How to Divide Property in a Divorce?
A question often posed of divorce attorneys in Utah is “How do we divide the property?” Most property which a husband and wife accumulate during their marriage is considered marital property and, thus, needs to be divided in a divorce decree. However, some property is considered non-marital, meaning it belongs to one spouse but not the other.
Property can be non-marital even if there wasn’t a prenuptial agreement. This could be the property which one spouse brought into the marriage. Typical examples of this are:
1) A house one party purchased prior to the marriage or
2) A retirement account started prior to the marriage.
Often these types of assets have both marital and non-marital components. Many times house payments or contributions to the 401k were not just made prior to the marriage but were also made during the marriage. Therefore, we need to establish the value of these assets at the time of the marriage and the value of the assets now. Only the marital portion needs to be divided.
The non-marital property could also be an asset which was gifted to or inherited by one spouse. As long as this inheritance was not co-mingled with marital funds (an example of co-mingling would be if a $10,000 gift from Aunt Donna to the husband was put into the joint checking account and used to pay the family bills), it will retain its non-marital status. However, whenever one party asserts that an asset is non-marital, it is the burden of that party to provide evidence that the property is, in fact, non-marital. This means tracing where the asset came from and showing everything that has happened to it since. We can help you gather the information you need to do this.
If you have questions specific to your case, please contact us for a family law consultation.