Depending on how property is designated – marital or non-marital – affects how it may be distributed in a divorce. Regardless of whose name is on the title of the home or the vehicles, property acquired during the marriage is generally marital property which must be distributed between the spouses in a divorce. Marital property is typically subject to an equitable (but not necessarily equal) division between spouses. Non-marital property usually belongs to one spouse or the other and is not considered in the equitable division of the marital estate in the divorce. Because of this distinction, it is important to be aware of how the property may be distributed and how this distinction between types of property is important.
Under Minnesota law, property acquired during the marriage by either spouse is presumed to be marital property. Even if you have separate bank accounts, separate incomes, and separate retirement accounts, the property acquired during the marriage is generally subject to an equitable division in a divorce. The property acquired during the marriage like vehicles, homes, and other personal property is also considered marital property, which must be divided between the spouses.
Non-marital property includes property owned prior to the marriage. An example of non-marital and marital property includes a home purchased by one spouse prior to the marriage. Although the property may be non-marital because it was acquired before marriage by one spouse, the equity built in that home throughout that marriage may be subject to an equitable division as marital property.
Another common type of non-marital property is an inheritance. For example, if one spouse inherits $5,000 during the marriage, that $5,000 is non-marital property which belongs to that spouse alone. The difficulty arises when spouses have commingled these assets with marital assets, making it difficult to distinguish whether the property is marital or non-marital. However, it is not impossible to track that property to show it is a non-marital asset, even after being used to purchase other property or is invested. The spouse claiming certain property is non-marital has the burden to show the property was acquired before the marriage or otherwise meets the standard to be non-marital property. Therefore, record keeping becomes important if a spouse wants to ensure certain property is non-marital if the marriage ends.
Additionally, an antenuptial contract (also known as a prenuptial agreement) may exclude certain property from consideration as marital property. This means that prior to marrying, spouses may have agreed to what interest each party will have in their non-marital property. If there is a valid antenuptial agreement, the spouse’s interests in any non-marital property will likely have been clarified and govern the division of that property.
If you have questions about divorce or marital and non-marital property in Minnesota, contact attorney Tracy Lyson at O’Keeffe O’Brien Lyson Foss today either online or by calling 701-235-8000 or 877-235-8002.