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Memphis, TN 38117
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Property

Generally, “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.

What is included as "marital property"?

The definition of marital property is found in section 36-4-121 of the Tennessee Code. 

In addition to all real and personal property acquired by either or both spouses during the course of the marriage, marital property also includes income from, and any increase in value during the marriage, property determined to be separate property if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage. 

 Marital property also includes  recovery in personal injury, workers’ compensation, social security disability actions and other similar actions for the following:  wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property and property damage to marital property.

What is separate property?

Separate property is property determined to belong solely to one of the parties and is not subject to equitable division in a divorce.
“Separate property” means:

  • All real and personal property owned by a spouse before marriage, including, but not limited to assets held in individual retirement accounts;
  • Property acquired in exchange for property acquired before the marriage;
  • Income from and appreciation of property owned by a spouse before marriage (except when characterized as marital property based on the substantial contribution of the parties to the separate property of one of the parties);
  • Property acquired by a spouse at any time by gift, bequest, devise or descent;
  • Pain and suffering awards, victim of crime compensation awards, future medical expenses and future lost wages;
  • Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

Tenn. Code Ann. section 36-4-121

What is Equitable Distribution?

In Tennessee the process of dividing the property and debts of a marriage is called Equitable Distribution.

In all actions for divorce or legal separation, the court may equitably divide, distribute or assign the marital property between the parties without regard to marital fault in proportions as the court deems just.

What is the identification of property?

First, the court is required to identify and classify all the parties’ property, based upon the evidence presented regarding the nature of the asset or debt. Identification is the assessment of whether husband, wife, or the marital entity has any claim of ownership to any type or item of property. Identification is the preliminary step in which the court determines the full extent of the parties’ interests in all property, and this step precedes the classification of such specifically identified property.

Who will divide our property?

If you and your spouse are able to agree about the division of your property, then your arrangement will be documented with a Marital Dissolution Agreement. If you are unable to agree, it will be necessary for you to go to court. The court will not decide your property distribution case for a period of time as the litigation process moves forward. During that time, the individual with possession of the property will have the use of that property unless the parties agree or a judge issues an order directing otherwise.

Is fault used in dividing marital property?

Fault is not relevant in an equitable distribution proceeding, except perhaps to the extent that marital misconduct has had an economic impact on the marital estate. Where the equitable distribution factors make it equitable for one spouse to receive more (or less) than 50% of the net marital estate, a court’s award would be unequal, that is, other than 50/50.

What factors are considered in dividing property?

Only property determined to be “marital property” is subject to division between the parties in a divorce.  In making an equitable division of marital property, the court shall consider all relevant factors including:

  1. The duration of the marriage;
  2. The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
  3. The tangible or intangible contribution by one party to the education, training or increased earning power of the other;
  4. The relative ability of each party for future acquisitions of capital assets and income;
  5. 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;
  6.  The value of the separate property of each party;
  7. The estate of each party at the time of the marriage;
  8. The economic circumstances of each party at the time the division of property is to become effective;
  9. 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;
  10. The amount of social security benefits available to each spouse; and
  11. Such other factors as are necessary to consider the equities between the parties.

Tenn. Code Ann. section 36-4-121

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