If you’re going through divorce in Tennessee, it’s important to know what is considered marital property and how property will be divided up between you or your spouse. Lawyers and courts refer to this process as property division.
Property division requires that all property is identified, classified, and valued. Tennessee is an “equitable distribution” state, meaning that after the property is classified as married or separate, the trial court must divide marital property equitably based on the factors listed in T.C.A. § 36-4-121(c).
This article will provide answers to some of the most common questions regarding the division of property in the state of Tennessee.
What Is Marital Property?
Marital property is property that belongs to the marriage as opposed to separate property, which is separately owned by a single spouse. Marital property includes all real and personal property both tangible and intangible acquired by either spouse during the course of the marriage.
It also includes any income or increase in value from separate property if each spouse made substantial contributions to its preservation and appreciation. “Substantial contribution” can be the direct or indirect contribution of a spouse as homemaker, wage earner, parent, or family financial manager along with any other factors the court decides to consider.
What Is Separate Property?
Separate property is any property not considered marital property, including the following:
- All real and personal property owned by one spouse before marriage.
- Property acquired by a spouse in exchange for property acquired before the marriage
- Income and appreciation from property owned by a spouse before marriage, except when considered as marital property by means of another legal theory.
- Pain and suffering awards, victim of crime compensation awards, and awards for future medical expenses and future lost wages.
- Property acquired by a spouse at any time by gift, bequest, device, or descent (can include gifts from one spouse to another).
- Property a spouse acquires after an order of legal separation where the court has made a final disposition of the property.
Who Will Divide Our Property?
If both parties can come to an agreement, you can disburse the property as you see fit. In this situation, your resolution will be documented in what is called a Marital Dissolution Agreement. If you can’t reach an agreement, the judge will determine what property each person gets to keep by ordering an equitable distribution of the property.
What Is Equitable Distribution?
Equitable means just, fair, and reasonable based on the factors set out in the law. Equitable does not mean equal, however, most judges admit that they begin the process assuming that the property will be divided equally. Evidence can suggest that a fair distribution would require one spouse to receive a larger share than the other. In this case, the judge can make such an order.
What Factors Will The Court Consider When Dividing Our Property?
Under Tennessee law, a judge will consider the following factors when deciding how to divide your marital property:
- The duration of your marriage.
- The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities, and financial needs of each spouse.
- The tangible or intangible contribution by one spouse to the education, training, or increased earning power of the other.
- The relative ability of each party for future acquisitions of capital assets and income.
- The contribution each spouse has made to the acquisition, preservation, appreciation, or dissipation of the marital or separate property, including the contribution of a spouse to the marriage as homemaker, wage earner, or parent, with the contribution of a homemaker and wage earner to be given the same weight if each spouse has fulfilled his or her role.
- The value of each spouse’s separate property.
- The estate of each spouse at the time of the marriage.
- The economic circumstances of each spouse at the time the division of property is to become effective.
- The tax consequences to each spouse.
- The amount of Social Security benefits available to each spouse.
- Any other factors that are necessary to consider the equities between the parties.
Is My Spouse Entitled To A Share Of My Inheritance?
Inheritance is separate property, meaning it belongs only to the inheriting spouse. However, if the inheritance is treated as marital property (commingled by being entered into a joint bank account or used on a house that is jointly owned, for instance) it may be treated as marital property subject to equitable division.
If you’ve inherited a large amount of money, you should talk to a lawyer to ensure your rights are protected. You should also be aware that the amount of separate property is a factor in dividing marital property. As such, keeping your inheritance separate can result in you receiving a smaller share of the marital property.
How Is Property Division Decided When Couples Have Mixed Marital And Separate Property?
Spouses often commingle their marital and separate property. When separate property is commingled, it can lose its separate status and become marital property. These situations can be challenging for courts to resolve. If the property can easily be traced back to a particular spouse, the court will likely award it to them. However, if it cannot be easily traced, the judge is less likely to award it as separate property.
Another way separate property can become marital is through a process called transmutation. The Tennessee Supreme Court describes transmutation as occurring when “separate property is treated in such a way as to give evidence of an intention that it becomes marital”.
A Lawyer That Will Fight For You
Tennessee divorce procedures can be long and tortuous, but at Hunter’s practice, you’ll find a well developed system to guide you through the process and make it as seamless as possible. As your Murfreesboro divorce attorney, Hunter always looks for ways to benefit you as much as possible.
He has experience fighting for clients’ rights to keep what they want, from small personal items to big ticket items like the house. He will work with you to identify what you want and deserve in the divorce settlement and negotiate for those things with professionalism and unwavering determination. If you have questions about divorce or division of property, contact expert divorce attorney Hunter Fowler today.