Family Law Advisor®
Frequently Asked Questions

Under no circumstances should this be considered legal advice, nor does it substitute for legal consultation. The responses to frequently asked questions are intended to be general statements. The correct answer to any legal question is: "It depends." Often there are exceptions to most law, especially issues concerning family law. Also, judges may interpret the law differently. The law changes over time. Anything written here could have changed between the time it was written and when it is read. Without exception, seriously consider consulting with a lawyer before you make any decision affecting your legal rights.

1. Who will divide our property?

   If you and your spouse are able to agree on how to divide your property, then the agreement will be documented with what is called a Marital Dissolution Agreement. If you are unable to agree, you will go to court, and the judge will decide and order an equitable distribution of your property.

2. What is an equitable distribution, and is Tennessee an equitable distribution state?

   Equitable means fair, just, and reasonable, based on the factors set out in the law. Yes, Tennessee is an equitable distribution state. While equitable does not mean equal, most judges will admit that they begin the trial at 50/50 and move one way or the other based on the evidence and arguments presented.

3. What factors does a court consider in deciding property division?

   • The duration of the marriage;

   • The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities, and financial needs of each of the parties;

   • The tangible or intangible contribution by one (1) party to the education, training, or increased earning power of the other party;

   • The relative ability of each party for future acquisitions of capital assets and income;

   • The contribution of each party to the acquisition, preservation, appreciation 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;

   • The value of the separate property of each party;

   • The estate of each party at the time of the marriage;

   • The economic circumstances of each party at the time the division of property is to become effective;

   • The tax consequences to each party; and

   • Such other factors as are necessary to consider the equities between the parties.

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

   No, if the parties agree to the divorce and settle the case without a trial, which is called an irreconcilable differences divorce.

5. Can I get more money if my spouse is at fault?

   Technically, no. Fault is only a factor for deciding alimony. As a practical reality, however, if a judge is presented with evidence of fault with respect to a request for alimony or attorney's fees, there is a common belief that the evidence ultimately could be persuasive.

6. Is it different in other states?

   Every state has different laws.

7. By the way, can my spouse share in my inheritance from my grandmother?

   Inheritance is separate property. There are things you can do to prevent inheritance from becoming marital property subject to equitable division. In order to protect your inheritance, see an attorney just in case -- especially if it is a large sum of money. 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. It is important to note, however, that the amount of separate property is a factor in dividing marital property.

8. 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 parties cannot agree on the value, the court will decide. The parties may testify and give an opinion. 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, and real estate. This can become relatively expensive, especially if both parties hire experts.

9. Once a divorce action is filed, can a spouse be restricted from dealing with marital property or his or her non-marital property?

   The right of a spouse to transfer, assign, or convey property is not restricted unless the spouse is specifically enjoined 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.

10. What are some examples of "dissipation" of assets?

    Spending money foolishly. Giving money away without benefit to the marital estate, such as buying jewelry for a paramour. Gambling excessively. Overly aggressive investing. Using money for an improper purpose. Courts do not look favorably upon such activities.

11. What is "marital property"?

    "Marital property" means:

    • all real and personal property;

    • both tangible and intangible;

    • acquired by either or both spouses during the course of the marriage;

    • valued as of a date as near as reasonably possible to the final divorce hearing date;

    • including 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 pension, retirement, or other fringe benefit rights accrued during the period of the marriage.

    "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 having jurisdiction thereof may determine.

12. What is considered "non-marital property"?

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

    • All real and personal property owned by a spouse before marriage;

    • 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 by means of another legal theory (ask your attorney); and

    • 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).

13. What is the process by which property and debt are distributed between the parties in a divorce trial?

    In very general terms, each party 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 is given to the spouse receiving that property. Finally, a spouse will usually receive the debt which that spouse incurred after separation.

14. If the spouses have not kept their non-marital property separate, but they have combined their ownership, 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 status and become marital property. This can cause difficult issues for the court. If separate property can be traced easily, 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 division as part of the equation and look to make an equitable distribution.

15. 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 contained therein could be subject to valuation and division in certain circumstances.

16. 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, appreciation could also be divided. These issues can be very complex.

-- Miles Mason, Esq., Crone & Mason, PLC