One of the most common questions that comes up in any divorce is “Who gets to keep the house?” While many couples may have this question, there is no one answer to it.
Separate and marital property
In this conversation, the first thing to remember is that Utah law requires divorcing couples to divide their marital property “equitably” or fairly. Before they can do this, they must divide any separate property from the marital property.
Generally speaking, separate property includes property the individuals owned before the marriage. Marital property generally includes anything the couple acquired during the marriage. However, things can become much more complicated than that.
One such complication is that marital and separate property includes not only assets, but also debts. Many divorcing homeowners are still paying off their mortgage, and so their homes may be considered as both asset and debt.
Sorting it out
Now, imagine a case where James bought a $100,000.00 home in his own name, paying $15,000.00 down. James lived by himself in the home for two years before marriage. During the marriage, Janet moved in, and the couple lived there together for another 10 years, paying the mortgage together and working on various improvements to the home before deciding to divorce. By the time of the divorce, the house was now worth $200,000.00.
Although James is the only one with his name on the deed, the home may be considered at least partly marital property. After all, Janet did help pay the mortgage for 10 years. She also contributed to the improvements that helped raise the value of the home.
If James and Janet’s divorce is like most divorces, the parties will negotiate a settlement on their own that divides the home’s value in a way that meets Utah guidelines on fairness. Both James and Janet should seek out independent counsel to advise them on the best ways to divide the value to make sure they receive a fair settlement.
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