Division of Assets
August 26, 2023
Tennessee is called a “dual property” state because its family laws draw a distinction between marital property and separate property. Marital property is the type of property that has to be divided between the parties to a divorce. Separate property remains the property of one spouse, and that property is not subject to division during the divorce process.
This means that a trial court must classify all of the assets in a divorce as either marital property or separate property. Each party will receive its own separate property. Then, the trial judge also has the obligation to ensure that the marital property — the property of the marital estate — is divided equitably.
Marital property is all real and personal property that is considered part of the marital estate to be divided equitably by the court. It includes all such property acquired by either or both spouses during the marriage up to the date of the final divorce hearing. It can also include increases in value to the other party’s separate property in some cases.
A prime example of separate property is property acquired by a spouse at any time before or during the marriage by gift, bequest, devise, or descent. For example, property that a spouse inherits from a deceased relative’s estate is considered separate property. Another example of separate property is pain and suffering awards received by one spouse in a personal injury lawsuit involving only that party. Yet another example is real property owned by a spouse before marriage. Separate properties include monies in an individual retirement account (IRA) or other retirement account prior to a party’s marriage. That property is generally considered to be separate property and not subject to division during the divorce process.
Separate property can become marital property through the process of either commingling or transmutation. Commingling is the process by which separate property becomes inextricably mingled or mixed with marital property – or the separate property of the other spouse – such that the separate property becomes marital property.
Transmutation occurs when the originally separate property is treated in such a way as to evince clear evidence that the property is intended to be treated as marital property. For example, real property can be transmuted in the following ways: (1) if the property is used as a martial residence; (2) if the ongoing maintenance and management of the real property is done by both parties to the marriage; (3) if the title to the property is placed in joint ownership; and (4) if the parties use the credit of the non-owning spouse to improve the property.
No, Tennessee law requires that the division of assets should be equitable, but not necessarily equal. The Tennessee courts have recognized that the division of assets is not a mechanical process. A court generally must weigh the most relevant factors in light of the unique facts of the case. Relevant factors can include how long the parties were married, the contributions each party made financially, and the actions of the parties during the duration of the marriage.
In order to protect your interests and the division of assets during the divorce process, you need an experienced family law attorney to advocate your cause and interests. Tiffany Hagar of the law firm Hagar & Phillips is just such an experienced family law attorney.
For reliable legal counsel in Lebanon, TN, and surrounding middle Tennessee counties, look no further than Hagar & Phillips, specialists in asset services. Whether handling divorce proceedings or discussing the division of assets, our experienced attorneys are here to help. Reach out to us at https://hplawtn.com/contact/ to schedule a consultation today!
Hagar & Phillips, Attorneys at Law (H&P) is a law firm with over 40 years of experience serving the city of Lebanon, Wilson County, and surrounding counties. The attorneys in Lebanon, TN, focus on exceeding clients’ expectations. Practice areas include Family Law, Criminal Defense, Healthcare Law, Estates, Adoption, Mediation, and Civil Litigation.
