One of the primary functions of the divorce process is to divide property. This can get tricky because you may believe that certain assets belong to you alone and are, therefore, not part of the marital estate. If those assets truly are your separate property, they would not be subject to division in your divorce.

Unfortunately, it’s not as simple as saying that a particular asset is in your name alone. How you used it during the marriage could affect whether it remained your separate property. Before the division of any property takes place, the first priority involves identifying whether each asset qualifies as separate or marital property.

What’s mine is mine

Whether you or your spouse obtained the following property before, during or after the marriage, the presumption is that they are separate property:

  • You acquired it before your marriage
  • You alone received it as a gift, inheritance or bequest
  • You specifically identified it in a prenuptial or post-nuptial agreement as separate property
  • Your spouse acquired it subsequent to the valuation date

Problems can arise if you somehow commingled these assets with marital assets. For example, if you deposited a cash inheritance into your joint account, your soon-to-be former spouse could argue that it became part of the marital estate.

What’s mine is ours

Even if your name is on an asset, if you acquired it during the marriage, it may qualify as marital property. This includes accounts, real estate, vehicles and any other personal property. A business could also end up in the marital estate if started during the marriage. In some cases, a portion of the assets you brought into the marriage could count as marital property. For instance, an increase in a retirement account during the marriage could be subject to division.

Identifying marital vs. separate property

Figuring out whether an asset is part of the marital estate or separate property isn’t always easy. Several factors require consideration before making that determination. You may need assistance during this process to ensure that you retain any property that’s indeed your own.

Once you identify the assets that make up the marital estate, there will be division of it in accordance with Minnesota’s equitable distribution laws. This means that there isn’t necessarily an equal division of property. The court will attempt to fairly distribute all marital property after considering numerous factors.