Division of Property
When couples decide to end their marriage, agreements regarding what happens next are sometimes hard to come by. When a couple has acquired property during a marriage, determining an equitable distribution of those assets can become contentious. The divorce attorneys at MHPS Law help clients in and around Nashville with the process of division of property. We are dedicated to helping our clients pursue the proper allocation of assets, determine their property’s worth, and gather the information that will be used by courts in making distribution decisions.
Our firm handles all issues of family law professionally and efficiently. If you need assistance in dividing property or any other divorce matter, contact our office today to find out more about how we can help.
Types of Marital Property
When a couple gets married, an economic unit is created in which the spouses’ incomes and assets are usually commingled. Before a divorce is granted, a court has to approve all asset and debt divisions. The main goal in the division of property is to make sure an equitable or fair distribution is reached. Most property acquired during a marriage is considered a marital asset, regardless of whose name is attached.
Property that is considered to be separately owned by one spouse under Tennessee law, and therefore not subject to equitable distribution, includes property owned by one spouse before marriage, as well as gifts and inheritances. Types of marital property that must be distributed during the course of divorce include homes or other real estate holdings, savings accounts, retirement accounts, and small or family business ownership interests.
Under Tennessee law, separate property may also become marital property if both spouses substantially contribute to its preservation or appreciation. Commingling of separate property that would make it marital occurs when the property is inextricably mingled with either marital assets or the separate property of the other spouse. Transmutation may also occur where separate property is treated with the appearance of an intention that it becomes marital property. The Tennessee Supreme Court explains that transmutation and commingling can be complex and do not occur in every divorce. But if it has happened in your divorce, you need a trusted attorney who can ensure your assets are divided accordingly.
Division of Property in Tennessee
An equitable division of assets is not necessarily an equal division. Rather, the courts in Tennessee base their decisions on several factors when dividing property to make sure the distribution is fair. The factors considered in making this determination include:
- Each spouse’s age
- The duration of the marriage
- Mental and physical health of both spouses
- Contributions either spouse has made to the property
- Each spouse’s earning capacity, vocational skills, and employability
- The value of any separate property
- The current economic status of both spouses
- The court will consider any contribution by a spouse to the education, training, or increased earning power of the other spouse. A knowledgeable attorney can help you evaluate the nuances of your situation and plan for your financial future following a divorce.
Division of Debt
Just like property must be divided, so must debts. In Tennessee, debts are divided simply by marital debts–not those incurred before or after the marriage. Marital debts are those incurred by both spouses during the length of the marriage. However, the courts will try to assign the debt to the spouse who receives the asset it belongs to.
As a result of Alford v. Alford, 120 S.W.3d 811, 814 (Tenn. 2003), Tennessee courts use four factors to allocate and divide marital debts:
- The purpose of the debt
- Who incurred the debt
- Who benefited from the debt
- Who is best able to repay the debt
It is important to note that in jointly incurred debts, even if one party agrees to pay the debt, the other party can still be found responsible for the debt should the other not repay. Under Tennessee law, all divorces must contain a “Notice on Liability to Creditors” clause where each party acknowledges that he or she knows that the divorce decree does not impact the ability of the creditor to proceed against him or her.
However, if you believe that a debt was not jointly incurred, yet it appears on your credit report, you may need to take action.
Our Nashville Divorce Attorneys Can Help
When determining the division of property during a divorce, many factors and elements must be carefully considered. The family law attorneys at MHPS Law can help examine what needs to be done, what type of property is involved, and other issues that may arise in asset distribution.
Our firm represents clients in West Meade, Charlotte, and throughout Davidson and Williamson Counties with their divorce and other family law matters. Please contact our Nashville property division attorneys today to see how we may assist you.