When a marriage breaks down and the couple appears headed for divorce, one of the issues the parties start to worry about is who will get what assets in the coming divorce. Who will get the house, in particular, is often a primary concern. One party may feel entitled to the marital residence while the other party doesn’t want to give up his/her financial investment in the property. The jockeying for position with regard to the marital residence can ensure a contentious – and costly – divorce if it is not addressed early on in the process. A Murfreesboro divorce lawyer at Bennett, Michael & Hornsby explains how the marital residence is typically handled in a Tennessee divorce.
The Standard for the Division of Assets in a Tennessee Divorce
Both the marital assets and marital debts must be divided in a divorce. Tennessee is an “equitable distribution” jurisdiction. This does not mean that the court must divide the assets equally. Instead, the concept of equitable distribution requires a fair division of the marital assets. Although a judge will typically start with a 50-50 division of the marital assets, there are a number of factors that might cause the judge to give one party more or less than half of the assets.
Marital Property vs. Separate Property
Only marital assets are subject to division in a Tennessee divorce. Marital property usually refers to property acquired during the marriage while separate property usually refers to property owned by a party prior to the marriage.
Common examples of assets that would be considered separate property for purposes of the division of property in a Tennessee divorce include:
- All real and personal property owned by a spouse before the marriage;
- Property acquired in exchange for property a spouse acquired before the marriage;
- Income from property (for example, rent) and appreciation of property (increase in value) owned by a spouse before marriage, except when characterized as marital property;
- Property acquired by a spouse at any time by gift, bequest, devise, or descent (inheritance);
- If a spouse suffers a personal injury or is the victim of a crime, then pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
- Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
Is the House Marital Property?
Whether the house is marital or separate property can only be determined after discussing the details with your attorney; however, the house is typically a marital asset. Even if the house was owned by one spouse prior to the marriage, it may have been converted to marital process as a result of co-mingling. In short, co-mingling refers to taking a separate asset and mixing it in with marital assets or otherwise changing the title, ownership, and/or use of the asset to the point where it appears to be a marital asset.
Can My Spouse Take the House?
A court may consider several factors when deciding how to divide marital assets, when it comes to the marital residence the most important ones are:
- The ability of each party to pay the mortgage and upkeep
- Whether there are children who will be living in the home
- Whether the court can fashion a method of adequately compensating the party who will not get the house.
If there are minor children of the marriage, the parent who will be the primary residential parent typically gets the house in a divorce as long as he/she appears able to afford the home. If there are no minor children, the court could simply order the house sold with the profits to be split among the parties or the court may award the home to one party but also order the other party to compensate the party who is giving up his/her interest in the home. For example, if you have $50,000 worth of equity in the property, the court might award you the house but order you to pay $25,000 (half of the equity) to your spouse.
Contact a Murfreesboro Divorce Lawyer
If you are contemplating divorce in Tennessee, it is in your best interest to consult with an experienced Murfreesboro divorce lawyer at Bennett, Michael & Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your appointment.