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Getting a Divorce: Who Gets What?

I hear over and over (and over) that “if I get divorced, my wife/husband will get half of everything.” That’s simply not true.

IN GENERAL:

Division of property during a divorce is governed by Minnesota Statute §518.58, which states that, “upon a dissolution of a marriage, . . . the court shall make a just and equitable division of the marital property of the parties” [emphasis added].  “[J]ust and equitable” means “fair.”

The statute specifically instructs the court to consider the following circumstances, among others: 

  • the length of the marriage,
  • the age and health of  the parties,
  • each person’s amount and sources of income,
  • employability, opportunity for future acquisition of assets, and
  • the needs, of each party.  

The court also looks at who earned or acted to increase the income, as well as who may have depreciated assets (such as  through exorbitant spending)  If one party primarily works outside the home while the other serves as a “homemaker,” especially if there are children, the homemaker’s contribution as such will balance the income-earner’s.

WHAT TO  DO ABOUT EDUCATION:

Education acquired during the marriage is a particularly tricky variable the court can factor in depending on the circumstances of the two people involved.  When a court tries to ascertain the parties’ earning potential—their ability to care for themselves after whatever finances they contributed to the marriage are divided—“[p]articular attention is given to periods of training or education.” Griepp v. Griepp, 381 N.W.2d 865, 869 (Minn. Ct. App. 1986).

As something of a rule, if the husband or wife (but not the other) benefits from an education during the marriage the court may consider the education a “relevant factor” to be considered in its determination of spousal maintenance (formerly known as alimony). 

So, all other things being equal, the court will try to compensate the party that, in effect, lost money that was spent on the other party’s education or that the non-student spouse spent on maintaining the family’s standard of living while the student was in school. 

The rationale is that the educated party has increased his or her income potential, a benefit that would have accrued to the family had they stayed married, but that, upon a divorce, only benefits the one.

ALL OTHER THINGS ARE NEVER EQUAL:  

In Dela Rosa v. Dela Rosa, 309 N.W.2d 755 (Minn. 1981), the wife worked several jobs to put the husband through undergraduate and medical school.  She did so with the anticipation of sharing a standard of living that comes with a medical degree.  However, the parties divorced before the husband finished medical school, so, while the wife sacrificed, she never enjoyed the benefits of the degree.  The husband finished medical school after the parties separated.

The court held that the undergraduate degree, earned during the marriage while the wife worked three jobs to support the family, was not divisible.  That is, the wife was not entitled to a percentage of the husband/doctor’s degree as represented by future earnings (calculated at present value).  However, she was entitled to money to compensate her for the specific financial sacrifices she made to support the family while the husband was attending school.

Before you apply this analysis to your own situation, however, consider some other cases.

In Davey v. Davey, 415 N.W.2d 84 (Minn. App., 1987), decided six years after Dela Rosa, the court seemingly reached the opposite conclusion.  Again, the wife worked and supported the family while the husband attended medical school.  She contributed nearly $45,000 compared to the husband’s roughly $8,000 contribution. 

However, the court awarded the wife nothing, no percentage of the future earnings based on the husband’s education nor any compensation for the money she contributed to the family by working full time while the husband was in school.

Unfair?  Not necessarily.  In the Davey case, the husband completed medical school while the parties were married and practiced for roughly ten years as an orthopedic surgeon, again, while the couple was married. 

The court reasoned that since the wife had enjoyed the privileges of the husband’s successful career and, as a result, had not worked outside the home since he graduated from medical school, she had received compensation for her earlier contributions to the family.  The couple had also accumulated enough money and property during this time that there were substantial financial resources to be divided between them.  Thus, unlike the wife in Dela Rosa, the wife in Davey would have assets with which to support herself after the divorce.

There are other facts in both cases.  I have abbreviated them for the sake of brevity. 

The point is that the myth of a 50%-50% division—or he or she “gets half”—is almost never the case.  Education is only one of many variables the court will consider.  I will blog about other factors soon.

If you are thinking about a divorce, call me.  A knowledgeable and experienced lawyer can represent you with an understanding of how education and many, many others affect your standing so the court gives you your fair share.

Contact:

Barry S. Edwards, J.D.,  Ph.D

Barry S. Edwards Law Office

(612) 310-7398

And visit my website to see what else I can do for you: www.barrysedwardslaw.com

Initial consultations are free and confidential.

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