As part of a divorce, you will need to go through the difficult process of dividing the property acquired before and during the marriage. The first step involves a determination of what is “marital” and what is “non-marital.”

“Marital property” means property acquired by the parties during the existence of the marital relationship. All property acquired by either spouse during the marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in a form of co-ownership such as joint tenancy or a tenancy in common.

The presumption of marital property is overcome by a showing that the property is non-marital property. “Non-marital property” involves property acquired by either spouse before, during, or after the existence of their marriage, which:

Is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

Is acquired before the marriage;

Is acquired by a spouse after the valuation date; or

Is excluded by a valid prenuptial agreement.

The spouse claiming that property is non-marital has the burden of proof to demonstrate that the property fits into a category that makes it non marital. This is done by tracing the property to its’ non- marital origins. Sometimes property can lose its’ non-marital character if it is co-mingled with marital property.

The court in Minnesota is required to make an equitable distribution of the marital property. Equitable means fair. While most people believe that equal division of the property is fair, this is not always the case. Depending upon certain factors, such as dissipation of marital assets in contemplation of divorce, a court may find that it is equitable to divide the marital property in an unequal manner.

Property is rarely divided physically. Rather, an asset is typically valued by an appraiser and each party receives a portion of the value. This may involve trading one piece of property for another, selling the property and dividing the proceeds or one spouse paying the other a cash settlement in exchange for their interest.

Issues regarding comingling, dissipation of marital assets and proving non-marital claims can be complex and involve interpretation of applicable case law. Considering that there may be tens of thousands of dollars at stake, it may well worth the money to seek the advice of an attorney experienced in marital property division and non-marital claims.

 

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