Division of property in a divorce is expected. Marital assets are divided in a manner that is considered fair and equitable to both parties. Non-marital assets, however, are typically not divided. Deciding what can be deemed non-marital assets can become a little murky for divorcing couples, which is why it is important to have an experienced divorce lawyer represent you during this process.
Real estate can sometimes raise questions regarding what is marital and non-marital. Divorcing parties will often have purchased a home or other piece of real estate using a down payment that was a gift. When determining if the down payment or other contribution towards the purchase of the home creates a non-marital interest, we look to the statute and case law. Non-marital property is defined in MN Stat. 518.003, subd. 3b. Under (a) of this section, non-marital property may be acquired as a gift made by a third party to one but not to the other spouse.
There is some nuance in the discussion. A gift to one party may create a non-marital interest, where a gift to both parties will have a stronger marital claim. For example, a gifted down payment given as a wedding gift has different context than a gift given later in the marriage. The meaning and intent behind such a gift need to be examined. Written documents, contracts, and other evidence showing intent of the person gifting the payment can be persuasive. In cases where this is not available, their testimony may be used in the case.
The Court is suspicious of parties trying to create non-marital interests when circumstances of a gift at the time it was given may indicate otherwise, and with good reason. Parties are often trying to claim what they can in a divorce. Ultimately, the burden is on the party trying to prove a non-marital claim. If you have questions about what can and cannot be claimed, it is best to speak with an experienced divorce attorney.
