Great question (the answer will likely scare you and drive you nuts, but it’s a great question).
Divorce court is, in many respects, the wild west. No matter what jurisdiction you may find yourself in, the law on the books is not necessarily what controls the rulings of every judge. Many judges color outside the lines; some do because of an honest mistake, others do because they are ignorant of the law, and still others do because they consider themselves a law unto themselves.
So, if you married today, if your husband moved into your house, lived with you in that house for 5 years, and then you divorced, could the court award you 50% of the ownership or value of your house? Sure! Does that mean the court’s ruling complied with the law? Not necessarily, but remember, if the court makes a ruling that does not comport with the law, that ruling is still binding on you and enforceable against you unless you appeal it or move to have the defective/erroneous set aside.
Now I realize that what you really want to know is the law is on this subject, regardless of whether a mistaken, foolish, or arrogant judge might not follow the applicable law. Not all jurisdictions have the same laws governing division of property. But I can tell you what the law in Utah is as it pertains to your question because I am licensed to practice and I do practice divorce and family law in Utah.
My answer to your question, based upon Utah law and my experience with its application, is as follows:
See Thorup v. Thorup (Court of Appeals of Utah), July 5, 2024, 24 UT App 93, — P.3d —-2024 WL 331372520:
¶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.
¶24 First, with regard to commingling, one rather obvious situation in which commingling occurs is where “one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property.” See Dahl, 2015 UT 79, ¶ 143, 459 P.3d 276. But even short of an outright intended contribution, property that started out as separate property may be considered commingled if it becomes inextricably and untraceably intertwined with marital assets. See id. (“[P]remarital property may lose its separate character where the parties have inextricably commingled it with the marital estate ….”). Quite important to any commingling analysis, then, is whether the property in question has retained “its separate character.” See id. And this inquiry often turns on whether the property’s separate identity can still be traced or accounted for. See Mortensen, 760 P.2d at 307 (stating that property is commingled when it “completely loses its identity and is not traceable”); see also Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986) (upholding a district court’s determination that property was commingled because “it could not trace any assets to any source”). Indeed, in one case we phrased the relevant question as whether the property at issue “became so commingled that [it] could not be segregated” from the marital estate, and we determined that it had not, because “the marital and premarital interests were reasonably capable of being determined” and “it was still possible to trace and separately identify” the separate property. Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 20–23, 147 P.3d 464. Thus, separate property will be considered commingled when it has been mixed in with marital assets to such a degree that it is no longer reasonably possible to distinguish between the separate and marital property. On the other hand, if “the marital and premarital interests” are still “reasonably capable” of being traced and identified, then the separate property retains its separate nature and will not be considered commingled. See id.
¶25 Second, “under the contribution exception, a spouse’s separate property may be subject to equitable distribution when 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.” Lindsey, 2017 UT App 38, ¶ 35, 392 P.3d 968 (quotation simplified). “This exception may be satisfied when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value, or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property.” Id. (quotation simplified). “Under such circumstances, one spouse’s effort or investment may render the other spouse’s underlying asset, its appreciated value, or some portion thereof subject to equitable distribution.” Id.
¶26 Third, there exists a catch-all exception for situations—not covered by either of the first two exceptions—in which “extraordinary circumstances … warrant a departure from the presumptive rule.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. This exception is rarely applied; we have stated that the “bar for establishing an extraordinary situation is high, traditionally requiring that invasion of a spouse’s separate property is the only way to achieve equity.” Lindsey, 2017 UT App 38, ¶ 46, 392 P.3d 968 (quotation simplified).
(emphasis mine)
See Stonehocker v. Stonehocker (Court of Appeals of Utah), January 10, 2008, 2008 UT App 11, 176 P.3d 476:
- Property and Debt Distribution
¶ 13 . . . “In Utah, marital property is ordinarily divided equally between the divorcing spouses and separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.” Olsen v. Olsen, 2007 UT App 296, ¶ 23, 169 P.3d 765; see also Utah Code Ann. § 30–3–5(1) (2007) (“When a decree of divorce is rendered, the [trial] court may include in it equitable orders relating to the children, property, debts or obligations, and parties.”). “[T]he primary purpose of a property division, in conjunction with an alimony award, is to achieve a fair, just, and equitable result between the parties.” Riley v. Riley, 2006 UT App 214, ¶ 27, 138 P.3d 84. Furthermore, “[i]n a divorce proceeding, the trial court should make a distribution of property and income so that the parties may readjust their lives to their new circumstances as well as possible.” Gardner v. Gardner, 748 P.2d 1076, 1078 (Utah 1988). In making its determination “[a] trial court does not consider property division in isolation …. [and] shall consider all the circumstances of the parties in determining the distribution of real and personal property, including the obligations of the parties for child and spousal support.” Rosendahl v. Rosendahl, 876 P.2d 870, 874–75 (Utah Ct.App.1994) (citation and internal quotation marks omitted).
*****
¶ 15 In making a property distribution, the trial court considers and must make findings on several issues. First, the court must identify the property in dispute and determine whether each item is marital or separate property. See, e.g., Hall v. Hall, 858 P.2d 1018, 1022 (Utah Ct.App.1993) ( “[T]he trial court should ‘first properly categorize the parties’ property as part of the marital estate or as the separate property of one or the other.’ ” (quoting Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct.App.1990))); Stevens v. Stevens, 754 P.2d 952, 955 (Utah Ct.App.1988) (remanding for further findings where “trial court did not … identify the items of marital property and debt”). Next, the trial court should consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally between the parties. See Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (holding that where such exceptional circumstances exist, they must be “memorialize[d] in … detailed findings” (internal quotation marks omitted)). The trial court is then required to assign values to each item of marital property so that the distribution strategy, whether equal or weighted in favor of one party, can be implemented. See, e.g., Gardner, 748 P.2d at 1079–80 (remanding for further findings where trial court did not determine the present value of husband’s retirement account or medical business); Stevens, 754 P.2d at 955 (remanding for further findings where “trial court did not … assign values to each item of distributed property and debt or a total value to the cumulative share awarded to each party”); Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985) (explaining requirement that trial court set values for various items of property included in the distribution). Finally, the court must distribute the items of marital property in a manner consistent with that distribution strategy, with a view toward allowing each party to go forward with his or her separate life. See Gardner, 748 P.2d at 1079 (“The purpose of divorce is to end marriage and allow the parties to make as much of a clean break from each other as is reasonably possible.”).
(emphasis mine)
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