Going through a divorce is a difficult, time-consuming, emotionally exhausting process, and perhaps one of the most difficult aspects to deal with regarding a divorce is the division of assets. Read below to learn all about how courts in Utah deal with this aspect of a divorce and what you need to know to successfully navigate through the division of property process:
Understanding marital and separate property:
One of the first elements that a judge considers when ruling over a divorce is what are the assets that are considered marital and what are the assets that are considered separate property.
What is marital property?
Marital property is any asset which was acquired during the marriage. This could include the increase of the value of pre-marital assets and can also include debts that are incurred during the course of a marriage. A court tends to categorize marital assets as only those acquired after the marriage date, even if the couple lived together before that time.
What is separate property?
Separate property or individual property is often classified by courts as any assets obtained before or after the marriage. This can include assets held before the marriage, inheritances, family heirlooms, student loans and any debts that were incurred before the marriage.
An easy way to visualize the classification of marital versus pre-marital assets is imagining a marital pie. Within the pie are all the assets and possessions along with any debts that were acquired over the course of a marriage. Outside the marriage pie is all the possessions and debts that were brought into the marriage or acquired after a separation, meaning they were accrued before the wedding date or after the official separation.
Equitable division of assets:
Once the court has determined what property, possessions, and debts are considered marital and what assets are considered separate, the next step is defining the value of each possession or property that is defined as marital. When this is completed, each item will be assigned a monetary value, then the process of equitable division takes place. The court does its best to disperse these assets and debts in a fair manner, although the end result is not always an even distribution of the assets themselves.
Below is a list of the some of the items that are considered during the process or equitable division:
Marital property is defined as any home or piece of real estate that is purchased during the marriage. It also includes any income derived from the properties and takes into account any debts against the properties.
Retirement and pension accounts:
In general, the retirement accounts and pensions that each spouse has will stay with that spouse as Utah courts feel it’s best for the spouse who has contributed to the accounts to benefit from them. However, the court will often award something else to the other spouse, such as cash or other property, to make the division even. However, in few cases, the retirement benefits are simply split evenly.
The marital home:
In Utah and around the country, the marital home is usually the most difficult asset to divide among spouses. This is due in large part to the fact that the marital home was the living space shared by the two parties going through the divorce process. Of course, acquiring an accurate and current market value of the home is a must to make an accurate assessment of the value of the home, which requires paying a real estate professional to prepare a market analysis on the property. The mortgage, taxes and any other loans against the home are also taken into consideration. After going through the process of valuing the home, spouses often settle on one of three options, which are listed below:
- The spouses sell the home, then divide the proceeds equally.
- One party buys the other out and remains living in the home.
- One spouse, most often the custodial parent, is granted permission to remain in the home for a set period of time. For example, the ruling could say that the mom could stay in the house with the kids until the youngest child graduates from high school. After that point in time, one spouse will buy out the other or they will sell the home and divide the proceeds.
Mediators and attorneys are invaluable during the process of asset division. They can find creative ways to distribute assets and debts and often make the process a bit easier on the couple involved. After all, the division of every aspect of someone’s life can be quite overwhelming.
Other factors that are considered when dividing assets besides the monetary value of the assets themselves:
- The length of the marriage.
- The occupations of the spouses.
- The age and health of each spouse.
- The earning capacity of each party.
- The faithfulness of each spouse.
All about alimony:
Alimony is another major factor to consider in the process of a divorce, and with the exception of custody battles, it can also be one of the most contested areas. Alimony, by definition, is the court-ordered monetary provision for either a husband or a wife by the other spouse after a separation or divorce.
Factors that are considered when setting alimony payment amounts:
There are many factors courts look at when determining the amount of alimony payments and how long the payments will need to be made, including the factors listed below:
- The financial situation and overall requirements of the spouse who is receiving payment.
- The ability of each spouse to earn a living and their potential for income.
- The ability of the paying spouse to provide alimony to the receiving spouse.
- Whether or not the spouse receiving support will have minor children in their custody during the duration of alimony payments.
- Whether or not the recipient spouse works in a business owned or operated by the spouse who is paying the alimony
- Whether or not the spouse who is seeking alimony contributed to the earning capacity of the paying spouse. For example, did the spouse seeking alimony work to pay their spouse’s way through college, which in turn led to them earning a higher income?
- The couple’s standard of living at the time of separation
There is no set formula for an amount that is appropriate for alimony in Utah courts. In most cases, the spouses’ incomes and child support obligations are considered, along with other factors, to come up with a fair payment amount. However, in some cases, the court orders alimony as a way to equalize the income of the two spouses. This method is utilized when neither spouse makes enough money on their own to be self-supporting.
