Does Separate Property Become Marital Property When Titled as Joint Tenants? It Depends...

December 28, 2018

This is an appeal from a district court’s division of property and award of alimony in the aftermath of a contentious divorce. Wife contends that the court abused its discretion it credited Husband’s unrebutted testimony about his intent to convey real property to himself and Wife as joint tenants. The court found that although the home was conveyed to both of them as joint tenants, that the property was still Husband's premarital property in the divorce. Wife appealed. Court of Appeals confirmed.

Hartvigsen v. Hartvigsen, 2018 UT App 238 (Filed December 28, 2018)

Wife argued that because Husband transferred a home that he purchased before marriage to the couple as joint tenants, the court erred in determining that the home should be considered Husband’s separate property. While a “transfer of otherwise separate property to a joint tenancy with the grantor’s spouse is generally presumed to be a gift,” Bradford v. Bradford, 1999 UT App 373, ¶ 22, 993 P.2d 887, it “is not conclusive [evidence] that a gift has been made.” Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980). Generally, the gift must be “coupled with an evident intent to do so to effectively change[] the nature of that property to marital property.” Bradford, 1999 UT App 373, ¶ 22. And “[t]he trial judge has wide discretion in the division of marital property (a matter of equity) and [the court’s] findings will not be disturbed unless the record shows there has been an abuse of discretion.” Jesperson, 610 P.2d at 328.  The two cases cited above are illustrative of the central role intent plays in dividing marital property. In Jesperson, the district court found that despite the fact that the parties’ property was held in joint tenancy, “there was no intention by Plaintiff to create a one-half property interest in Defendant, nor any expectation by Defendant that he had received a one-half property interest.” Id. The Utah Supreme Court upheld the district court’s finding in light of the court’s “wide discretion in the division of marital property.” Id. In contrast, in Bradford, this court held that real property that a husband had conveyed to himself and his wife as joint tenants was marital property because the husband himself testified that he “intended at that time to give a one-half interest in the home to his wife” and nothing in the record indicated otherwise. See Bradford, 1999 UT App 373, ¶ 24 ¶29 In this case, Husband owned the property in question prior to the marriage but then conveyed it to himself and Wife as joint tenants. At the divorce trial, Husband was asked why the house had been retitled jointly:

Q. Okay. You heard [Wife] testify that the Woodland Hills house was titled jointly. How did that occur?

A. Ahhh, I believe it was several months after we were married she demanded that I put her name on the deed for the Woodland Hills house. She claimed that if I wouldn’t do that she was going to leave me and leave the marriage.

Q. So you acquiesced in that?

A. I did.

Q. Did you intend for your premarital contribution to be a gift to her?

A. No, I didn’t.

Q. Do you consider your premarital contribution to be a gift to [your Wife]?

A. No, I don’t.

Q. Do you consider it a gift to the marriage?

A. No.

¶30 The court explained in its ruling on Wife’s motion for new trial that “there was no evidence of intent by [Husband] to Hartvigsen v. Hartvigsen 20160069-CA 14 2018 UT App 238 change the nature of his separate property contributions to marital property” and that the court had therefore exercised its equitable discretion to award Richard his premarital property. In light of Husband’s testimony that he added Wife’s name to the deed for the property only because Wife threatened to leave him if he did not and the lack of any additional evidence, apart from the transfer itself, indicating that Husband intended to make a gift of the property, we conclude that the district court did not exceed its discretion in determining that Husband’s property retained its premarital character.

Hartvigsen v. Hartvigsen, 2018 UT App 238 (Filed December 28, 2018)

Click HERE to read entire case.

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