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Separating marital property is never an easy endeavor

Here in Minnesota, the property division process is governed by a legal concept known as equitable distribution. This doesn't mean that all property is automatically going to be split 50-50 in a divorce, but rather that the court will consider a variety of factors in arriving at what it deems to be a just partitioning of property.

One of the more important inquiries that will need to be made during the property division process is differentiating between marital property and nonmarital property, as only the former is subject to equitable division.

What then constitutes nonmarital property?

In general, nonmarital property includes:

  • Property owned before the married; and
  • Property acquired via a gift or inheritance made to only one spouse either before or during the marriage.

As you might imagine, property division can sometimes prove to be a highly contentious issue in divorce, as couples argue over who should get what, how much an item is actually worth and, of course, whether a particular item is properly considered marital property.

In general, Minnesota law dictates that if a spouse insists that certain assets should be classified as nonmarital, he or she must produce evidence showing this to be the case.

All this, of course, begs the question as to whether there are any steps that a person can take to help ensure that any nonmarital property remains solely their own in the event of a divorce.

According to experts, two steps that people can consider taking to accomplish this include:

  • Execute a prenuptial or postnuptial agreement, which is essentially a legally binding documents establishing each spouses' expectations regarding the classification/division of property in the event of divorce.
  • Save any documentation related to the property that may serve to show it was meant as a gift to/inheritance of one person, such as gift-tax returns, letters, cards or anything else that can provide clarity as to ownership.

As you can see, classification of property in a divorce can prove to be a difficult matter. As such, it's imperative to consider speaking with a skilled attorney with extensive experience in this and other areas of divorce law whether you are simply mulling a split or have already filed papers.

Source: The Wall Street Journal, "How to keep your inheritance in a divorce," Neil Parmar, Nov. 9, 2014 

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