## Facts

- Billy Meredith Higgins and Rashell Rene Currier married on May 20, 2016, and separated in early 2018 after a short cohabitation period; they had no children together.
- Before marriage, Higgins held multiple retirement and investment accounts, including a TD Ameritrade 401(k) ending in 0510.
- The 0510 account had a balance of about $218,182 at the time of marriage and about $359,128 shortly before separation.
- Account statements admitted at trial showed purchases and sales of securities and receipt of interest income during the marriage.
- Currier sought an equitable share of the increase in the 0510 account’s value during the marriage.
- Higgins did not present evidence attributing the increase solely to passive market forces or otherwise separating passive growth from growth tied to marital contributions.
- The district court treated the 0510 account and its appreciation as Higgins’ nonmarital property and awarded Currier $10,500 from one retirement account; the Court of Appeals affirmed.

## Issues

1. Whether the increase in value of a spouse’s premarital 401(k) during marriage was marital property under Nebraska’s active appreciation rule.
2. Which party bears the burden to prove whether appreciation of nonmarital property during marriage is passive (nonmarital) or active (marital).

## Decision

- The Nebraska Supreme Court reversed the affirmance of the property division as to Higgins’ 401(k) accounts and remanded.
- The premarital value of the 0510 account remained Higgins’ nonmarital property.
- The appreciation in the 0510 account during the marriage had to be included in the marital estate because Higgins failed to carry the burden to exclude it as solely passive.
- The lower courts abused their discretion by misapplying the active appreciation rule and excluding the marital portion of the 0510 account’s growth.

## Legal Principles

- Property owned before marriage is generally nonmarital, but active appreciation of nonmarital property during marriage may be marital property.
- In dissolution cases, appellate review is de novo on the record for abuse of discretion in the trial court’s property division.
- The spouse seeking to exclude property (or appreciation) from the marital estate bears the burden to prove the exclusion applies.
- When appreciation could be explained by marital contributions as well as market forces, the owning spouse must prove the increase is attributable to causes other than the parties’ marital efforts; failure to meet that burden requires inclusion of the appreciation in the marital estate for equitable division.

## Conclusion

The court held that although the 401(k)’s premarital balance was separate property, the account’s increase during the marriage was marital because the account owner did not prove the growth was solely passive; the case was remanded for equitable division of the marital portion of the appreciation.


Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (Neb. 2020)