The following is an example to explain income equalization:
One spouse works part-time and earns a net income of $800 a month, while the other spouse earns $2,600 a month. Neither spouse can survive on what they make alone. Therefore, the court would add the two amounts together to come up with the sum of $3,400 a month, which would then be divided equally among the two spouses for an equal division of income. In this case, each spouse would end up with $1,700 a month. To work out the payments, the court would subtract what the spouse who earns $800 brings in from the joint net income, leaving the other spouse to pay $900 in alimony each month.
Duration and termination of alimony payments:
Alimony can be ordered on a temporary basis when a couple is awaiting trial. However, Utah law stipulates that long-term alimony may not be ordered for a period longer than the length of the marriage, except in special circumstances. In addition, payments automatically are terminated if the receiving spouse remarries or either spouse dies.
What is the difference between contested and uncontested divorces?
Not every divorce is a heated battle. In fact, many couples are easy to work with, agreeable and simply want a peaceful end to their marriage. In cases where there is no disagreement among spouses regarding any division of assets or disagreements on custody issues, the divorce is referred to as uncontested. In a contested divorce, one or both parties disagree about some aspect of the divorce. It could be they do not agree with the division of assets or one of them believes that the alimony amount is unfair. When there is any disagreement at all, the case will then be placed before a judge in order to reach an agreement. This type of divorce is referred to as contested.
What type of divorce is better, contested or uncontested?
Financially speaking, an uncontested divorce is always better. In most uncontested divorces, the spouses submit their papers to a judge for a signature and never have to enter a courtroom, making it a cheaper endeavor. However, many times, the two parties seek the help of a mediator or lawyer, which is mentioned above, to come up with their marriage settlement agreement, which is explained below. Uncontested divorces also tend to be less time-consuming, less stressful and easier for everyone involved, including the children. However, in cases where one spouse does not feel they are being treated fairly, a contested divorce can be the most appropriate way to handle the situation.
In addition to being less stressful and less expensive, an uncontested divorce is also a much quicker process. For example, if a couple opts for an uncontested divorce, the process of the divorce is often completed within weeks, or in the worst cases months. However, a contested divorce, which must go before a judge and through the court system, can take up to a year to be resolved in some instances.
What is a marital settlement agreement?
A marital settlement agreement is simply a contract that is utilized in uncontested divorces to divide the debts, assets, and properties of both parties, which were acquired during the marriage. It also portrays the rights of both parties and settles any issues pertaining to spousal alimony or child custody. By entering into a marital agreement, the divorce becomes uncontested, and most courts will approve of the agreement if it is found to be fair and benefits both spouses. However, in some cases, the courts will review the financial records to determine the agreement’s fairness.
How can you make sure you get what is yours in a divorce?
An experienced divorce lawyer will understand the ins and outs of the divorce process and can advise you as you go through the process. In the case of an uncontested divorce, an attorney can ensure you that you are being treated fairly or they can advise you to go to court if they feel that is the best course of action in your particular case.
What happens if you don’t hire a lawyer?
If you don’t hire a lawyer to represent your interests, you could end up being treated unfairly or pushed into an agreement that is not quite what you had in mind. In addition, if a divorce goes to court, you could be appointed a lawyer who has little to no experience dealing with your specific situation. Therefore, it is best to find your own lawyer ahead of time and procure their advice on the best course of action regarding your divorce proceedings.
Why David Pedrazas, PLLC?
When searching for a good divorce lawyer, you want someone who has been involved in cases similar to your’s before and has come out victorious. For example, a lawyer who has extensive experience dealing with medical malpractice cases, although a good lawyer, is not ideal to advise you on your divorce proceedings. You want to hire a lawyer that understands all the elements involved in a divorce case when you are going through the oftentimes stressful process. David Pedrazas is such a lawyer. He has more than 20 years experience dealing with divorce cases, and therefore has extensive knowledge of the process, giving him the ability to help people through this difficult time in their lives.
Pedrazas is also committed to educating his clients, ensuring they make an informed choice when it comes to their divorce plans. He is a kind, caring individual who understands that divorce is a difficult process. After all, no one marries someone intending to divorce them one day. Pedrazas understands this and is patient with his clients as they go through what in many cases is the most difficult process of their lives. Therefore, when you are searching for a divorce lawyer who is knowledgeable, experienced, compassionate and will help you fight for your rights, there is none better than Pedrazas. Visit Pedrazas’ site to learn more about how he can help you through your divorce process.