Farhan Hassan | June 5, 2011 
In Minnesota, non-marital property is generally not subject to division by the Court in a divorce proceeding. Therefore, if a spouse can establish that a given asset is non-marital, he or she would generally be awarded that asset without any financial contribution to the other spouse.
Examples of non-marital interest include a gift during the marriage to one spouse; an inheritance, even if received during the marriage; or if a spouse owned an asset prior to marriage and kept it separate from marital funds during the marriage. Sometimes, an asset may have a non-marital and a marital component (an example is if one spouse owned a house prior to marriage but mortgage payments have been made after the marriage).
A spouse who pursues a non-marital claim has the burden of proving the asset’s non-marital nature. In order to do this, the party must be able to “trace” the non-marital interest and must also show that no marital funds were commingled with the non-marital funds.
Tracing refers to a process where the spouse attempting to demonstrate that a non-marital interest connects the dots between the non-marital nature of the property when it was received until the divorce proceeding. As an example, if a spouse had $10,000 in an individual account before she got married, she would be able to “trace” her non-marital interest by showing that no other marital funds were commingled into this account and that the account remained separate throughout the marriage. In this case, tracing would mean providing the bank statements from the initial deposit (before marriage) to the present (time of the divorce).
If non-marital funds are commingled with marital funds, they may lose their non-marital nature. For example, if a spouse had $10,000 in her individual account before the marriage and made several deposits and withdrawals consisting of marital funds, the account may lose its non-marital nature because marital and non-marital funds were commingled.
Even if an asset is non-marital in nature and even if a spouse can demonstrate that it is non-marital, the Court still has the equitable power to invade up to one-half (1/2) of the non-marital assets and award a portion of those one-half (1/2) assets to the other spouse provided that the circumstances dictate such an award.
If your case involves non-marital claims, you should contact a Minnesota divorce attorney who has experience in dealing with non-marital claims.
