Interviewer: I know there is child custody and there is alimony. What about the property of the divorce? What happens? Is it divided equally?
Danielle Hawkes: The Utah court will divide marital property equitably – not equally, but equitably. That allows us to move chips around. One person can take the full retirement while the other person takes the house. It’s not equal but it’s equitable. Those are the sorts of chips that we can move around in mediation and we can also argue that the chips should go a certain way during trial. There are a lot of different playing chips to consider: taxes, alimony, house, cars, the RV, and obviously retirement accounts and savings accounts.
There is debt, all sorts of different kinds of debt. All of this is taxed at levels and so it all has to be taken into consideration with how it’s going to be taxed so that the trade off is fair. Alimony is taxed a different way than taking a retirement plan will be taxed. It’s very complicated once you start playing at that level and looking for an equitable distribution you definitely want an attorney at that mediation to be making sure that is equitable.
Also there are issues of whether the items are actually marital property. If they’re inherited, did they become marital property? Was the house marital property? Sarah bought the house before they even got married, so is that now marital property and how do we know? The key is to be using an attorney that knows the case well around when the item became marital property.
Interviewer: Are there any items that are considered to be marital property that are surprising to people?
Danielle Hawkes: I think titles are one of those. I think people get very confused: “My name is on this title, her name is not on that title, and mine is on the mortgage.” The divorce law supersedes those issues and the divorce will override all of that. It doesn’t matter whose name is on the title of the car, because we will be distributing it equitably. It doesn’t matter whose name on the debt; what matters is whether it was marital debt or not.
Interviewer: In general, what qualifies something as a marital asset or a marital debt?
Danielle Hawkes: That’s determined by whether it was obtained during the marriage. If it was obtained outside of the marriage, it depends on whether it was comingled with marital assets. It’s much more complicated than that regarding what the attorney needs to look at to know if something has actually been comingled. It’s a very complicated analysis.
Interviewer: Do you find that the court is in the favor of the woman or are they pretty equitable in how they act on things to distribute?
Danielle Hawkes: I think, historically, women, when it comes to custody and visitation, get custody more often. The Utah legislature in the last several years has made a strong move against discriminating against men and against fathers. Now courts have to take a clear look at both parents. Under the new laws the court needs to give both parents an equal shot at custody and visitation. To the extent that that actually plays out I think depends on the commissioner and the judge, but I think they do try very hard to move towards a more equal, fair ground that the legislature is asking for.
It’s definitely an attorney’s job to ensure that those new roles are being implemented properly.
Interviewer: I know it’s much more complicated than this, but what are some of the main factors that will influence how the assets will be divided?
Danielle Hawkes: Basically, we’re just looking for that equitable division. It’s not a bright line and every family comes to the table with different property and different assets and we’re really looking into how we can equitably divide this with the least amount of harm to the family. Every single case is different. In certain cases, both parents want the kids to live in the marital home and then it’s just a question about who will be there with them and how they will buy the other person out of the home. Every case is totally different.
Interviewer: I guess one of the factors that would make the division of property more difficult is if someone is self-employed or they own a business, right?
Danielle Hawkes: Yeah, when we get into couples that own their own business or one person owns their own business it really becomes a higher level of discussion, especially depending on what kind of business that is. If we have a medical professional who owns a doctor’s office they may have a certain amount in furniture but then the question is how much is the business really worth? Is it just the furniture or are we also evaluating the name? These issues get very complicated. These clients absolutely need an attorney and they’ll probably need a friend that they can count on as well to help figure out how much those businesses are worth and how much we should say the assets are worth to divide them.
A lot of couples in mediation can equitably divide their assets very smoothly but that’s not always the case. Sometimes the case is that someone is being extremely difficult and we really have to push towards the fair result – not in mediation but actually in court through trial and through several hearings.
Interviewer: Why do you see on the news all those stories about divorce – especially celebrity divorce – seeming so lopsided? Do you feel like they’re just picking the ones that end up like that? Because you’re saying that doesn’t tend to happen.
Danielle Hawkes: No, I think divorces can be extremely lopsided, especially when you have one side able to pay for a very expensive attorney and an attorney who is not just expensive and sitting there doing nothing but an attorney who does a really great job. Then the other side can’t afford that and they haven’t made a proper motion for attorney’s fees and so they are really out-lawyered.
In that case, both parties are able to use the marital assets to pay for their attorneys, so both parties should be equally represented because they’re using the same pool of money to pay for their attorney. It just requires the underdog party to cite for that as an initial step.