Identifying Assets and Valuations
November 11th, 2009
Except for child custody issues, the division of marital property is often the most adversarial and stressful aspect of a divorce. Determining who gets what can be complicated. The overall division typically depends on whether the property, or asset, is deemed to be marital or non-marital in nature.
According to Minnesota Statue 518.003, Subd. 3b, “Marital property” is defined as all property, whether real or personal, “acquired by either spouse subsequent to the marriage and before the valuation date . . . regardless of whether title is held individually or by the spouses in a form of co-ownership.” This includes retirement accounts and vested public or private pension plan benefits or rights.
In Minnesota, the court presumes that “each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife.” (Minnesota Statue 518.58, Subd. 1) As this is the presumption, the court strives for a “just and equitable division of the marital property,” and typically divides marital property equally between the parties. Valuations are generally based upon the date of the initial prehearing settlement conference, unless both parties agree to a different date.
But, what about assets held prior to marriage? If one spouse wishes to claim a sole interest in any asset, that spouse must provide proof that the asset is non-marital in nature.
“Non-marital property” refers to “property real or personal, 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 antenuptial contract.” (Minnesota Statute 518.003, Subd. 3b)
Proving that property is non-marital in nature can be extremely difficult. Often, property that was originally non-marital can become partially marital during the course of the marriage. As experienced Minnesota divorce attorneys, Banas Family Law can assist you in satisfying the burden of proof required by the court. If necessary your attorney may utilize the services of a forensic accountant to “trace” your non-marital assets and provide expert testimony on your behalf in court.
In a divorce, identifying marital and non-marital assets and understanding how a court renders its valuations is essential to ensuring that your financial interests are protected. Minneapolis family law attorney Chris Banas has extensive experience assisting clients in asset identification and valuation. To discuss your case, call 651-361-8109 now.