When going through a divorce in Minnesota, one of the most common concerns is how to protect assets acquired before the marriage—especially a home. Whether you purchased the property independently or received it as a gift from a parent or relative, it may qualify as non-marital property. However, preserving that non-marital interest requires careful planning and thorough documentation. Below are key steps that can help protect your non-marital claim in the event of a divorce.
For example, a former client recently asked how to structure a gift to his adult child—a down payment on a home. His child is not yet married, but he wants to ensure the gift is protected if she later marries and divorces. The question became: how can the child preserve her interest in the home if she cohabits or eventually marries?
If you’re in a similar situation—owning a home before marriage or receiving one as a gift—these high-level guidelines can help safeguard your non-marital interest under Minnesota law. However, every situation is unique, and the right approach may depend on the specific facts of your case. We strongly recommend speaking with a qualified family law attorney for personalized legal advice.
Steps to Protect a Non-Marital Property Interest
1. Keep Records of the Purchase
Save all documentation related to the home’s purchase. These records are essential in proving the non-marital character of the property.
2. Know When the Interest Begins
If you’re not married when you acquire the home—such as in the case of a gift or purchase before marriage—your claim to a non-marital interest will generally originate from the timing and source of the acquisition. For example, my client’s non-marital interest stemmed from the home being acquired before marriage, not from the fact that it was a gift from her parent.
If You Cohabit Before Marriage
3. Consider a Cohabitation Agreement
A written cohabitation agreement can help clarify ownership and avoid costly legal disputes if the relationship ends.
4. Avoid Unjust Enrichment Claims
To prevent future claims from a significant other, it’s wise for the homeowner to make the mortgage payments. The non-owner partner can cover secondary expenses such as groceries, utilities, or shared household items.
If You Marry After Acquiring the Home
5. Don’t Borrow Against the Home’s Equity
A cash-out refinance or home equity line of credit (HELOC) may convert your non-marital interest into marital property unless handled carefully.
6. Save All Refinance Documents
If a refinance or HELOC occurs, retain all closing paperwork. These records help trace your original non-marital interest.
7. Track Capital Improvements
Keep receipts for substantial improvements—such as remodeling, additions, or major repairs. Cosmetic updates like painting or new carpet typically don’t count.
8. Avoid Adding a Spouse to Title
Changing the title to include a spouse can create marital interest. If you must change the title, clearly document your intent to retain your non-marital claim.
If You Sell the Home and Buy a Second Property
9. Retain All Documentation
If the original home is sold and the proceeds are used to purchase a second property, you’ll need to keep all records outlined above.
10. Be Cautious About Commingling Funds
If sale proceeds are deposited into a bank account, retain full records from the date of deposit to the date of withdrawal. Avoid mixing these funds with marital money. Commingling makes it harder to prove a non-marital claim in court.
Final Thoughts
These guidelines offer a high-level overview of how to protect a non-marital interest in a home under Minnesota divorce law. However, each case is different. The strategy that works for one person may not work for another. If you believe you may have a non-marital interest in a home or other property—and are contemplating divorce or marriage—it’s critical to consult with an experienced family law attorney.
At Lommen Abdo, we help clients across Minnesota understand and protect their property rights before, during, and after marriage. If you’d like to schedule a consultation, contact us today.