Can my Ex Get my Separate Non-Marital Property in the Divorce?

One of the most common questions people ask me is something like this: “can my ex get my non-marital property in the divorce?”

In Utah, the general answer is “no.”

This is because non-marital property (Utah divorce attorneys call it “separate property”) doesn’t belong to the marriage. Since it doesn’t belong to the marriage, the court won’t take it from one spouse and give it to the other.

Property might be non-marital for lots of different reasons. The most common reasons why property is separate are:

1. The property is a gift to one spouse from that spouse’s family.
2. The property is an inheritance.
3. The property is money for a personal injury.
4. The property belonged to one spouse before the marriage.

Exception to the Separate Property Rule

Despite the straightforward rule above, there’s an exception.

With lawyers there’s always an exception.

The exception is this: Utah divorce courts can take separate property and essentially make it marital, then divide it during divorce, but really only if there are extraordinary circumstances where it would be unfair not to do so.

We ran in to this very sort of situation during a case we took to trial a few months ago.

The other side argued we couldn’t get to the separate property to pay for child support and alimony.

We said we could because there were extraordinary circumstances, and if the judge didn’t divide the separate property, it would have been extremely unfair for our client and the kids.

We won the argument and got the property for our client and the children.

Closing Argument from Trial

I’ve looked on the internet to see if anyone else has written about separate property being divided in Utah divorces.

There’s really nothing out there, so I asked my client if we could reproduce part of our winning closing argument from trial.

Our client graciously agreed, so, here you go (I’ve changed names to protect people’s identities):

“The main problem with Opposing Party’s separate property argument is that Utah appellate courts have regularly allowed separate, premarital property to be divided during divorce.

“For example, in Mortensen v. Mortensen, 760 P.2d 304, 306–309 (1988), The Utah Supreme Court recognized that even inherited monies may be divided in divorce, and a portion given to the non-inheriting spouse. While recognizing the general rule that monies and properties brought in to the marriage (or inherited) is separate property, the Court in Mortensen also explicitly recognized “[s]uch property might also be utilized to provide housing for minor children or utilized in other extraordinary situations where equity so demands.” 760 P.2d at 308.

“To reach this conclusion, the Mortensen Court, on pages 306–08, relied on Weaver v. Weaver, 442 P.2d 928, which awarded a wife part of a family gift in lieu of alimony and attorney fees.

“Utah’s recognition that separate, premarital property can be divided at divorce is not limited to Mortensen and Weaver. In Kunzler v. Kunzler, 190 P.3d 497, 2008 UT App. 263, The Utah Supreme Court affirmed the District Court’s decision to award Mrs. Kunzler a portion of Mr. Kunzler’s real property — gifted to him by his siblings and mother. The District Court awarded the interest in the separate, non-marital properties because the husband’s limited income did not allow him to “provide sufficient alimony payment to [Mrs. Kunzler] to compensate her for twenty-three years of marriage where she managed the household and raised seven children.” ¶ 37. In paragraph 36, the Court noted the general rule that separate property is separate, and then, relying on preexisting case law on the subject, recognized an exception to the general rule: “However, separate property is not totally beyond a court’s reach in equitable property division. . . . Under Utah law, a trial court may award the separate property of one spouse to the other spouse in extraordinary circumstances where equity so demands.”

“Additionally, the Utah Court of Appeals, in Jensen v. Jensen, 203 P.3d 1020, 2009 UT App. 1, standing on the shoulders of Mortensen and its predecessors, recognized that separate gifted property was subject to equitable division in divorce.

“What has been provided is only a portion of the case law that recognizes separate property (both real and personal), whether premarital, inherited, or gifted, is subject to equitable division at divorce.”

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