before the marriage and typically what they made during the marriage. Parties can agree on how they want to divide the property outside of court, but a judge will review it to ensure it’s fair.
Division of Assets and Debts in Utah
Fair and equitable distribution of all marital assets and debts occurs when a couple divorces in the state of Utah. Inequitable distribution states, each partner’s contribution to the assets and debts, as well as the future needs of each party, are considered before the property is divided. Whether one party has made significant financial contributions to the marriage, or one partner has recently inherited a large sum of money, the courts determine what fair distribution is when the marriage is being dissolved. Debts are also divided fairly. If one party entered the marriage with a large amount of debt, that same person is likely to be responsible for that debt if it still exists at the end of the marriage. The Utah courts have considerable leeway when dividing marital property and it’s critical to have a qualified family law attorney on your side. If you are in the midst of a divorce, it’s time to fill out our contact form to see what we can do for you. We offer a no-obligation case review, and we understand the emotional complexities that come with filing for divorce. We are here for you and we will protect your rights as you go through the difficult process of divorce.
A qualified family attorney can help you divide assets and debts during your divorce. Assets to consider include:
• Retirement funds such as 401(k)s, pensions, and IRA accounts
• Physical property such as land, houses, furniture, and art
• Life insurance policies that have been funded over the years
• Investments in stocks, bonds, and other financial portfolios
Debts are also equitably divided during a divorce. Debt can include:
• Mortgages held on properties
• Car loans
• Student loans
• Medical bills
• Credit card balances
All debt is looked at individually, and who incurred the debt will determine who is responsible for paying back the debt in the end. If your spouse entered the marriage with considerable student loans, you shouldn’t be expected to pay back those loans as part of the divorce.
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