Once the decision has been made to end a marriage, the next step is to start the divorce process. That usually prompts many questions and concerns. Among the most common concerns is how assets will be divided during the divorce. To help answer that question, a Murfreesboro divorce attorney at Bennett, Michael & Hornsby provides some guidance on how assets are divided in a Tennessee divorce.
What Assets Are Divided?
Before worrying about how assets are to be divided in your divorce, you need to know what assets are going to be subject to division. In Tennessee, only marital assets are subject to division in a divorce and separate property remains the property of that party after the divorce.
Tennessee Code Section 36-4-121 defines marital property as follows: “Marital property means all real and personal property, both tangible and intangible, acquired by either or 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, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. . .”
That same code section also defines separate property as:
- 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.
Understanding Equitable Distribution
Ideally, the parties to a divorce can decide for themselves how they will divide their assets and debts without the court having to intervene. If the parties cannot reach an amicable out of court settlement, a court will have to decide how the assets are divided. In that case, a judge must use an “equitable distribution” standard under Tennessee law. An equitable distribution, however, does not mean that the court must divide the assets equally. Instead, it simply requires a judge to make a fair division of the marital assets. A judge will typically start with a 50-50 division of the marital assets; however, numerous factors may cause the judge to give one party more or less than half of the assets. Specifically, a judge may consider the following factors when deciding how to divide marital property in Tennessee:
- 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 (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; (who contributed more, who performed marital role more, and why)
- 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.
You should also note that Tennessee law allows a court to give “special consideration to a spouse having physical custody of a child or children of the marriage” when deciding which party shall retain possession of the marital home.
Contact a Murfreesboro Divorce Attorney
If you are considering divorce, or your spouse has recently served you with divorce papers, it is in your best interest to consult with a Murfreesboro divorce attorney at Bennett, Michael & Hornsby as soon as possible to discuss your needs.
Coronavirus Concerns: We are offering free consultations to new clients in our office or by phone, FaceTime, WhatsApp or Skype. Contact us online or call 615.898.1560 to schedule a meeting.
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