Dividing Assets in a Same-Sex Divorce

Following the U.S. Supreme Court’s 2015 decision in the landmark case, Obergefell v. Hodges, same-sex marriages became legally recognized nationwide, including in the state of Utah. Consequently, in addition to having the same right to marry as opposite-sex couples, same-sex couples also have the right to divorce. While the same issues must be determined as in a heterosexual divorce, including property division, alimony, child custody, and child support, there can be unique considerations in a same-sex divorce — particularly when it comes to the equitable division of assets.

How is Property Divided in a Same-Sex Divorce?

Under Utah’s same-sex marriage laws, property is divided in divorce in the same manner as in a heterosexual divorce. Specifically, Utah follows the doctrine of equitable distribution. This means that a court would distribute assets, property, and debts between the spouses in a way that is deemed fair — not necessarily equal.

When dividing property in a Utah divorce, a judge would evaluate the following statutory factors to make a decision:

• How long the marriage lasted
• Each spouse’s earning capacity and employment status
• Tax consequences of dividing the property
• Each spouse’s age and health
• Other economic factors that impact the marriage

Only “marital property” is divided in divorce, whether the couple is of the same or opposite sex. This includes any assets that were acquired during the course of the marriage, regardless of which spouse’s name the title is in. Marital property commonly includes assets such as the family home, vehicles, bank accounts, retirement accounts, business interests, investments, artwork, and furniture. Assets that belonged to either spouse before the date of the marriage is considered “separate property” and would go back to the original owner in divorce.

What are the Challenges of Dividing Property in a Same-Sex Divorce?

Although the doctrine of equitable distribution is followed in a Utah same-sex divorce, there can be challenges concerning asset division in these cases. Same-sex couples may live together for a lengthy amount of time before marriage. If a domestic partnership agreement is not entered into that specifies how a couple’s property would be divided if the relationship did not work out, any property acquired before marriage would be treated as separate property.

Cohabitating before marriage can also mean it is more likely that separate property will be commingled with marital property, which can make dividing it in divorce more complex. Commingling refers to situations where property began as separate property but was blended with marital property. It commonly happens when separate funds are deposited into a joint account or marital funds were used to make improvements to a spouse’s separate property. In these situations, the court would attempt to trace the property to determine the portion that was mixed with marital property in order to divide it equitably.

Significantly, a same-sex couple should consider drafting a valid prenuptial agreement prior to marriage to avoid these challenges — or a postnuptial agreement during the marriage. These contracts can specify how property should be classified and how each asset would be divided in the event of divorce. Since the issue of property division is already predetermined by these documents, prenups and postnups can reduce the potential for lengthy and costly divorce litigation.

Using Mediation to Resolve Same-Sex Asset Division Issues

Same-sex couples do not need to rely on a court or Utah’s same-sex marriage laws to divide their assets in divorce — spouses are free to reach an agreement outside the courtroom regarding how they wish their property to be distributed. By using mediation or the collaborative divorce process, same-sex spouses can achieve an amicable settlement while avoiding judicial intervention. They can also part ways privately, without incurring the cost or conflict that can come with litigation.

Both forms of alternative dispute resolution allow same-sex couples to find creative solutions concerning the issue of property division in divorce. For example, spouses who had a lengthy relationship or cohabitated before marriage may want to take that time period into account when drafting a settlement. While mediation uses a neutral third party who facilitates healthy communication between the spouses, the collaborative process utilizes a team of professionals who are assembled based on the specific issues that must be resolved in the case.

Importantly, mediation and the collaborative process allow spouses to remain in control of deciding the issues in their case, including how their property will be divided. These methods of divorce provide for customized agreements that are tailored to the needs of both parties. Couples are usually much more satisfied with the outcome of their case when they determine the results for themselves, rather than let a judge decide.

Contact an Experienced Utah Divorce Attorney

If you would like to learn more about how the Utah same-sex marriage laws will impact property division in your divorce, a knowledgeable attorney can best advise you. Based in Salt Lake City, Barton Wood provides compassionate counsel and reliable representation for a wide range of divorce and family law issues, including same-sex divorce. To learn more about our legal services and how we can assist you, call 801-326-8300 or contact us to schedule a consultation.