Mine, Yours, or Ours?
If a Minnesota court is dividing up your and your ex-spouse’s property in a divorce, some of that property will be considered marital and some of it will be considered non-marital. What’s the difference between these two, and what does that mean for you?
You know from the growth in contents of your shed, attic, storage rental and junk room that you and your spouse have bought plenty of things during your marriage. This is marital property. And marital property doesn’t just mean tangible things like a car, a boat, or that nice set of wine glasses; it can also be land, stocks, or pension plan benefits.
Everything you and your spouse bought or were given during your marriage will be presumed to be marital property. This means that when you get a divorce, the court will make a “just and equitable” division of this property between you two. This often, but not always, means an equal division of the property.
You might have some property that you feel should be considered yours and only yours. What about, for example, that car you bought with the money you inherited from your parents? Or what about the painting you received as a gift specifically to you, not to you and your spouse as a couple? These types of purchases or gifts, along with inheritances, may be nonmarital property, and, if so, will generally be awarded to you alone in the divorce.
Because property acquired during the marriage is presumed to be marital, if you want to argue that something is your own, nonmarital property, the burden is on you and your attorney to prove that it is. This is where the concept of “tracing” comes in. Tracing means that if, for example, you bought a car using money that you are arguing is nonmarital property, you have to trace the purchase of the car back to the nonmarital money. In order to do this, you’ll need to have kept the money as separate as possible from money that belongs to both you and your spouse. The separation doesn’t have to be completely rigid; just putting some money that you inherited into the bank account that you and your spouse used to pay bills won’t transform the inheritance into marital property. But if you have co-mingled funds like this, you’ll have to demonstrate that any money you are claiming is only yours can be readily identified. You and your attorney can work together to determine the best way to do this.
Finally, don’t forget that you might not always want your property to be nonmarital; debt can be nonmarital property too! Whether debt created by borrowing money is marital or nonmarital depends on who borrowed the funds and whether the borrowed funds were used for marital or nonmarital purposes. Only marital debt, not nonmarital debt, will be offset against the total value of the marital estate. This means that even if you have large personal debt, the court probably won’t allocate you more of your and your spouse’s marital property to compensate.
As always, I’ll answer questions feel free to post below!
Rosengren Kohlmeyer, Law Office Chtd.