Dividing Marital Property
Tuft, Lach, Jerabek & O’Connell, PLLC has experience in representing clients in simple and complex property divisions. Under Minnesota law, as part of the divorce process, the court must make a just and equitable division of marital property. All property acquired after the date of marriage and before the valuation date is presumed to be marital regardless of title. The spouse wishing to establish that property is nonmarital has the burden of proving the asset is nonmarital. Our attorneys can help you determine what would be an equitable division of marital property in your situation.
As part of the equitable division, if a spouse, in contemplation of commencing a marital dissolution proceeding or during the pendency of a marital dissolution proceeding, transfers, encumbers, conceals or disposes of marital property without the consent of the other spouse, the court is to compensate the other spouse by placing both parties in the same position that they would have been in had the transfer, encumbrance, concealment or disposal not occurred.
If a spouse can prove that part of the parties’ estate is nonmarital property, that property will normally not be subject to division as part of the marital estate. Nonmarital property is real or personal property acquired before, during or after the 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 in exchange for or is the increase in value of property which is described in clauses (1), (2), (4,) and (5);
- is acquired by a spouse after the valuation date; or
- is excluded by a valid antenuptial agreement.
In some cases, assets may have both marital and nonmarital components. For example, it is not uncommon for 401(k) accounts or even the marital homestead to have a nonmarital component. To determine the value of nonmarital interests the court may distinguish between active and passive appreciation. In the case of a homestead, the courts apply a formula, which traces a spouse’s nonmarital interest in a homestead, often referred to as the “Schmitz” formula. Depending upon the type of asset and the particular circumstances of each case, nonmarital claims may be complex to establish. The family law attorneys at Tuft, Lach, Jerabek, & O’Connell, PLLC can help you identify the value of nonmarital property and can help you establish and defend your entitlement to your nonmarital property. Sometimes due to the complexity of a nonmarital claim, there may be the need to hire an expert to assist in determining the nonmarital component of an asset.
In some cases, if the circumstances warrant, the court may award a portion of a spouse’s nonmarital property to the other spouse if necessary to avoid an unfair hardship on the other spouse. The court is allowed significant discretion in making determinations on equitable property divisions and on determining whether unfair hardship exists.
For more information contact Tuft, Lach, Jerabek & O’Connell, PLLC online or at 651-771-0050 to schedule a consultation with one of our experienced family law attorneys