Property Division

The property husband and wife accumulated during a marriage is marital property requiring the parties to equitably divide all items. The name assets are held in is irrelevant. Such property includes furniture, house wears, vehicles, ATV’s and real estate. Property is usually divided on a 50/50 basis. It may be necessary to have a professional appraise or value assets. If there is a question if property is marital or non-marital, it may be necessary to hire a professional to make this determination.


Commonly Asked Questions About Property Division

What is property division in divorce?

Minnesota law requires the divorcing couple to divide their marital assets and debts, or the marital property they obtained and earned during the marriage, in a fair and equitable way meaning in a way that makes sense. This division involves all that they have – real estate, bank accounts, vehicles, 4-wheelers and snowmobiles, retirement accounts and pensions, household goods, tools, personal property, credit cards, loans, and so on.

Although there are some exceptions, inheritances, gifts, and those assets and debts which existed prior to the marriage, such as a home, are non-marital property are usually awarded to the person who brought that asset or debt into the marriage.

The same law does not provide a formula or test to determine how the division must be done. The divorcing couple either reaches an agreement without a judge’s involvement or a Trial is held in order for the judge to determine who gets which assets and debts.

How does division of property work in a divorce?

Judges strongly encourage parties to use mediation as a settlement tool. While not always successful, mediation is the least expensive route because it saves time, energy, and resources. Its power is based upon compromise as it allows the parties to decide how they want their marriage to end.

A Trial is the final and last resort. After one or more days of Trial, a judge must decide how the couple’s financial resources and assets shall be divided. A judge’s ruling is final. Judges typically rule dividing these assets equally between both parties is fair and equitable division.

Is a living trust subject to property division upon divorce?

Possibly. The answer depends upon who owns the living trust and whether or not it is owned by one of the divorcing parties. It is best practice to consult with a Minnesota estate planning attorney to learn how a divorce may impact a living trust and if the living trust may need to be amended in some way.

Are we still married during an appeal of the division of the marital property?

Unless the person appealing the divorce is asking the Minnesota Court of Appeals or Minnesota Supreme Court to reverse a district court judge’s ruling that divorces the couple, the final Order, otherwise known as the divorce Decree, terminates the marital relationship ending the marriage.

Can I file a lien on a house in a divorce property division?

Yes, but it is wise to consult with a Minnesota divorce attorney to determine if a lien is the best way to secure and protect a legal interest in the home and to verify if one has a legal interest that allows for a lien to be used.

Does a judge allow an amicable division of property in a divorce?

Absolutely. Matter of fact, judges want a divorcing couple to amicably figure out child custody and parenting time, child support, spousal maintenance, and the division of marital debts and assets. Judges, on the other hand, when spouses cannot come to a meeting of the minds must make the final decision. One or both parties may feel the judge made an inequitable or wrong ruling which in turn may cost more money and time to try to correct. Whenever possible, settle a divorce away from a courtroom.

How does bankruptcy affect the division of property in a divorce?

A divorce does not remove a person’s name on a mortgage, credit card, or medical bill, thus if a spouse is going to absorb and pay a specific credit card in both parties’ names and then files for bankruptcy after a divorce, the remaining spouse is 100% responsible for that debt. At times a bankruptcy makes sense because the divorcing couple may
have a level of debt that neither can afford on a single income complicating the final division of the marital property and debts.

A divorcing couple unable to pay their current debts should consult with a bankruptcy attorney early in the divorce process to strategize how bankruptcy could positively or negatively affect them both.

How to make a divorce property division worksheet?

There is no right or wrong worksheet. An Excel spreadsheet is a convenient tool since it is very easy to change and update. Another option is creating a spreadsheet using Word although it does not provide the ease of Excel. There is nothing wrong with using a pad of paper to create this worksheet.

No matter the format, a worksheet should include a separate entry for each asset with a value of $500.00 or more, the fair market value of each asset, the balance of the debt, if any, on an asset, and any other unpaid debt. From there each person can start identifying what items they each want keeping in mind both should receive 50% of what is on their worksheet.

If you would like more information about Property Division, please schedule an initial consultation appointment online and fill out the Consultation Intake Form.