By the folks at Betters Weinandt, Dec 1 2014 06:23PM
In Minnesota, the general rule is if you are married and there is property in either spouse's name, than that property is "Marital." Once property is designated as "marital," then that property is presumed to be equal property of both spouses, even if it would appear to belong to only one spouse, such as when a car is titled in the name of only one spouse. From there, the general rule in Minnesota indicates that the marital property will be distributed "equitably" between the spouses, which often (but not necessarily) results in a "50/50" split of the marital property.
Non Marital Property:
Although the general rule in Minnesota is that all property owned by either spouse in a marriage is "marital," there are exceptions. The most common exceptions are: 1) when property was owned before the marriage; 2) when the property was "gifted" specifically to one spouse (even during the marriage); and 3) when property was inherited by just one spouse (even during the marriage). Once property is determined to be "non marital," it is generally awarded solely to the spouse claiming the property to be non marital. In order to successfully claim that property is "non marital," the spouse making such claim has the burden to "prove" the non marital nature of the property. In other words, property is "presumed" marital unless one party can actually prove otherwise. For this reason, it is important that you maintain documentation of property owned before the marriage, or received during the marriage by gift or by inheritance. Without the necessary documentation, a legitimate claim of property being "non marital" may be lost for the inability to prove such property is indeed non marital.
Protecting Non-Marital Property:
One method to reduce property arguments in any future divorce is by entering a contract before getting married that is referred to as a "antenuptial agreement" (often informally referred to as a "pre-nup"). Antenuptial agreements are an extremely important tool to help protect property that is non marital from later being subject to a claim that the property should be considered "marital" when the spouses go through a divorce. These agreements are governed by statute and must be carefully drafted in order to be actually enforceable. Among other things, the agreement: 1) must be in writing; 2) must be based upon a full disclosure of each party's financial circumstances; and 3) must only be entered into after each party has had the opportunity to consult with legal counsel of their own choosing (the same attorney cannot advise both parties). These agreements can be complicated and anyone desiring to learn more about an Antenuptial Agreement must do so far in advance of a "wedding day."
Obtaining Retirement Funds Awarded in a Divorce:
Once divorced, it is quite common for one party to be awarded a portion of the other party's retirement funds. This is often a very technical process that may require a separate court order referred to as a Domestic Relations Order. It is not uncommon for family law attorneys to include in a retainer agreement that all drafting and handling of any needed Domestic Relations Order must be done through a separate third party. Whatever the case may be, it is important to note that your right to get funds from the other party's retirement account may not be complete until you have not only secured a Domestic Relations Order, but also had that Domestic Relations Order properly served upon the plan administrator for the applicable retirement account. There are legendary examples of one party being awarded large sums from the other party's retirement, only to lose out on those funds due to a failure to properly and timely obtain and serve a Domestic Relations Order.