Paul Horton: Separate Property in a Divorce

Division of property is a hotly debated topic in many divorces. A recent Appellate Division case defined an instance when separate property is not actually separate property.

In Utah, the assets and debt of the marital estate are subject to equitable distribution during divorce. When couples cannot agree on how to distribute their property, the court strives to divide it fairly, but not necessarily equally.

Property owned by either party prior to marriage is considered separate, unless it is commingled with the marital estate during the marriage. In Foti v. Foti, Paul Foti sought reversal of an earlier ruling that allowed Gina Foti to maintain certain properties and businesses as separate for purposes of their divorce.

In Utah, the law defines property as separate if it meets the following criteria:

The property is acquired before marriage or by gift or bequest.
Property is compensation for a personal injury.
Property is exchanged for separate property, except when efforts of the other spouse enhance the value of the asset.
The property is the subject of a written agreement between the parties.

In February of this year, the court found Ms. Foti had established her real estate and management companies as separate property, given to her by her father. However, the court also found Ms. Foti took the interest on the properties as tax losses in a jointly filed federal income tax return.

In deciding the properties of Ms. Foti were commingled with the marital estate, the court noted earlier precedent that “[a] party to litigation may not take a position contrary to a position taken in an income tax return.”

Is Divorce Really That Bad?

Over the years there have been dozens of murder for hire; murder for sexual favors; and murder by fraud or scheme to defraud perpetrated by a spouse who could have simply divorced their partner.

This was easier to understand prior to the enactment of the No Fault Divorce law in October 2010. In October 2010 the Utah State Legislative passed the no fault law. As a result, fault is not necessary anymore and anyone can get a divorce without claiming fault against the other spouse.

Prior to October 2010 fault was required, a lengthy expensive process was the inevitability of a marriage going sour if one spouse was not agreeable to divorcing the other. Murder plots are never palatable in any manner, however, it is beyond comprehension that one would even consider a murder plot when a marriage can be ended simply with a divorce action brought under the no fault divorce statute.

It is our experience that over the years many clients have caused destruction to themselves and their spouse through physical and emotional abuse and even violence rather than get divorced. Divorce used to carry a “stigma” that with some generations having a 70% divorce rate. It is more the norm than a stigma. It gavels the mind why someone would go to the lengths of hiring a contract killer or arranging for their spouse to be killed. The answer to this question is best summarized by a famous Nassau County Judge (who will remain anonymous) who stated to us that there are three reasons for every divorce: (1) money; (2) money; and (3) money. This must be the root of these cases. However, even in the most newsworthy cases sometimes it is a very small amount of money or no money involved and spouses still go to great lengths to physically harm, intimidate or emotionally abuse their spouses.

Recently, a Utah prison escape succeeded because it is alleged that Joyce Mitchell assisted the escape because she allegedly wanted her husband killed by the inmates. See, (Kevin insert major news stories here). Since both her and her husband worked in the prison system there does not seem there was great disparity of income and she still loved her husband. Yet she was plotting his death.

Divorce is not a bad thing if one considers that no happy marriages end up in divorce. Divorce often reduces the amount of misery a couple will endure prior to the actual divorce being granted. Sometimes, it is only by facing the facts and having the courage to seek a no fault divorce that someone can spare themselves and their spouse wasted years; emotional and/or physical harm.

If your marriage is unsafe; unhealthy; inappropriate or unhappy, please contact us for a free consultation.

Free Consultation with a Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.