| | |
  |
              |  | Property Division
The Court is required to divide marital property equitably, and without regard to marital misconduct. To be "equitable", the court's decision must be based on all relevant factors, including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker. It is conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife. The court may also award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage. The court must value marital assets for purposes of division between the parties as of the day of the initially scheduled pre-hearing settlement conference, unless a different date is agreed upon by the parties, or unless the Court decides that another date of valuation is fair and equitable. For divorces filed in Hennepin County, the court has decided that the date of the initial case management conference is a fair and equitable date of valuation, and so routinely uses the same as the valuation date. Some other helpful definitions include: "Marital property" means property, real or personal, including vested public or private pension plan benefits or rights, acquired by the parties, or either of them, at any time during the existence of the marriage relation between them, but prior to the date of valuation described above. All property acquired by either spouse after the date of the marriage and before the valuation date is presumed to be marital property, and this is so regardless of whether title is held individually or by the spouses in a form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property is non-marital property. "Non-marital property" means real or personal property, acquired by either spouse before, during, or after the existence of their marriage, which a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse; (b) is acquired before the marriage; (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e); (d) is acquired by a spouse after the valuation date; or e) is excluded by a valid ante-nuptial contract. Non-marital property is generally returned to the party who brought it into the marriage or who acquired it by gift or inheritance during the marriage, etc. However, Minnesota law does allow a court to award up to half of one spouse's non-marital property to the other if certain rather severe conditions are met. If the Court awards one spouse's non-marital property to the other, it must make findings in support of its decision to do so. The Court's findings must be based on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, and opportunity for future acquisition of capital assets and income of each party. It may be helpful to use a balance sheet approach in dividing marital property, in which a list is made of all of the marital assets and liabilities (or debts). Once a balance sheet is completed that describes all of the marital assets and liabilities and that contains a fair value of each asset and liability as of the valuation date, the marital assets and liabilities are generally divided so that each party gets approximately an equal share. Assets such as pensions, 401(k) accounts, 403(b) accounts and other tax-benefitted retirement devices are first, if possible, awarded to the party who earned them. After that, any reasonable allocation of the remaining marital assets and liabilities between the parties is possible, so long as the "bottom line" for both parties is equitable, meaning, essentially, equal, unless there is a very good reason for a different result. If it is not possible to offset one spouse's interest in a retirement account with the rest of the marital assets and/or liabilities, then the other spouse can, as part of the property settlement in the divorce, get the right to some of the retirement assets by way of a Qualified Domestic Relations Order (QDRO), on the retirement of the spouse who earned the retirement account. Keep in mind that, in the interest of clarity, the property division is final when entered, and cannot be changed after the divorce, except in limited circumstances, and that the filing of bankruptcy by one of the parties after the divorce generally is not a reason to change the property division in the divorce. Any information contained on this site is general in nature. You should not rely on any articles, postings or other information on these pages as legal advice or to create an attorney-client relationship. If you are in need of legal advice concerning a particular matter, you are encouraged to contact Kevin Fitzgerald, Attorney at Law, by e-mail at fkevin@iaxs.net or by telephone at 952/941-5767. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Nothing contained anywhere in this website should be construed as an offer to provide, or the solicitation of an offer for, legal service, if doing so in this manner violates or could violate any law or code of professional responsibility currently applicable in the jurisdiction in which this website is read or viewed. | |
|