If you are getting divorced in Utah, make sure you have a good divorce lawyer on your side. Do you know what property you get to keep and what you have to split with your spouse? You may also have questions about who will be responsible for the marital debt.
Equitable Division of Property in Utah Divorce
Utah is an equitable distribution state, meaning that the marital property will be divided between spouses in a way that is equitable, or fair. The court decides what’s fair based on a set of factors that show what each of you contributed to the marriage and what each spouse will need to move forward after divorce. The division does not have to be equal to be considered fair.
The court will be involved in the division only if you could not work together with your spouse to resolve your property disputes. Throughout the divorce process, you will have opportunities to decide with your spouse how you want to split your property between yourselves. The court will usually accept a written separation agreement on how you want to divide your property. It is only if you cannot reach a compromise with your spouse that the court will step in and divide your property for you.
Marital Property Will be Divided
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to each spouse separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage, regardless of what the title says. Separate property is property you owned before marriage. It also includes some property you receive during marriage, like a gift, an inheritance, or personal injury award to you alone. If you exchange your separate property for new property during marriage, then that new property remains yours alone. There are circumstances, however, when an increase in the value of your separate property will be characterized as marital property.
For example, if you owned a vacation home before marriage that your spouse updated and remodeled during marriage, then the increase in that house’s value is marital property because it comes from your spouse’s efforts. On the other hand, if you bought an apartment in an up-and-coming neighborhood before marriage and it improves in value during the marriage simply because the rest of the homes in the area do the same, then that increase in value remains your separate property.
At divorce, the court divides only the marital property. It can’t award any property that was yours alone before or during marriage to your spouse. It can, however, consider all your financial resources – both your share of the marital property and your separate property – when deciding how much spousal maintenance (alimony) to award, if any.
Factors Considered in Dividing Marital Property
The types of property commonly divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, benefits, and debts. The court treats debts the same as any other real, personal, or intangible property. Before dividing an asset or debt, the court will have to characterize it as either marital or separate and then assign ownership or responsibility for it based on a set of factors designed to give an equitable result.
These factors include the length of the marriage; each spouse’s age, health, income, potential earnings or future financial circumstances; and property. The court also looks at how each spouse contributed to the acquisition of marital property and, for these purposes, the court treats a spouse’s efforts as a homemaker the same as monetary contributions. For the family home, if you have custody of your children, then you have a better chance of keeping that property, or at least the right to live there while you raise the children.
In addition to any other factor that might be relevant to the particular circumstances of your marriage, the court specifically considers what the spouses may have lost at divorce, such as an interest in an inheritance, pension rights, or health insurance. It also evaluates future losses the spouses face in terms of taxes.
Some assets aren’t easy to divide between two people. Something like cash, which is very liquid, can easily be split between the spouses. But an interest in a business isn’t as easy to divide. The court has the option to order a distributive award – a payment to balance out an uneven distribution of property – if it is impractical to divide a substantial asset.
Although fault in causing the marriage to fail is not part of the calculation, the court can award less of the marital property to you if you wasted marital assets. You can’t spend marital funds flying your lover to Paris, for example, without having to pay for it later. Likewise, you can’t sell, transfer, or otherwise encumber property in anticipation of your divorce. If you do, the court can penalize you for it during the division.
Spousal Maintenance Determination in Utah Divorce
Spousal maintenance is a payment from one spouse to the other to help sustain the recipient spouse after divorce. Similar to the division of property, the court’s order for spousal maintenance must be equitable. Payments can be periodic (monthly, for example) or in a lump sum, and for a set or indefinite period of time. A spouse can request temporary maintenance payments during the divorce process, the amount of which will be based on specific income guidelines.
When the court orders the divorce and the property has been divided, the court can also make a permanent maintenance award. In Utah, an award for spousal maintenance is based on many of the same factors as the division of property. Some other factors include the spouses’ level of education and earning capacity, the marital standard of living, and the needs of any children. The court also considers domestic violence during the marriage, which may have kept the battered spouse from seeking or improving employment. The court is also free to look at any factor relevant to the award of maintenance, such as a spouse’s ability to pay.
