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The difference between marital and nonmarital property, explained

In the world of Minnesota family law, a married couple’s stuff is divided into two piles: marital property and nonmarital property. What goes into which pile can be one of the most contentious parts of a divorce.

That is because state law holds that marital property gets divided by the spouses, while nonmarital property is owned by one spouse only. He or she generally walks away from the marriage with all the nonmarital property he ors he owned during the marriage.

Nonmarital property must have been held separate and identifiably apart from the shared property. It can include:

  • Property owned by one spouse prior to the marriage
  • Property given as a gift to one spouse only
  • Property inherited by one spouse

Property is presumed to be marital unless one of the spouses can show it is not. Marital property is considered to belong to both spouses. This is true even when only one spouse earned an outside income. The other spouse is considered to have made that work possible by providing domestic support, such as taking primary responsibility for the household and caring for the children.

If the spouses cannot agree on a settlement, the court will divide the property. Minnesota law requires family court judges to create an equitable division. Note that this is not the same as an equal, 50/50 split. In this context, “equitable” means fair. Depending on the circumstances, this could mean that one spouse gets more of the property -- bank accounts, retirement accounts, real estate and so on -- than the other.

The best way for a divorcing person to get their fair share of the marital property is to have a knowledgeable attorney on their side.

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