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Property Division in Divorce: Equitable, Not Equal (or necessarily “Fair”)

Property division in divorces can be one of the big sticking points to actually getting a divorce done.  You’ll remember from a previous post that a friend of mine contributed that fighting over stuff is not necessarily all it’s cracked up to be.  But there are things that the court does look at in terms of dividing up property from a divorce.  For starters, the statute that mentions property disposition in Utah divorces is located at U.C.A. § 30-3-5(1).  The statute really only provides the court with the authority to make an order disposing of property in the divorce–there isn’t anything specific or hard and fast in the law to determine who gets what. The keyword to remember in the statute, however, is “Equitable,” as in, the court may make an equitable disposition of property, debts, and obligations incurred by both parties during the time of the marriage.

Some property, like money, can be split relatively easily. . .

You’ll also remember from a previous post that the equitable division is only as it relates to the parties to the divorce–NOT necessarily as it relates to the family.  For example, in that post (it was the one called “The F-Word”) I noted that my client retained physical custody of the parties’ children.  Technically, even though my client has the kids and needs more household goods than opposing party, the court would only look at a property division in terms of equity between the husband and wife.  So if the wife gets all the kids’ property in the divorce (beds, furniture, etc.), and keeps the washer and dryer since there are more of them needing laundry done than husband, husband may be given a large portion of OTHER property to make up

. . .Other things, like, oh, say, The Equitable Building, are a little trickier.

for it.  Remember, it’s not fair, it’s equitable.

There is another interesting little quirk in property divisions in a marriage: inheritances.  Is inherited property considered marital property for the sake of property division in a divorce?  Short answer–Sometimes.  Generally, the court will award the inheritance to the party who inherited it, and may or may not offset that by giving the other spouse more of the marital property.  This is something that is extremely fact specific, and is dependent on some factors that have been spelled out in case law.

In Mortensen v. Mortensen, 760 P.2d 304, 309 (UT 1988), the court said the following:  “. . .[T]rial courts making ‘equitable’ property division pursuant to section 30-3-5 should. . .generally award property acquired by one spouse by gift and inheritance during the marriage (or property acquired in exchange thereof) to that spouse, together with any appreciation or enhancement of its value, unless (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it,. . .or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse.” (emphasis added.)  The court went on to specifically state that the rest of the property that is considered marital property should be divided equitably, but not necessarily with “strict mathematical equality,” BUT, the heir spouse should not lose the value of the inheritance by the “trial court’s automatically or arbitrarily awarding the other spouse an equal amount of the remaining property which was acquired by their joint efforts to offset the gifts or inheritance.  Any significant disparity in the division of the remaining property should be based on an equitable rationale rather than on the sole fact that one spouse is awarded his or her gifts or inheritance.”  There’s more to this, but I think you get the gist.

So you can see that what is an equitable division in one case may or may not be equitable in another.  I currently have a case that involves, shall we say, the elderly.  They have been married 30 years, and she filed for divorce.  We are hung up on property division, because there is an inheritance involved, and equities are different when the parties don’t have kids or any other real significant property, but they do have ongoing healthcare needs.  My hope in this case is that I can convince the court to use its equitable powers to distribute property in such a way that my client is not left with nothing when he has significant and expensive long-term healthcare needs that will be coming right up shortly.

But who knows how it will turn out. Equity can be tricky.

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