Separate Property Rules for a Divorce in Minnesota

By Beverly Bird

Some property is safe from distribution in divorce in every state. Many jurisdictions call this “separate” property, but Minnesota refers to it as “non-marital” property, which is more fitting. Minnesota is an equitable distribution state and, as in other equitable distribution states, one spouse might hold title to an asset solely in his own name. This may seem like separate property, but often it's not. Non-marital property is exactly what it sounds like. It's property that does not belong to the marital union.

Equitable Distribution

Courts don’t necessarily divide marital property evenly in equitable distribution states. In Minnesota, judges apportion assets between spouses in a just or fair balance after considering several factors. These factors can include which spouse has a greater need for the marital property. This might be the case if a spouse has no marketable job skills and isn’t likely to be able to earn enough money to replace property she loses to her spouse post-divorce. Minnesota considers which spouse -- if not both -- contributed to the acquisition of the property. Courts consider it a contribution if one spouse cared for the home, allowing the other spouse the freedom to go out, work and earn income.

Exempt Property

In most cases, non-marital property is exempt from distribution in Minnesota. Property does not belong to the marriage if you earned it or acquired it before your wedding date or after your marriage ended. For example, if you earned part of your retirement benefits before your marriage, this portion is not distributable to your spouse in a divorce. Non-marital property also includes gifts or inheritances made to one spouse alone, no matter when that spouse received it. You can find a complete list of non-marital property in Section 518.003(3)(b) of the Minnesota statutes.

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Date of Valuation

In some states, marital property is anything spouses acquire up until the date of their divorce. Minnesota statutes are more lenient in this respect. Property acquired after what the courts refer to as the “date of valuation” is non-marital property. Although the date of valuation can differ from county to county, it generally arrives relatively early on in a divorce case. For example, in Hennepin County, the cutoff point is the date of your first case management conference, usually about three weeks after you or your spouse file for divorce. This means that after you attend your case management conference, your income becomes non-marital property, contributions to your retirement plan are non-marital, and -- in most cases -- anything you purchase with your own income is also non-marital.


Exceptions exist to every rule, especially in divorce law. Minnesota recognizes prenuptial and post-nuptial agreements -- those made after the date of marriage. Marital property can become non-marital under the terms of any such agreement if one spouse waives her right to a portion of it. Judges have a great deal of discretion when dividing marital property in equitable distribution states, and in Minnesota, the law sometimes allows them to transfer non-marital property to the other spouse under isolated circumstances. This might occur when very little marital property exists for division, so one spouse is left virtually impoverished after divorce. The court might order a transfer of some portion of her spouse’s non-marital property to avoid this from happening.

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