Property Division--What Is Equitable Division?

Everyone talks about dividing up property during a divorce; very few people talk about dividing up debts incurred during a marriage. Fortunate, or unfortunately, depending on which side you are on, property division includes the division of debts, and the Court is required to make an equitable division of all marital property and all marital debt. Equitable does not necessarily mean equal! Only an experienced divorce attorney can walk you through the minefield of property division to ensure that you get the best treatment under the law. Equitable distribution is made WITHOUT regard to fault!

Property is either classified as "marital" or "separate" property. "Martial property" is all real estate and personal property acquired by either or both spouses during the marriage. "Marital property" includes income from and increase to "separate property" if each spouse substantially contributed to its preservation or appreciation. "Marital property" also includes recovery in personal injury/workers compensation matters to the extent that marital funds were utilized for payment of medical expenses or for lost wages because of the injury. "separate property," on the other hand, includes all real estate and personal property owned by a spouse before the marriage and property that was exchanged for property owned prior to the marriage. "separate property" also includes inheritances and gifts if to only one spouse. Also, pain and suffering awards in personal injury/workers compensation actions are "separate property".

Generally speaking, each spouse keeps his/her own "separate property", then the "marital property" is divided equitably. There are statutory criteria for equitable distribution of "marital property" under Tennessee law. In making equitable division of marital property, the court shall consider all relevant factors including:

1. The duration of the marriage;
2. The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
3. The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
4. The relative ability of each party for future acquisitions of capital assets and income;
5. The contribution of each party to the acquisition, preservation, appreciation, depreciation 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;
6. The value of the separate property of each party;
7. The estate of each party at the time of the marriage;
8. The economic circumstances of each party at the time the division of property is to become effective;
9. The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
10. The amount of social security benefits available to each spouse; and
11. Such other factors as are necessary to consider the equities between the parties.

Although "equitable" does not mean "equal," where both parties contribute to the acquisition of marital property, the Courts generally strive to make an equal division of marital property and martial debts. Only an experienced divorce attorney can counsel and guide you regarding the weight the Judge will apply to each of the factors above. Furthermore, a party that has not contributed to the marital estate, but has rather, through her actions, depleted the marital estate, can presume that equitable does NOT mean equal. For instance, a spouse who is addicted to narcotics, does not work outside the home, and has incurred repeated medical bills for rehab will not likely receive fifty percent (50%) of the marital assets as his share.

Marital debt are divided as discussed above. All debt incurred during the marriage is marital debt. Courts generally divide marital debt by looking at which spouse incurred the debt, the purpose of the debt, which party or both benefited from the debt, and which party is in a better position to pay the debt. The unwritten rule is that the party who receives an asset with an attached debt gets the debt, i.e. the spouse who receives the big screen LED TV will also have to pay the credit card associated with the purchase of that item.

It is important to make a list of all property, label it as marital or separate, and assign a value to the property when talking to your divorce lawyer.

Turner Law Offices, P.C. has over 19 years of experience helping our client's with alimony issues. The case law in Tennessee is extremely complicated and fact specific. There are literally thousands of cases in Tennessee dealing with alimony; only our experienced attorneys can help you to competently migrate through the alimony maze.