It depends on what you mean by “yours,” by what you mean by “mine”.
First you need to understand that there are two kinds of property in a divorce situation: marital property and separate property. I share below some case law that explains how these terms are defined and differentiated in Utah law (Utah is where I practice divorce and family law).
Thorup v. Thorup, 554 P.3d 329, 2024 UT App 93:
A. Background Legal Principles
¶20 One of the tasks courts often face in adjudicating divorce cases is making an equitable division of the marital estate between the divorcing spouses. Our supreme court has described this property-division process as follows:
Before a district court distributes marital assets, it must (1) identify the property in dispute and determine whether it is marital or separate property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally, (3) assign values to each item of marital property so that a distribution strategy can be implemented, and (4) distribute the marital assets consistent with the distribution strategy.
Dahl v. Dahl, 2015 UT 79, ¶ 121, 459 P.3d 276 (quotation simplified). Marcus’s first challenge concerns the first step in this process: assessing whether a particular piece of property—here, the House—is marital property that belongs to the marital estate or is instead separate property that belongs to him alone.
¶21 “Marital property ordinarily includes all property acquired during [the] marriage, whenever obtained and from whatever source derived.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 31, 392 P.3d 968 (quotation simplified). Separate property, on the other hand, includes each spouse’s “premarital property”—that is, property owned by one spouse prior to the marriage—as well as “gifts[ ] and inheritances” received by a spouse during the marriage. See id.; see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (stating that courts should “generally award property acquired by one spouse by gift and inheritance during the marriage … to that spouse”).
¶22 Property determined to be part of the marital estate will be divided equitably—and presumptively equally—between the divorcing spouses. See Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968 (“The presumption is that marital property will be divided equally ….”). But separate property “will not be divided at all,” id., and will “generally” be awarded, “together with any appreciation or enhancement of its value,” to the spouse whose separate property it is, see Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968 (“Equity generally requires that each party retain the separate property he or she brought into the marriage, including any appreciation thereof.” (quotation simplified)).
¶23 In some situations, however, property that begins as one spouse’s separate property can lose its separate identity and become part of the marital estate. See Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968 (stating that, sometimes, “circumstances warrant an equitable override of the separate-property retention rule”). Our case law has identified three such situations: (1) where “separate property has been commingled” into the marital estate, Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968; (2) where “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,” Mortensen, 760 P.2d at 308; and (3) “in extraordinary situations when equity so demands,” Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968.
And there is this principle as well, articulated in the case of Lindsey v. Lindsey, 392 P.3d 968, 833 Utah Adv. Rep. 16, 2017 UT App 38:
¶ 32 The presumption is that marital property will be divided equally while separate property will not be divided at all. See Dahl v. Dahl, 2015 UT 79, ¶ 121, ––– P.3d ––––; Dunn v. Dunn, 802 P.2d 1314 at 1323. Married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce. See Mortensen v. Mortensen, 760 P.2d 304 at 308. Thus, equity generally requires that “each party retain the separate property he or she brought into the marriage, including any appreciation” thereof. Dunn, 802 P.2d at 1320, 1323; accord Dahl, 2015 UT 79, ¶ 143, ––– P.3d ––––; Mortensen, 760 P.2d at 308.
¶ 33 But separate property “is not totally beyond a court’s reach.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (brackets, citation, and internal quotation marks omitted). Before carving property out of the marital estate, a trial court must consider whether circumstances warrant an equitable override of the separate-property retention rule. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. Three circumstances have been identified under Utah law as supporting an award of separate property at the time of divorce. These exceptions are when separate property has been commingled; when the other spouse has augmented, maintained, or protected the separate property; and in extraordinary situations when equity so demands. See Mortensen, 760 P.2d at 308; Dunn, 802 P.2d at 1320.
The presumptively fair division of marital property is an equal division, but if equity otherwise dictates, an unequal division can be made in divorce.
So now to answer your question: Can your spouse legally take half of everything that is yours if you get divorced? As you can see from the discussion above, the answer is: yes, it is possible for your spouse to get half of your separate property in a divorce, but this is unlikely, as such circumstances when it is justified are rare.
Utah Family Law, LC | divorceutah.com | 801-466-9277
