Tennessee: Division of Property in Divorce FAQ

If you are getting a divorce in Tennessee, you'll need to know what property belongs to your marriage and how that property will be divided between you and your spouse. If you can reach an agreement with your spouse, you can divvy things up as you see fit. If not, the judge will determine what property each of you gets to keep, based on a list of factors described below. For more information on property division and

This article provides answers to common questions about how Tennessee law divides a couple's property when they divorce. For more information on Tennessee divorce law, see Divorce Basics in Tennessee. For all of our articles on allocating property in a divorce -- including information on what happens to the family home and how your taxes will be affected by your property settlement -- see our Divorce and Property section.

Who will divide our property?

If you and your spouse are able to agree on how to divide your property, then you can make the decisions. In this situation, your agreement will be documented in what is called a Marital Dissolution Agreement. If you are unable to agree, you will have to go to court, where the judge will order an equitable distribution of your property.

What is an equitable distribution?

Equitable means fair, just, and reasonable, based on the factors set out in the law. While equitable does not mean equal, most judges will admit that they begin the process assuming that the property will be divided equally. If the evidence suggests that a fair distribution requires one spouse to receive a larger share, the judge can order it.

What factors does a court consider in dividing the couple's property?

In deciding how to divide the property, a judge will look at:

• the duration of the marriage
• the age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities, and financial needs of each spouse
• the tangible or intangible contribution by one spouse to the education, training, or increased earning power of the other
• the relative ability of each party for future acquisitions of capital assets and income
• the contribution each spouse has made to the acquisition, preservation, appreciation, or dissipation of the marital or separate property, including the contribution of a spouse to the marriage as homemaker, wage earner, or parent, with the contribution of a homemaker and wage earner to be given the same weight if each spouse has fulfilled his or her role
• the value of each spouse's separate property
• the estate of each spouse at the time of the marriage
• the economic circumstances of each spouse at the time the division of property is to become effective
• the tax consequences to each spouse
• the amount of Social Security benefits available to each spouse, and
• such other factors as are necessary to consider the equities between the parties.

Does one spouse have to be at fault to get a divorce?

No. Tennessee recognizes both fault and no-fault grounds for divorce (such as irreconcilable differences).

Can I get more property if my spouse is at fault?

Legally, Tennessee judges are not supposed to consider fault in deciding how to divide marital property (although fault may be considered in determining alimony).

Is my spouse entitled to a share of my inheritance?

Inheritance is separate property, which means it belongs only to the inheriting spouse. However, you must take care not to treat it as marital property owned by both spouses. There are things you can do to prevent an inheritance from being treated as marital property subject to equitable division. For example, do not commingle the money by putting it in a joint bank account. Do not spend the money on your house if your house is owned jointly. Especially if you've inherited a large amount of money, you should talk to a lawyer to make sure you protect your rights.

It is important to note, however, that the amount of separate property is a factor in dividing marital property. So, if you take pains to keep your inheritance separate, it may mean that you receive a smaller share of the marital property when you divorce.

How does the court determine the value of a marital asset?

Some types of property have a readily ascertainable value, such as a bank account or publicly traded stock. For other assets, if the spouses cannot agree on the value, the court will decide. The spouses may testify and give their opinions about what property is worth. For some assets, however, the most persuasive proof might be provided by an appraiser or other qualified expert. The most common examples of property that might require professional testimony include businesses, pensions, jewelry, artwork, and real estate. This can become relatively expensive, especially if both parties hire experts.

Once a divorce action is filed, are there restrictions on what a spouse can do with marital or separate property?

The right of a spouse to transfer, assign, or convey property is not restricted unless the spouse is specifically enjoined (forbidden) by a court from doing so. If one party is concerned that the other party will give away, hide, or foolishly spend money, the party may ask the court to enjoin certain spending activities to prevent dissipation and preserve the assets.

What are some examples of "dissipation" of assets?

Dissipation essentially means waste. Examples of dissipation of assets including spending money foolishly, excessive gambling, overly aggressive investing, or using money for an improper purpose. It also includes giving money away without benefit to the marital estate, such as by buying jewelry for a paramour. Courts do not look favorably upon such activities.

What is "marital property"?

Marital property refers to property that belongs to the marriage, as opposed to separate property, which is separately owned by one spouse or the other. Marital property includes all real and personal property, whether tangible or intangible, acquired by either or both spouses during the course of the marriage. (Tangible property is property that can be physically touched, such as a car or home; intangible property includes intellectual property, goodwill in a business, and similar types of assets.)

Marital property also includes income from, and any increase in value of, separate property if each spouse substantially contributed to its preservation and appreciation. "Substantial contribution" may include, but is not limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent, or family financial manager, together with such other factors as the court may decide to consider.

Marital property also includes the value of vested pension, retirement, or other fringe benefit rights accrued during the period of the marriage.

What is considered "non-marital property"?

Tennessee calls this separate property. "Separate property" includes:

• all real and personal property owned by one spouse before marriage
• property acquired by a spouse 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 by means of another legal theory (ask your attorney how this works)
• pain and suffering awards, victim of crime compensation awards, and awards for future medical expenses and future lost wages
• property acquired by a spouse at any time by gift, bequest, devise, or descent (which can include gifts from one spouse to another, such as jewelry or a car), and
• property a spouse acquires after an order of legal separation where the court has made a final disposition of the property.

What is the process by which property and debt are distributed?

In very general terms, each spouse is first awarded his or her separate property. Then the marital estate is divided according to the factors listed above. Finally, the debt is divided. Debt secured by specific property usually goes to the spouse who receives that property. Finally, a spouse will usually receive responsibility for any debts that spouse incurred after separation.

If the spouses have combined their separate and marital property, how does the court decide on property division?

Spouses often commingle their marital and non-marital property. If separate property becomes commingled, it may lose its separate status and become marital property. This can cause difficult issues for the court. If property can be traced easily to its original separate source, the court is more likely to award it to the original spouse. If it cannot be easily traced, the court is less likely to award it as separate property. Even if a court finds the property was once separate but became marital property, the court will consider other property as part of the equation and look to make an equitable distribution.

Is a professional license or degree an asset subject to valuation and division?

No. The license or degree itself cannot be divided. The professional practice or certain assets of such a practice could be subject to valuation and division in certain circumstances, however.

What about retirement accounts, pensions, and other deferred compensation?

Retirement benefits can be considered marital property and subject to division by the court to the extent that they were acquired during the marriage. In certain circumstances, the appreciation of those assets could also be divided. These issues can be very complex.