PROPERTY

Marital and Non-Marital Property. Marital property and non-marital property are the categories of property when a marriage is dissolved in Minnesota. Marital property is anything acquired during the marriage, except for non-marital property. Non–marital property is generally property acquired by one spouse and not by the other. Also, it could be property acquired by gift, inheritance, or property owned by one spouse or the other at the time the parties’ were married. There are often disputes about the value of property, so it is helpful for my clients to spend some time itemizing the values of various items of property and sharing this with me together with any problem areas for which we may have to hire a professional appraiser. Of course, we also have the option of agreeing on a value of an item of property in which case the expense of a professional appraiser will not be necessary. Property also includes pension/retirement benefits acquired by the spouse(s) during the parties’ marriage.

Marvin Joseph E

Homestead. Often, the parties are concerned about how the homestead will be divided by the Court. In my experience, judges and referees have approached this matter in a variety of ways. The homestead could be ordered sold, dividing the equity of the homestead in an unusual manner, or some

other decision that makes sense to a judge or referee at that time. In general, the physical custodial parent will be allowed to remain in the homestead with the children if finances allow it. The non-physical custodial parent will have either what is called a "floating lien" or a "fixed lien" for one-half of the equity in the homestead which usually accrues interest and becomes due no later than the youngest child remaining in the homestead or graduating from high school. If there is a "floating lien", the equity is not determined until such time as the lien matures whereas if there is a "fixed lien", the amount of that lien should always be determinable by the parties if the lien is due or if one party desires to buy out the other party’s interest in the homestead.

Retirement/Pension Benefits. In regards to retirement/pension benefits, either one party is awarded his/her entire retirement/pension benefit or a percentage thereof. If an entire retirement/pension benefits does not go to one of the party’s, then the normal way the retirement plan is divided pursuant to a Qualified Domestic Relations Order which has particular characteristics under a federal law called ERISA or a Domestic Relations Order for a public pension plan, such as TRA, PERA, MSRS, or FERS. One way or another, you as a client should expect that the work on the order dividing the retirement/pension benefits would usually not be finalized until after the Judgment and Decree has been entered.

Personal Property/Vehicles. Clients are often concerned about the division of personal property. Often both parties desire the same item of property. In regards to items both parties desire, please share this information with me as soon as possible. Clients have spent a lot in attorney’s fees fighting over particular items of property which expense might be able to be avoided if the item is identified early and the issue dealt with earlier. Secondly, in regards to all other items, the Court looks at the equity in an item. For instance, if a vehicle has a value of $15,000.00 and an encumbrance of $4,000.00, then the equity is $11,000.00. Although, Minnesota does not exactly equally divide all items of property, Minnesota as an equitable division state approximately divides the items of personal property, so that the bottom dollar amount on each parties’ column whether it be a his/her column should be about the same dollar amount, if not exactly the same dollar amount. Further, if there is enough assets owned by the parties, this could include division of the homestead(s), other real estate, and retirement benefits. On occasion, however, there is unequal division of property, depending on the circumstance of that particular dissolution case. Please list your concerns about property issues, if any and we will review the same.