Unlike states where all property acquired by a couple during marriage is divided equally, in Tennessee the rule is that property and debt acquired during a marriage will be divided equitably.

    Exactly how does that differ from a 50-50 split?  Sometimes not at all.... sometimes a great deal.  While the trial courts have considerable latitude id deciding just what is "equitable" or fair, there are guidelines, set out by statute in TCA 36-4-121.

    Marital property includes personal possessions, real property, money, and in some cases even the value of a professional reputation.  If you and your spouse can't agree in writing on how to divide you property, the court will divide it for you.... and you may well both end up unhappy with the judge's decision.

    Marital debt is debt (bills) acquired during the marriage, even if only in the name of one of you, if it came during the marriage, it generally is marital debt that needs to be addressed in the divorce.  Student loans before the marriage are going to be individual or separate debt.  If the education and loans continued after the marriage, that debt would be marital debt.  Money owed on a fishing boat bought by one spouse for fishing, even if bought over the objection of the other spouse who hates fishing, will still be marital debt.

    To decide how to divide property and debt in a divorce, the court will generally want you and your spouse to first identify what property and debt is "marital property" and "marital debt," and what property is "separate property" and "separate debt."  ("Marital property" is all the property the two of you acquired during the marriage, and in some circumstances will even included any increased value of property one party owned individually before the marriage, but this generally only happens when the increased value is a result of management efforts made during the course of the marriage.  "Separate property" is property acquired before the marriage and in which the other spouse has no legal interest.)  After the property is identified as marital or separate, the court "equitably" divides the  marital property.... of course, the two of you are not likely to agree on what is "separate property" and what is "marital property" (or debt).

    Still, before dividing the marital estate, the trial court must first classify the parties' property as either marital or separate property because only marital property is subject to the trial court's powers of equitable distribution. Dunlap v. Dunlap, 996 S.W.2d 803, 814- 815 (Tenn. Ct. App. 1998) citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App.1995); Brown v. Brown, 913 S.W.2d 163, 166 (Tenn. Ct. App.1994).  In classifying the parties' property as either marital or separate, the trial court is vested with wide discretion, and its decision is entitled to great weight on appeal. Harris v. Corley, No. 01A01-9011-CH-00415, 1991 WL 66447, (Tenn. Ct. App. May 1, 1991) citing Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.1983); Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App.1973).

     After characterizing the parties' assets as either marital or separate property, the court will make an equitable division of marital assets.  An equitable division of property does not necessarily mean an equal division. Bookout v. Bookout, 954 S.W.2d 730 (Tenn. Ct. App. 1997); Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988).  "The division of the estate is not rendered inequitable simply because it is not mathematically equal, or because each party did not receive a share of every item of marital property." King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) citing Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.1996);  Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn.1988); Brown v. Brown, 913 S.W.2d 163.  In determining what constitutes an equitable division of marital assets, the court will consider the factors listed in Tenn. Code Ann. §36-4-121(c).

    A spouse's separate property includes property acquired "at any time by gift, bequest, devise or descent."  See  Tenn. Code Ann. § 36-4-121(b)(2)(D).  Accordingly, if the spouse can show that the property was a gift, the gift is his or her separate property, regardless of when it was acquired.  The burden of proving that a gift was made is upon the donee or the party asserting the gift. Hansel v. Hansel, 939 S.W.2d 110, 112 (Tenn. Ct. App.1996);

    But none of this still defines "fair."  And there is no was to be sure what a judge is going to do before the decision is announced, but for most judges the concept of "equitable division" seemingly begins with the the idea that "equal" is fair.  The courts are even prohibited from considering who is at fault in the divorce in the division of property.

    The factors the courts are to consider are as follow:

(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 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;  and
(10) Such other factors as are necessary to consider the equities between the parties.

    A court can order the sale of marital property, and that the money from the sale is divided as the Court considers fair. This often happens.  In some cases the Court can even order one of the parties to sell separate property to divide it.

    And example of a distribution that is not equal, but that is "equitable" would be a case where one spouse worked and the other refused to work, did not help around the house, did not contribute by raising any children, and wasted money away on drugs and lovers.  Under those circumstances I would expect a court to give the spouse who worked and built the marital estate to clearly get the lion's share or it.... but that still might only mean a 70-30 split.  Or the marital estate may be principally a business that one party operates, such as a law practice or a dental office, and in that case the Court might refuse to divide the business at all, awarding it entirely to the party operating the business, and then also ordering that spouse to pay an amount equal to half of the value of the business, or the court might order the spouse getting the business to sell certain separate property to give the proceeds to the spouse not getting the business.... this in order to "even things up."  Each case is different, and the court will base its decision  on the wishes and needs of those persons involved.

    In general, the Court will consider the entire situation of both parties in a divorce, and will try to divide the property as fairly as possible based on all the facts and circumstances.  The interests and needs of any minor children often play a major role in the Court's division of marital property: the parent getting custody of the children will generally be allowed to stay in the marital home, particularly if the children lived there for an extended period, provided that party can afford the payments.  Sometimes such decisions will also order that the property is sold when the youngest child reaches eighteen, with the other parent getting his or her share of any equity at the time of sale.

    How the Court divides the responsibility for marital debt also plays a large role in how the Court will divide any marital assets.  (One thing to keep in mind is that even if the Judge is very clear about wanting your spouse to pay certain bills that the two of you got together, the Court's Order has no effect whatsoever on any legal obligation between yourself and the other business or individual.  In other words, while it may be that your spouse is supposed to pay a bill, and if he or she doesn't you can take your spouse back to court over the matter to try to force them to pay it.... but the creditor the two of you owed the money in the first place was never a part of the divorce and did not lose their right to come after you to collect the on the debt.)

    Tennessee courts are allowed to consider fault in awarding alimony, but it is only one of several factors.

    For more on the factors the Court can consider in awarding alimony, click here.

Click here to e-mail questions, suggestions or corrections regarding this page.

                                           Disclosure on Non-Representation Link
                                           Disclosures on Certification of Specialization Link