Mine, Yours, or Ours?
Dividing Property | 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?
Marital property
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.
Non-marital 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.
Debt & Divorce
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.
Information obtained in mankatofamilylaw.com may contain knowledgable content about Minnesota Family Law that may be considered beneficial to some; however, in no way should this website or its contents be considered legal advice. Mr. Kohlmeyer is a Minnesota licensed Attorney and cannot provide legal services or guidance to those outside of Minnesota. I
That is something that I didn’t that some property will be considered non-marital and marital when dividing the land. If we were going to get a divorce then I would want to have my property divided so that it could be equal and fair. That way I could sell it and she could keep her part of the land.
I have been separated for nearly 2 years now and it was my husbands decision. I didn’t/don’t want it whatsoever. It is a no-fault divorce. Basically he decided he didn’t want to be married. With that being said, I was the one forced to move out of my home that we bought together because he has his business at the home location. He wants to do a mediator and then refinance and have my name taken off the mortgage and I will be free from the debt. As nice as it will be to have that debt not be on my shoulders I feel as though I am getting the raw end of the deal. So my question is, what are my rights in this? If I end up fighting this and wanting something for my assets will I end up with half of the debt of the property too? I just want to know what the best way for me to do this is. I would love to get something out of the home that I helped purchase and remodel which seems only fair but if I am going to end up with the debt too I guess it would be a better choice for me to just do the mediator and just get rid of the debt. At the same time, that doesn’t seem fair to me either. I appreciate any time and effort to answer my question.
Laura,
Thanks for the question.
I see this question a lot, the idea is that people will mediate and neither will hire a divorce lawyer, but the problem is that mediation isn’t a substitution for a divorce lawyer it is simply an additional tool to help settle these cases. The mediator has one job, to settle the case. They won’t (and can’t) give you any legal advice, they can’t tell you if you are getting screwed, they just try and settle the case.
I don’t know the details on your case but generally you make a column called His and Hers. Then list every asset and debt you’ve got and what the current value is. For the house it’s the equity of the house (Fair Market Value – mortage = Equity). List it all out and take a look at exactly what the values are.
For nearly everyone who either has kids or real property (real property means a house or land) it’s worth a few hundred dollars to have a divorce lawyer review the case and give you a written assessment. Good luck.
-Jason