Divorce in Utah is sometimes also referred to as a Dissolution of Marriage and is conducted as a civil action, with one party, the Petitioner, filing a Petition for divorce, and the other party being named as a Respondent. To file for divorce in Utah, either spouse must be a bona fide resident of the state and must have lived in the county of filing for the three months immediately preceding commencement of the action. The Petition may be filed in the district court of the county where either spouse resides. If the Petitioner is a member of the armed forces of the U.S. who are not legal residents of this state, he/she may file for divorce if he has been stationed in the state for the three months immediately preceding the commencement of the action. No hearing for decree of divorce may generally be held until 90 days have elapsed from the filing of the complaint, provided the court may make interim orders that are just and equitable. The 90-day period shall not apply, however, in any case where both parties have completed the mandatory education course for divorcing parents. Although there are no statutory provisions for the restoration of a spouse’s name when divorcing, either spouse may request that his/her former name be restored on the Petition or the judge will honor the request.
Legal Grounds for Divorce
The court may decree dissolution of marriage for any of the following grounds:
• Impotency of the Respondent at the time of the marriage;
• Adultery committed by the Respondent after entering into the marriage;
• Willful desertion of the Petitioner by the Respondent for more than one year;
• Willful neglect of the Respondent to provide for the Petitioner the common necessities of life;
• Habitual drunkenness of the Respondent;
• Conviction of the Respondent for a felony;
• Cruel treatment of the Petitioner by the Respondent to the extent of causing bodily injury or great mental distress to the Petitioner;
• Irreconcilable differences of the marriage;
• Incurable insanity; or
• The spouses have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
Should I Get An Annulment Instead Of A Divorce?
Maybe. The following are prohibited and void marriages and they may be annulled for these causes:
• Marriages between parents and children;
• Marriages between ancestors and descendants of every degree;
• Marriages between brothers and sisters (half or whole);
• Marriages between uncles and nieces or aunts and nephews;
• Marriages between first cousins (unless both parties are 65 years of age or older, or if both parties are 55 years of age or older, upon a finding by the court that either party is unable to reproduce);
• Marriages between any persons related to each other within and not including fifth degree of consanguinity;
• When there is a husband or wife living, from whom the person marrying has not been divorced;
• Either party is at least 16, but under 18 years of age and has not obtained parental consent;
• Either party is under 16 years of age at the time the parties attempt to enter into the marriage, unless the party is 15 years of age and has obtained judicial consent;
• Marriage between persons of the same sex; and
• Re-marriage to a different spouse before the divorce decree becomes absolute, or in the case of an appeal, before the affirmance of the decree.
When there is doubt regarding the validity of a marriage, either party may demand its avoidance or affirmance in a court where either party is domiciled. However, when one of the parties was under the age of consent at the time of the marriage, the other party of proper age may not have cause against the party under age. The court shall either declare the marriage valid or annulled. A marriage may also be annulled for any of the annulment grounds existing at common law.
Property Division In A Utah Divorce
In all dissolution and separate maintenance actions, the court and judge have jurisdiction over the distribution of property. Utah is an equitable distribution state. Therefore, marital property shall be distributed fairly and equitably. The court shall include the following in every decree of divorce:
• An order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage;
• 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;
• Provisions for the enforcement of these orders; and
• Provisions for income withholding.
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. 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.
How Much Will I Have To Pay In Alimony And Support Payments?
In all dissolution and separate maintenance actions, the court and judge have jurisdiction over the payment of alimony.
When determining alimony, the court shall consider, at a minimum, the following factors:
• The financial condition and needs of the requesting spouse;
• The requesting spouse’s earning capacity or ability to produce income;
• The ability of the paying spouse to provide support;
• The length of the marriage
• Whether the requesting spouse has custody of minor children requiring support;
• Whether the requesting spouse worked in a business owned or operated by the paying spouse; and
• Whether the requesting spouse directly contributed to any increase in the paying spouse’s skill by paying for education received by the paying spouse or allowing the paying spouse to attend school during the marriage.
