Tennessee residents may find it helpful to have a basic knowledge of how assets are divided during a divorce.
If you are considering a divorce in Tennessee, you may be concerned with how your property will be divided during it. Because this is an important aspect of the divorce process, having a basic knowledge of the processes regarding division of assets is helpful.
Who will divide the property?
In Tennessee, divorcing couples have the option of determining how their property is divided. If you and your spouse can agree on the terms of property division, you have wide latitude in this area. However, if you cannot come to an agreement, a judge will divide the property during the divorce proceedings.
How is the property divided?
Assuming that you are unable to reach an agreement with your spouse on property division, the court will first determine whether a valid prenuptial agreement exists, as this would affect what property is available for division.
After that, the court will determine which property is marital and which is separate. In general, “separate” property is pre-owned property by one of the spouses that was brought into the marriage. Also, it includes property received by one spouse during the marriage as a gift, inheritance or certain damage awards obtained from a personal injury lawsuit. “Marital” property, on the other hand, includes most real and personal property obtained by one of both spouses during the marriage. As Tennessee law is complex on this issue, there are exceptions to these rules.
Under the law in Tennessee, each spouse keeps his or her separate property, in most cases. However, marital property is divided according to what is equitable, just and reasonable under the law, which is not always 50-50. In doing this, a judge may award property to one of the parties or order it sold and divide the proceeds among the parties.
How does the court decide how to divide the property?
When considering what is equitable under the law, the court considers many factors such as:
• The length of the marriage
• The health, age, employability, skills, financial needs, liabilities and earning capacity of both spouses
• The ability of each party to acquire assets or obtain income
• The separate property of each spouse
• The contribution of each spouse, both positively and negatively, to the assets
• The estate of each spouse at the beginning of the marriage
• Social security benefits
• The economic circumstances of each spouse after the property is divided
• Each spouse’s tax consequences
• Other factors that affect the equality between the parties
If my spouse is at fault for the divorce, does it affect property division?
In general, a spouse’s fault for the divorce has no effect on how the property will be divided. However, it may be considered when alimony is determined.
Do I need an attorney?
Although an attorney is technically not required, divorce law is complex and full of pitfalls for the uninitiated. An experienced attorney can ensure that all assets of each spouse are disclosed and fairly valued. Additionally, experienced counsel can ensure that each party’s unique circumstances are taken into account, resulting in a division of property that is as fair and equitable as possible.