In Tennessee, courts are required to equitably divide marital property between the parties in a divorce. The key word is equitable. Equitable does not necessarily mean equal. The court will usually attempt to determine the value of all marital property and then attempt to determine the proper division of that property by using eleven factors set forth in the divorce statutes. It follows then that first step in dividing property in a divorce case is to determine what property is marital property and what property is separate property.
Tennessee is a dual property state as opposed to an all property state. In a dual property state, the court may only divide property this is considered marital property.
Marital property includes all real and personal property acquired by either spouse or by both spouses during the course of the marriage up to the date of the final divorce hearing, and owned by either or both spouses as of the date of filing of a complaint for divorce. It also includes income from separate property, as well as any increase in value during the marriage of separate property, so long as each of the parties substantially contributed to the properties’ preservation and appreciation. This contribution includes both direct and indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court may determine.
Separate property is defined as all property, both real and personal, that was owned by a spouse before the marriage and any property that was acquired in exchange for property owed before the marriage. Separate property includes any income from and any increase in value of property owned by a spouse before marriage where the other spouse has not substantially contributed to the preservation and appreciation of the property. Substantial contribution means contributions that are real and significant. Additionally, there must be some link between the spouses’ contributions and the appreciation in the value of the separate property.
Separate property also includes gifts and inheritance as well as certain awards for personal injury.
Once the marital property is identified, the court will determine the division of the property based on the following factors:
The length 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 (1) 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
Such other factors as are necessary to consider the equities between the parties
Using these factors, the court will attempt to make an equitable division of the property between the parties.
In the vast majority of divorce cases, the equitable division of marital property between the parties is a simple process of dividing the property in half. In other words, in most cases the court will make a 50/50 division between the parties. Nonetheless, there are situations where the court will be forced to consider the equities and make other than an equal division of the property. In those cases, you best have an experienced divorce attorney in your corner.