What Is Considered Real Property As It Relates To A Divorce In Utah?
In a divorce, land would be considered real property, including the structures thereon. The marital home and any farmland, land, structures, etc. located there are real property.
What Is Marital Property Versus Separate Property?
Marital property is something that is capable of being divided by the court during a divorce. It would include any property acquired by one or both of the parties during a marriage, unless it was a specific gift to them from someone else, an inheritance, or one of the parties owned the property prior to the marriage. If one parties does own separate property, that separate property may lose its separate status if it is comingled with marital property to the point where it is difficult to separate which portion of the asset is marital and which portion is separate.
For example, if one party has a marital home with $50,000 of equity, gets married, and adds their new spouse to the title of the home (or even if they do not add their new spouse to the title on the home), any increase in equity to that home might be considered marital property, particularly if both parties were contributing to the increase in that equity. The court may say that the original $50,000 in equity would be the separate property of the spouse who brought it into the marriage. However, if that equity is extracted, for example, through a home equity line of credit, which is then used by the parties during the marriage, the court might find that the $50,000 was used jointly for marital purposes and therefore, lost its separate character. If a party wishes to preserve the separate character of their premarital or separate property, they should take care not to comingle the asset with marital funds, efforts, or contributions.
How Does The Court Generally Divide Real Property In A Divorce?
In Utah, the courts will begin with the assumption that each spouse should receive a roughly equal share of the marital property. That said, the court does not have to split each item down the middle. Rather, it can give one piece of property to one party and another piece of property of roughly equal value to the other, in order to equalize. Each party is presumed to be entitled to all of his or her separate property and 50% of the marital property.
In dividing real property, the court can award a piece of real property to one side outright, even if it is legally owned by the other party. It can order that the property be sold and the equity divided. It can also order one party to refinance the real property and pay to the other party a portion of the equity that has been built in that real property. Whether the court chooses to order the sale of the piece of property or the refinance depends on a variety of factors, including whether the party who is awarded ownership of the real property has the ability to make payments on any mortgage or debt thereon. If the court determines that neither party has the financial resources to make the mortgage payment, the court will likely order the property sold and any equity divided.
Does The Length Of Marriage Matters That Much When It Comes To Dividing Property In Utah?
The longer the marriage, the more marital property will have been acquired. The shorter the marriage, the less marital property there is likely to be.
Doesn’t Equitable Mean Equal? Will We Always Get A Fifty-Fifty Split In My Divorce In Utah?
Equitable means roughly equal. This means the court can award one party a greater portion of the marital property but a lower amount of alimony/spousal support or retirement, if the court believes that would be equitable. The court can use offsets in other portions of its award to offset for any discrepancy in the amount of property awarded to one party.
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