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What’s the Difference Between Marital, Separate Property in Utah?

When two people get married, part of the process of building a life together is combining their assets and property and buying new things together to fill their marital home. This property remains in the custody of both spouses throughout the marriage. When a marriage ends in divorce, however, it can be difficult to divide property in a way that's equitable and fair to both parties.

In a divorce, courts distinguish between two types of property: marital and separate. Marital property refers to assets the couple acquired together during the course of their marriage, including real property (such as primary and vacation homes), furniture, motor vehicles and earned income.

Separate, or non-marital, property includes items each spouse brought into the marriage and kept separate throughout, such as personal items like clothing and jewelry. Additionally, this may include gifts, either from the other spouse or someone else, or an inheritance that only one of the spouses receives per the directions of a will.

How Courts Divide Property in a Divorce

When courts determine how to divide a couple's assets, the separate property of each spouse is generally not included in the property division process. These items are considered individually owned and not shared marital assets.

When dividing the rest of the property, Utah judges do not adopt a hard and fast set of rules, but instead examine each divorce on a case-by-case basis. Courts seek out an arrangement that is equitable, although this doesn't necessarily mean that the property will be divided exactly in half. State law allows judges and court officials to use their discretion in determining what is in the best interests of the divorcing couple in terms of how to divide their assets.

Some of the factors courts take into consideration when dividing assets include the length of the marriage and how the spouses acquired the property. These elements are important, because if the marriage was relatively short and one of the spouses used his or her earned income to purchase a majority of the assets, for example, the court may not deem it fair to equally divide this property between the both of them.

Courts might also consider issues like the financial situations each spouse faces following the divorce, such as medical and childcare costs. The earning capacity of each spouse might be considered relevant, as well as each individual's level of education and professional training.

The reason behind this is that courts aim always to make sure that each spouse is in the best position possible following the divorce to make a new, whole life. If one of the spouses is unemployed and facing substantial health care costs, for example, and the other spouse is relatively comfortable, the court may award a larger portion of the assets to the person who is more likely to experience financial difficulties in the future.

Dividing assets following a divorce can be a complicated process and it's often best if divorcing spouses can reach an agreement on their own without the involvement of the courts. This can be done using alternative dispute resolution methods like mediation or arbitration. To learn more about this process, contact a knowledgeable Salt Lake City divorce attorney.

Client Reviews
Mckail is an amazing young attorney that knows exactly what to do. More knowledgeable than some of her peers that have been practicing for over 20 years. Very detailed oriented in the entire process. Has no problem confronting other lawyers when it comes to fairness of her clients. Would recommend to anyone going through a divorce to call Atticus Legal Group before anyone else. Marc N.
Mckail Hamilton is professional, she has a great understanding of what the needs and wants of her clients are. She also is able to offer realistic expectations and she works hard to get things done in a timely manner. Mckail made this emotional process a lot more manageable for me. Thanks again. Amy M.