How do you protect your separate property in a divorce?

On Behalf of | Jul 29, 2021 | Family Law |

Unless you and your spouse signed a prenuptial agreement when you got married, you have to decide how to divide your property during the worst part of your relationship or leave that decision to someone else entirely.

If a judge from the Minnesota family courts has to make a decision about property division, they will apply the state’s equitable distribution law. Essentially, your marital property should get split in a way that is fair given your circumstances. Marital property includes what you buy during your marriage and the income you earn while married. What you owned before marriage is separate property. Inherited assets and gifts are often separate property too.

Understanding the equitable distribution standard can help guide you if you attempt to settle your divorce outside of court. It can also inform how you prepare for litigated divorce proceedings. If you have certain valuable assets in your own name, you may want to establish them as separate property so that they aren’t subject to division by the courts.

How do you show something you own is your separate property?

Financial records are crucial to establishing specific assets as separate property in a Minnesota divorce. For example, if you can show that you owned a house before marriage by producing the note from your mortgage or the deed that transferred ownership to you if you inherited the property, that documentation will help your case. So will records that show that you did not use marital assets to purchase or maintain your separate property.

Vehicles, real estate, savings accounts and even businesses can all remain separate property if you have adequate documentation showing when you acquired them and how you paid for them. If you can prove that an asset is your separate property, then your spouse won’t have a claim to it in the divorce in most cases.

Beware of commingling

Even when you inherit an asset, own it before you get married or acquire it with money that is your separate property, your spouse could still try to claim it in a divorce. Combining separate property with marital property is commingling, and it blurs the line between what is yours and what belongs to both of you. Giving your spouse unfettered access to or control over your separate property could also be a form of commingling.

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