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A lot of married couples go by the phrase, “What’s yours is mine, and what’s mine is yours.” But, what about when the marriage ends? Obviously, most divorcing couples are no longer carrying on with that mentality. However, in many marriages, not all property is considered marital property. Depending on the circumstances, your largest assets may be considered separate property that you have no interest in. If you’re going through divorce, knowing which property is separate and which property is separate can help you protect yourself and your rights.

What Is Separate Property?

For the most part, separate property is property that was obtained prior to the marriage. However, gifts and inheritance obtained during the marriage are generally considered to be separate property, assuming the property wasn’t given to, or inherited by, both parties. Your ex does not have an interest in your separate property and vice-versa. Marital property is property that you and your spouse have acquired during the marriage. When a couple is divorcing, both parties will have an interest in all marital property. Marital property can include anything that was acquired during the marriage. This means equity, retirement accounts, and cars may all be considered marital property depending on your circumstances. In most cases, this also includes property purchased or paid for with money earned during the marriage.

What Is Commingled Property?

Commingled property is separate property that has been commingled with marital property. Commingled property can be considered marital property or quasi-marital property. This is most often seen when one spouse purchases a house before the marriage. Then, during the marriage, marital assets, such as income earned during the marriage, are used to pay for the house. In this case, the house is commingled. In order to keep the house separate, you would have to maintain the house using only separate property. However, commingled property doesn’t mean that a piece of property is entirely marital and will then be split in half. Normally, marital property is divided 50/50. But when property is commingled, youor the courtwill need to determine how much of the property is marital, and then divide the marital portion. Since this can be difficult to determine, most couples have a judge decide if the property is of significant value, such as a house.

Determining the Value

Not all marital property needs to have a judge determine the value of the property. During a divorce, couples will negotiate the values of their marital property. This doesn’t mean they need to decide the value of everything they own. Most of the marital property, specifically property that doesn’t have a significant monetary value, will be divided based on what the couples negotiate. For example, you may decide to let your spouse have the sectional in exchange for the coffee table. When it comes to more significant assets, such as cars, or real estate, you can hire an expert, or an agreed upon appraiser, to appraise the property. If you cannot come to an agreement, a judge will decide the value of the property based on the evidence presented at trial. 

Retirement Accounts

Retirement accounts can also become commingled. In order to divide a commingled retirement account, you will need to gather statements to prove how much money was in the account prior to the marriage. If the money you put into your retirement account during the marriage is a marital asset, such as income you earned during the marriage, the retirement account becomes commingled. In this case, the marital portion of the retirement account is subject to equitable division. In Utah, the courts also have a formula to divide pension accounts when the actual amount cannot be calculated at the time of the divorce. This formula is called the Woodward Formula. This calculation identifies the marital portion of the account and divides the marital portionpresumably in halfat the time benefits are distributed.

Dividing the Property

In Utah, the law states that marital assets will be equitably divided. This means that there is a presumption that they should be split 50/50 unless there is some other compelling reason to deviate from that presumption. Overcoming that presumption is difficult, and in most cases the court will equally divide the marital property or the value of it. Depending on the value of the property in question, it may not be worth it to hire an appraiser, or spend money fighting over the property in court. A good attorney will help you determine whether or not it’s in your best interests to hire an appraiser or go to trial. For example, if you owned $600 worth of a $25,000 car before your marriage, it’s probably not worth it to fight over the extra $300 that may or may not be awarded to your spouse. However, if you paid $500,000 toward a $1 million home prior to the marriage, it is almost certainly worth your time to fight about it in court.

Protecting Assets

If you’re concerned about protecting your assets, or determining how property should be divided, you need an attorney who’s willing to fight for you and your rights. At CoilLaw, our attorneys are experts at ensuring our clients and their assets are protected during a divorce. Though it’s normal for people to feel as though they’ve lost everything during a divorce, an attorney can help you minimize your losses. If you’re going through a divorce, do not hesitate to contact CoilLaw for an initial consultation.


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