The court may consider the fault of the parties when making its determination regarding alimony. 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 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 awarding alimony. 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. 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. Unless otherwise stated in the divorce decree, any order for payment of alimony to a former spouse automatically ends upon the remarriage or death of that former spouse, unless the remarriage is annulled and found to be void. In that case, alimony shall resume, provided that the paying spouse was made a party to the action of annulment and his/her rights have been determined. Any order for payment of alimony to a former spouse terminates upon establishment by the paying party that the former spouse is cohabitating with another person.
Child Custody and Support
In all dissolution and separate maintenance actions, the court and judge have jurisdiction over the custody and maintenance of minor children. The court shall consider joint custody in every case, but may award any form of custody which is determined to be in the best interest of the child. If the court finds that one parent does not desire custody of the child, it shall take that evidence into consideration in determining whether to award custody to the other parent. In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors:
• Whether the physical, psychological and emotional needs and development of the child will benefit from joint legal or physical custody;
• The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
• Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection and contact between the child and the other parent;
• Whether both parents participated in raising the child before the divorce;
• The geographical proximity of the homes of the parents;
• The preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
• The maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
• The past and present ability of the parents to cooperate with each other and make decisions jointly;
• Any history of, or potential for, child abuse, spouse abuse, or kidnapping; and any other factors the court finds relevant.
When determining any form of custody, in addition to the aforementioned criteria, the court shall consider the best interests of the child, the following factors, and any others the court finds relevant:
• The past conduct and demonstrated moral standards of each of the parties;
• Which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the non-custodial parent; and
• The extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child.
The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor.
Legal Separation and Separate Maintenance
A Petitioner may file an action for a temporary separation order without filing a Petition for Divorce, by filing a Petition for Temporary Separation and a Motion for Temporary Orders if the spouses are lawfully married and both have been residents of the state for at least 90 days prior to the date of filing. The temporary orders are valid for one year from the date of the hearing, or until either a Petition for Divorce is filed and consolidated with the temporary separation Petition, or the case is dismissed.
In a legal separation, the parties live separately, but remain spouses legally married to one another. The couple’s rights and duties to one another are set forth in a Decree of Legal Separation, which covers such matters as custody and child support, spousal support, division of property and payment of debts. In Utah, this is referred to as separate maintenance.
The grounds for legal separation are as follows:
• A party who has sufficient ability to provide support, neglects or refuses to properly provide for and suitably maintain his/her spouse;
• A party deserts his/her spouse without good and sufficient cause;
• A party who has property in the state and his/her spouse is a resident of the state, deserts or neglects or refuses to provide support; or
• A party, without fault, lives separate and apart from his/her spouse.
If a married resident of Utah files a Complaint for Separate Maintenance, the district court may allot, assign, set apart and decree as alimony the use of the real and personal estate or earnings of a deserting spouse as the court may determine appropriate. Practice and proceeding for actions for separate maintenance shall be the same as near as may be as in actions for divorce; but the action may be brought in any county where the wife or husband may be found.
In all actions for separate maintenance, the court may order the following by order or decree:
• Provide for the care, custody, and maintenance of the minor children of the parties and determine with which of the parties the children or any of them shall remain;
• Provide for support of either spouse and the support of the minor children living with that spouse;
• Provide how and when support payments shall be made, and provide that either spouse have a lien upon the property of the other to secure payment of the support or maintenance obligations;
• Award to either spouse the possession of any real or personal property of the other spouse, or acquired by the spouses during marriage;
• Specify which party is responsible for the payment of joint debts, obligations, or liabilities contracted or incurred by the parties during the marriage;
• Require the parties to notify respective creditors or obliges regarding the court’s division of debts, obligations, and liabilities and regarding the parties’ separate, current addresses; and
• Provide for the enforcement of these orders.
Equitable Distribution and Marital Property
There are two ways states divide marital property: equitable distribution and fifty-fifty division of the property. Utah is an equitable distribution or marital property 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 – like California and Washington – but Utah is different. 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 but sometimes it is. 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.
Free Consultation with a Divorce Lawyer
If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506