Legal Question in Family Law in Minnesota

Re: divorce/property

He would have a marital interest in a portion of the equity accrued during the marriage, The formula that is used is called the Schmitz formula.

Re: divorce/property

Thank you for your questions.

The concern expressed in your first question (does he have a claim against my home) is shared by many others who, despite their best efforts and intentions, find themselves involved in another troubled relationship, and then worry about the security of the property they accumulated before their subsequent re-marriage. The basic �legal� answer to your first question is rather straight forward: Real estate you brought into the marriage remains your non-marital property, even if his income was used to pay the mortgage or make repairs. The difficulty arises in separating out the value of his contributions from the underlying value of the property you brought into the marriage. These �tracing� cases can become enormously complicated, but based on the limited information in your question, I suspect the equity in your home could be successfully disentangled.

What I find most unusual about your message, is your second question: whether your husband could remain in the home, despite the problems in your marriage, provided that the equity in your home is preserved for the benefit of your children (evidently from a prior marriage). This suggests you live on the horns of a painful dilemma, torn between a lingering compassion for your husband, perhaps, or a desire to avoid the trauma of another divorce, balanced against an overwhelming need to fulfill your primary obligation to your children. (Isn�t that any parent�s primary obligation, in fact?)

The resolution of this second question is much more difficult, and involves somewhat more complicated issues of estate planning. The simple answer is that you could prepare a will that does exactly what you request, but your husband would have the right to elect against the will, that is, he could legally disregard the directives in your will. With his cooperation, you could possibly place the house in a trust created for the benefit of your children, and such a trust could permit him to enjoy a period residence in the property following your death. The key word that last sentence is �cooperation.� If he does not share your desire, it is unlikely you could construct a satisfactory estate plan that would meet your needs.

Please feel free to contact me if you have further questions about this matter. If it was possible to resolve this matter through creative estate planning, I would direct you to another attorney in my office who specializes in that area. I, on the other hand, could certainly explore any other questions you may have regarding your marriage. Best wishes.