There are many misconceptions regarding marital property division during a divorce. These often make it easy for someone without an attorney to get taken advantage. So, in hopes of preventing some very costly mistakes, let’s debunk five common myths about marital property division in divorce. We’ll look at:
- How marital assets are divided during a divorce.
- What happens when parties can’t or don’t agree on the division of marital property during a divorce.
- What influences the division of marital property during a divorce (in particular, what factors are important to a judge).
- When Non-Marital property can be awarded in a divorce.
- The rules regarding the use of marital assets during the divorce process.
MYTH #1: If only one spouse is listed on the account or title, then it can’t be considered marital property.
False. All property acquired by either spouse after the date of marriage and before the valuation date (typically, the date of the Initial Case Management Conference) is presumed to be marital property. This is regardless of whether the title is held individually or by the spouses in a form of co-ownership. (Minnesota Statutes, Chapter 518.003, Subdivision 3b).
In other words, all property is initially presumed to be marital property, regardless of who’s on the title or who currently has possession of the property. In fact, by law, you have to prove to the court that an asset is not marital property, in order for it to be considered Non-Marital Property.
Find out what you’re entitled to in a divorce and what’s considered marital property by checking out our article on Marital Assets.
MYTH #2: Each marital asset is always divided in half during a divorce.
False. It’s true that in any divorce in Minnesota, a court should make a property division that is “fair and equitable.” (Minnesota Statutes, Chapter 518.58, Subdivision 1). However, a “fair and equitable” division of marital property doesn’t necessarily mean that each asset is split in half. Instead, a more comprehensive approach is usually taken to divide marital property in a divorce.
Dividing Marital Assets in Divorce
Typically, marital property division during divorce happens in a few stages. First, an inventory is taken of all the marital property. Once all the marital property has been identified, each asset gets valued. For example, with real estate, this may mean hiring a third party to appraise the value of a home. Once each martial asset has been assigned a monetary value agreed on by both parties, the parties try to divide the marital property so that each ends up with a similar total value.
For instance, if there is only one vehicle in the marriage, the party that needs the vehicle the most may be awarded the vehicle. The other party may then be compensated, by being awarded some other marital assets that are equal to the value of the vehicle. However, when it comes to marital property such as, a retirement account, the couple has the option to split the value of the retirement account.
The division of marital property during a divorce often looks different from couple to couple. Avoid any hard and fast rules that don’t take into account the specific situation.
MYTH #3: If parties can’t agree, whoever is currently in possession of the marital property, is awarded the marital property.
False. If the divorcing parties can’t agree or don’t agree on marital property division, they have several different options. They can try alternative dispute resolution methods, such as mediation, early neutral evaluation, arbitration, etc… If such methods aren’t successful, the couple can go to trial and ask the judge to decide. As mentioned earlier, judges in Minnesota are tasked with the responsibility of a ‘fair and equitable” division of marital property during a divorce. Judges look at and use specific factors to evaluate and help them make this decision.
Factors Used to Determine Marital Property Division in Divorce
In Minnesota, when deciding marital property division during a divorce, the judge bases his/her decision on all relevant factors including, but not limited to:
- the length of marriage,
- any prior marriage of a party,
- the age,
- amount and sources of income,
- vocational skills,
- opportunity for future acquisition of capital assets,
- income of each party, and
- 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.
(Minnesota Statutes, Chapter 518.58, Subdivision 1).
In addition, the court believes that each spouse made a substantial contribution to the acquisition of income and property during the marriage, and marital misconduct is not to influence the distribution of marital property. (Minnesota Statutes, Chapter 518.58, Subdivision 1).
Lastly, it can be reassuring to know that if there is a substantial difference in the value of a marital asset between the date of valuation and the final distribution, the court may adjust the valuation of an asset to promote a fair and equitable distribution. (Minnesota Statutes, Chapter 518.58, Subdivision 1).
MYTH #4: All non-marital property is off-limits in a divorce, and thus, can never be divided.
False. If either spouse is still in an unfair position after the division of marital property, in order to prevent undue hardship, the court may award up to one-half of the property excluded as non-marital property (with the exception of property excluded by a valid prenuptial contract) to a spouse. (Minnesota Statutes, Chapter 518.58, Subdivision 2).
The court will use all relevant factors, including, but not limited to the same factors used to decide marital property division in non-marital property division. In addition, the court may award household goods and furniture not acquired during the marriage to either spouse. (Minnesota Statutes, Chapter 518.58, Subdivision 1).
MYTH # 5: A spouse can avoid sharing marital property by quickly using or hiding the marital asset(s) for him/herself.
False. Neither party can dispose of any marital asset(s) during the divorce except for:
- the necessities of life,
- the necessary generation of income, or
- the preservation of assets.
(Minnesota Statutes, Chapter 518.091, Subdivision 1).
If a spouse during or shortly before the divorce transferred, encumbered, concealed or disposed of marital assets the Court can compensate the other party. The Court can place both parties in the same position they would have been had the transfer, encumbrance, concealment, or disposal not occurred.
It is also flagrantly dishonest. If a Judge weighs a spouse’s credibility later, a track record of dishonesty can be held against him or her.
If you’re not sure of all your finances, or you think your spouse is hiding (or may try to hide) marital property from you during your divorce, learn how to protect yourself by reading: Is Your spouse hiding assets from You?