by James Kemp
How is Property Divided in a Divorce in Tennessee?
Property owned during a marriage in Tennessee is classified as either separate property or martial property. Understanding the difference is vital for many spouses when considering divorce because while marital property is divided among the divorcing spouses, separate property is not.
Separate property or “non-marital property” generally consists of all real and personal property owned before marriage, in addition to gifts and inheritances acquired at any time. Separate property is not subject to equitable division by a divorce court. Thus, each spouse keeps his or her separate property following a divorce. On the other hand, marital property is defined as any assets or property acquired by either you or your spouse during the marriage.
Tennessee is an “equitable distribution” state which means that the court must divide marital property equitably. However, an equitable division of marital property does not necessarily mean an equal division of property, and marital property will not always be divided 50/50.
Under Tennessee law, there are several factors considered by the court when equitably dividing marital property:
- The duration of the marriage;
- The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
- The tangible or intangible contribution by one party to the education, training, or increased earning power of the other party;
- The relative ability of each party for future acquisitions of capital assets and income;
- The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
- The value of the separate property of each party;
- The estate of each party at the time of the marriage;
- The economic circumstances of each party at the time the division of property is to become effective;
- The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
- The amount of social security benefits available to each spouse; and
- Such other factors as are necessary to consider the equities between the parties.
Furthermore, under Tennessee law, separate property or the appreciation of that separate property can become marital property. If the non-owning spouse proves that both spouses substantially contributed to the separate property’s preservation and appreciation, the income and appreciation of that separate property during the marriage may be classified as marital property. A substantial contribution may include, but is not limited to, the direct or indirect contributions of a spouse as a homemaker, wage earner, parent or family financial manager, together with other factors that court may determine.
There are also two additional ways under Tennessee law that separate property can become marital property: transmutation and commingling. Transmutation occurs when separate property is treated in a manner as to give evidence of an intention that it becomes marital property. Commingling occurs when separate property is “inextricably mingled” with marital property or with the separate property of the other spouse.
For more information on Divorce in Nashville, Tennesse, check out our Education Center. Divorce is a big life decision with serious ramifications relating to property division. If you are considering divorce, call the attorneys at Ryan C. Davis Law, PLLC today at (615) 649-0110.
