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When can a Minnesota court apportion non-marital property?

A previous post discussed how Minnesota courts divide marital property when a couple goes through a divorce. In general, marital property is any property obtained during the marriage by either spouse or both spouses. Minnesota courts divide this property on an equitable basis, and the previous post looked at the factors courts consider when doing so.

Non-marital property typically remains with the spouse who owns it. Non-marital property includes property a spouse owned before the marriage. It also includes property acquired by one spouse during the marriage as a gift or by inheritance.

Although the general rule is that non-marital property is not subject to division, there are situations in which a Minnesota judge will award a portion of one spouse's non-marital property to the other spouse. This is permitted when the judge determines that after the marital property is split, the resources left to one spouse will be so insufficient as to place an unfair hardship on that spouse. When the judge concludes this would be the case, up to one-half of the non-marital property that would otherwise be exempt from division can be apportioned.

The judge can consider a number of factors when deciding whether or not to apportion non-marital property. These include how long the couple was married, whether one or both spouses had previous marriages, each spouse's income, employability, skills, age and health.

A request by one spouse for an apportionment of non-marital property will often be met by strong opposition from the other spouse. The spouse seeking the apportionment must be prepared to make a compelling case, citing the factors outlined above, as to why the apportionment is necessary to prevent undue hardship.

Source: Minnesota Office of the Revisor of Statutes, Minn. Stat. § 518.58, subd. 2, accessed Jan. 7, 2017

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