When a couple decides to end a marriage, the legal process of divorce that follows can be as adversarial, or as amicable, as the parties make it. During the divorce process, a number of issues must be resolved. Ideally, all of these issues are resolved in an out of court Marital Settlement Agreement; however, if they cannot be resolved out of court, they will have to be resolved at trial. One of the major causes of friction in a divorce is the division of property. If you are contemplating, or planning, a divorce in the near future, it may help you to read what a La Vergne divorce lawyer has to say about the division of property in a Tennessee divorce.
When you get married, you will combine your property with that of your spouse to some extent. Some couples decide to throw everything together as soon as the ink on the marriage license is dry while others maintain at least some spate property and assets even after years of marriage. Regardless of how you and your spouse chose to handle your assets and property during the course of the marriage, the law says that most of that property is subject to division in a divorce. Not understanding the legal concept of marital property is often what leads to conflict in a divorce.
The law recognizes two types of property – separate property and marital property. What you may consider to be separate property may not be the same as what the law considers to be separate property. Only marital property is subject to division in a divorce. As a general rule, all property acquired during the marriage is classified as marital property without regard to whose name is on the title. Separate property is property you owned prior to the marriage and/or property you inherited during the marriage. Separate property, however, can become marital property if it is “co-mingled.” For example, if you owned a home prior to your marriage and then put your spouse’s name on the title after the marriage, it might now be considered marital property. The best way to be sure property remains separate property is to execute a pre-nuptial agreement prior the marriage.
Equitable Division of Property
The State of Tennessee is an “equitable division” state when it comes to the division of property in a divorce. An “equitable” does not always mean an “equal” division. If a court has to divide marital property in a divorce the court may use the factors set forth in T.C.A. § 36-4-121(c) which include:
- 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.
If you are contemplating divorce in the State of Tennessee, it is in your best interest to consult with an experienced La Vergne divorce lawyer at Bennett, Michael & Hornsby as soon as possible to ensure that your rights are protected throughout the divorce proceedings. Contact the team today by calling 615-898-1560 to schedule your appointment.