A prenuptial agreement, commonly referred to as a “prenup,” is an agreement made between prospective spouses before marriage. This agreement allows a couple to agree to a variety of terms that are intended to alleviate disputes that may arise in divorce or in other circumstances like death or separation. The agreement becomes effective upon marriage. It must be in writing and must be signed by both parties voluntarily and without fraud to be enforceable.

One major subject commonly covered in prenuptial agreements is the distribution of property among the spouses in case of divorce. According to Utah’s Uniform Premarital Agreement Act, “property” is defined as an interest either in real property or personal property and includes income and earnings.

Utah is considered what’s called an “equitable distribution state.” When a divorcing couple does not have a prenuptial agreement outlining how property will be allocated, the state requires that all marital property be divided equitably, or fairly, between the spouses. This “fair” distribution of property first requires that all of the couple’s property be classified as either marital property or separate property. Marital property is that which is acquired during the marriage. Separate property, on the other hand, is property that one spouse owned prior to the marriage and kept separate during the marriage and that property which one spouse inherited or obtained as a gift during the marriage. Marital property will be equitably divided among the spouses upon divorce and separate property will remain with the spouse who owned it.

After the property is classified, the marital property will then be equitably distributed between the spouses. The equitable distribution of marital property is not always divided 50/50 or equally. Instead, Utah courts take many factors into consideration when deciding how to distribute the property fairly. These factors include how long the marriage lasted, how the marital property was earned or acquired, the future costs each spouse will incur such as medical or childcare expenses, and each spouse’s ability to make an earning after the divorce. Judges in Utah are given some discretion and can take these as well as many other factors into consideration when deciding how to distribute the property equitably.

If the divorcing couple instead obtained a prenuptial agreement before marrying, then that agreement, and not the state law, will decide how the property will be allocated among the spouses. The prenuptial agreement will be enforced so long as it does not violate the state’s public policy or criminal laws. According to Utah Code 30-8-4, prenuptial agreements can contain the following content in regards to property:

  1. Lists naming and specifying what is marital and what is separate property;
  2. “The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
  3. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  4. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event”

For prospective spouses who are bringing property into a marriage, it is highly recommended that they sign a prenuptial agreement before getting married. If you have any questions or doubts as to whether or not you should consider a prenuptial agreement, talk to an attorney.

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