Most divorces involve some type of division of property. However, not all assets or property are subject to division. Part of the divorce process explores the property of each party to determine what exactly needs to be divided. During this process, property is labeled as either “marital” or “non-marital.”

Determining whether property is marital or non-marital is crucial in a divorce.

In general, non-marital property will not be part of the “equitable” distribution between the parties. Non-marital property, as its name suggests, is property that belongs to only one spouse. Examples of non-marital property include:

  • Property that one spouse owned before the marriage;
  • Gifts or inheritance received specifically by one spouse;
  • Property excluded by a valid prenuptial agreement; or
  • Property acquired by one spouse through an exchange of other non-marital property

While non-marital property is often not divided during the divorce, there are reasons why it may be. Non-marital property can have a marital component to it, depending on how the property was used and paid for. For example, if property was purchased prior to the marriage but paid off during the marriage, then the portion paid off during the marriage will most likely qualify as marital property.

Marital property generally refers to all assets and property that are “shared” between the spouses during the marriage. In other words, almost everything acquired after the marriage is considered marital property (unless it qualifies as non-marital problem as stated above). This even applies if the spouses decide to keep separate bank accounts.


In the Minnesota court system, all property is presumed to be marital unless proven otherwise. The burden of proof rests with the person who is claiming that a given property is non-marital.

In order to prove that it is not included with marital property, there must be documented evidence that the property was acquired independently prior to the marriage, that the property is excluded because of a prenup, or that the property was a gift or inheritance to only one party.

“Tracing” is the process of identifying the non-marital property and determining the value prior to the marriage. Proper documentation is the simplest way to identify property as non-marital. For example, a car title or deed may be enough to indicate that you owned the property prior to the marriage.

However, there are cases where the tracing of non-marital property gets tricky. For example, if you sold non-marital property during the marriage and added the sale amount to a joint account, then it may be more difficult to label the exact value of the non-marital property. Non-marital property must be “traced” and determined before the marital property can be divided.

Claiming your non-marital property is an essential part of the divorce process. It allows you to protect the assets that were yours prior to the marriage. Of course, as with many other legal matters, non-marital property can be a complex issue that needs expert advice from a qualified attorney.