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Property in Divorce

Property in Divorce

One of the primary issues in a divorce is how to split up community property assets. Community property is everything that a husband and wife own together. California, for example, is a community property state. This means both the husband and wife equally own all money earned by either one of them from the beginning of the marriage until the date of separation. In addition, all property acquired during the marriage with “community” money is owned equally by both the wife and husband, regardless of who purchased it. Utah does not have community property – rather it has marital property, which is sort of like community property. It is different though.

Like community assets, all debts contracted from the beginning of the marriage until the date of separation are community debts. Therefore, each spouse is equally liable for debts. In most cases, this includes unpaid balances on credit cards, home mortgages and car loan balances. It is important to close out all credit cards, bank accounts, and “joint” accounts as soon as possible after a divorce has been decided. It is not enough to remove names from the account.

Separate Property

Separate property, on the other hand, is everything a husband and wife own separately. Separate property does not need to be divided between the spouses. In most cases, separate property includes:

1. Anything owned prior to marriage
2. Anything inherited or received as a gift during the marriage
3. Anything either spouse earned after the date of separation

Separate property can also include anything that one spouse gives up to the other spouse in writing. In certain cases, separate property can become mixed with community property. When this occurs, it is important be able to trace the payments and show where the separate and community money came from. For example, a husband may have contributed the down payment for a house, got married, and then paid off the mortgage with community property. In this case, the husband would be reimbursed for the down payment if he could prove his separate funds were used to pay it. Similar to separate property, separate debts belong to one spouse. All debts incurred before marriage are separate debts. For example, educational loans or job training loans incurred before marriage would be separate debts.

Date of Separation Can Be Important – Sometimes

In some states, the date of “separation” is the date when both husband and wife decide to terminate the marriage. In others, it’s considered the date when one of the spouses moves out of the marital home. This is a very important date because it marks the end of when property is characterized as community property. Unfortunately, the date of separation is subjective and often open to debate. The courts will look for physical evidence of a final breakdown, such as moving out of the house.

Uncontested vs. Contested Divorces

At the heart of every divorce are these issues – Division of community and/or marital property; the dividing up of any debt; child custody if you have any; and then the payment of child and/or spousal support (alimony).

While no divorce is truly “uncontested” in the sense that there are no disagreements, these disputes do not always have to be resolved in court. That’s what we mean by an uncontested divorce – one where the spouses can reach a decision as to the terms of the divorce without going to trial. Uncontested divorces move more quickly through the courts and are less expensive than contested divorces.

Every couple seeking a divorce should first attempt to work out mutual terms for the separation without going to court. If the spouses cannot resolve disputes on their own, many people utilize arbitration and mediation, with or without attorney representation. This saves time and money by bypassing the lengthy litigation and trial process. An uncontested divorce typically reduces hostility, allowing both parties to resume their lives more quickly.

Complex issues, high financial stakes and technical legal procedures are the marks of contested divorces. While an uncontested divorce can often be performed without an attorney, litigation often makes experienced counsel necessary for a contested divorce. If one spouse is represented by an attorney or there are difficult financial issues, seeking an attorney may be wise.

Free Consultation with Divorce Lawyer in Utah

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.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506