Angel Kane, Attorney
Marital & Separate Property
One of the most asked questions we hear is, what is considered marital property and what is considered separate property in Tennessee?
Most anything you and/or your spouse accumulated during the marriage is marital. It doesn’t matter whether or not you kept it in a separate account, didn’t put her name on the Deed or that his name is not on your Company 401k account. For the most part, if it was earned during the marriage (by either of you) – it is marital. And therefore, the Court can and will divide it.
Separate property is property that you owned prior to the marriage and that you kept it separate during the marriage. It is also property you inherited or were gifted during the marriage, that you kept separate.
“Kept separate” – means – you didn’t take your inherited money and put it into an account with both your names on it. Separate property will not usually be divided by the Court, although the Court can divide the appreciated value of the separate property, if your spouse can prove that they somehow contributed to the appreciation of the property.
There are many caveats when it comes to these definitions.
Pre-nuptial and Post-nuptial agreements can greatly affect what is considered marital or separate property.
Just because you took your separate property and allowed it to be converted into martial property by placing your spouse’s name on the account – doesn’t mean that you can’t convince the Court that it is separate property. This is where the law of “tracing” comes into play.
Just because the separate property appreciated – doesn’t necessarily mean – the appreciation will be considered marital.
The Court can consider the length of a marriage when it comes to the division of marital property and there is precedent, in short term marriages, that allows the Court to put parties back into the position they were in prior to the marriage.
And, when it comes to marital and separate property, there are many more case specific caveats. That is why it is so important to tell your attorney everything about your assets as well as debts.
Obviously, the division of the marital estate is one of the biggest aspects of divorce litigation. What is considered separate and what is considered marital can affect everything - from who will pay attorney fees, to whether alimony is necessary, to how the marital property will actually be divided.
The law in Tennessee is that the Court will equitably divide the marital estate.
Equitable does not always mean equal so once the Court determines what is actually marital property to be divided by the Court, the way in which the Court will divide it, will be different in different cases.