The difference between separate and marital property

Determining who gets what share of the property and assets after divorce is critical. A key component to this process is to first determine which property is marital and which is separate. But how does court decide? Here are some general criteria so you understand what to expect.

What is considered separate property?

In most circumstances, assets you owned before the marriage remain under your sole ownership legally-speaking. You can gain separate property during marriage through a gift given only to you or an inheritance you acquired. You may also have made a premarital agreement and named certain belongings to remain separate property.

After the divorce, separate property should remain in your possession.

Can separate property become marital?

Yes, it can.

For example, if you own a business that is separate property but you use martial funds to maintain it, your spouse may have rights to part of its value. Additionally, any increase in value during marriage may be marital property. You may have started the business on your own but its profits over the course of the marriage may be marital property that gets distributed to your spouse, even though the business itself is considered separate.

The details of determining who owns what share of an asset can get complicated. This is one area where a skilled family law attorney is crucial in the divorce process. You need to understand exactly what you may be entitled to keep so you can negotiate and plan for your future.

How will these assets be divided?

After all the separate property is sorted out, the comingled and marital property will be divided. Minnesota is an equitable distribution state, meaning the division is “fair” rather than an equal 50/50 split. Some factors to determine a fair split include:

  • Financial state of both parties
  • Source of income
  • Children (including who has custody, who makes support payments, etc)
  • Length of marriage