Division of Marital Property

Generally, all property acquired during marriage is considered marital property, subject to equitable division by the court in a divorce proceeding.  This is true irrespective of which party holds the property’s title or the location of the property.  Equitable means fair, which does not necessarily mean equal, although in long-term marriages equitable may mean close to a 50-50 split.  There is no set formula, and what is fair in each situation depends upon several factors, including the length of the marriage, the parties’ occupations, age and health, and their other sources of income.

By contrast, separate property is property that was owned before marriage or was received as a gift or inheritance during the marriage.  Usually, the respective party keeps their separate property unless it has been commingled with marital property or used in such a way so as to lose its separate character.

If both parties agree on how to divide their property according to their divorce, the judge is required to review the settlement to ensure that it is fair and equitable.

Real property (home, land, buildings, etc.) that is marital property can be addressed in many different ways.  For example, the parties may agree, or the court may require, the property to be sold, with the proceeds divided fairly between the two parties.  Or, if one party intends to stay in the home, that party may buy out the other party’s interest and/or refinance the mortgage.

Division of retirement accounts requires application of unique legal principles. Generally speaking, all amounts deposited into retirement accounts during the marriage are considered marital property, and are divided according to the formula set forth in Woodward v. Woodward, 656 P.2d 431 (Utah 1982).  Although other factors may change the outcome, the formula general can be stated as follows:  multiply one-half of the value of the account by the number of years the parties were married and divide by the number of years the employee has contributed to the retirement account.

In some instances, the spouse who contributes to the retirement may be awarded the entire retirement, with the other spouse being awarded something equal in value to their “Woodward share.”  However, if the retirement account is to be split or transferred, a Qualified Domestic Relations Order (QDRO) must be signed by the judge.

The experienced family law attorneys at Farr Kaufman have knowledge in marital property and equitable distribution related cases. Schedule a consultation by contacting one of our attorneys.