Durak Law Firm has years of experience representing clients in Franklin and protecting their interests in the face of legal negotiations as important as property division. If you are dealing with matters involving your personal and marital property, it is important to have a professional and rigorous attorney on your side to safeguard your interests. Durak Law Firm has achieved numerous victories in the courtroom for his clients and will do his best for you, too.
While settling a divorce, one important matter of negotiation will be how marital and non-marital property will be divided between the separating spouses. As with most divorce issues, spouses can decide between themselves on an agreement, documented in a Marital Dissolution Agreement. If the couple cannot reach an agreement, though, they will have to go to court, where the judge will order an equitable distribution of the property.
In the context of property distribution laws, equitable means a fair, just, and reasonable division of property. Note that this may not necessarily mean an equal 50/50 split of the property; if evidence suggests that a fair distribution requires one spouse to receive a larger amount, the judge can order such.
The primary factors a judge will consider when determining equitable distribution of property in a divorce are:
- the duration of the marriage;
- the age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities, and financial needs of each spouse;
- the tangible or intangible contribution by one spouse to the education, training, or increased earning power of the other;
- the relative ability of each party for future acquisitions of capital assets and income;
- the contribution each spouse has made to the acquisition, preservation, appreciation, or dissipation of the marital or separate property, including contributions as a homemaker, wage earner, or parent;
- the value of each spouse's separate property;
- the estate of each spouse at the time of the marriage;
- the economic circumstances of each spouse at the time the division of property is to become effective;
- the tax consequences for each spouse;
- the amount of Social Security benefits available to each spouse; and
- other relevant factors necessary to consider the equities between the spouses.
Note that Tennessee judges generally do not consider fault when deciding how to divide marital property, though fault may be considered in determining alimony.
Marital Vs. Non-Marital Property
It is important to distinguish between the property to be divided as marital property and non-marital, or separate, property, as only marital may be divided in the case of a divorce. Generally, marital property is property that belongs to the marriage, including all real and personal property acquired by either or both spouses during the marriage. Note that such property can be tangible (e.g., a car or home) or intangible (e.g., intellectual property, goodwill in a business). Marital property also includes vested pension and retirement benefits, which are subject to division to the extent that they were acquired during the marriage.
Non-marital or separate property, on the other hand, is property belonging only to one spouse. Separate property includes:
- all real and personal property owned by one spouse before marriage;
- property acquired by a spouse 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;
- damages received for a personal injury, such as pain and suffering awards, victim of crime compensation, and awards for future medical expenses and lost wages;
- property acquired by a spouse at any time by gift or descent (which can include gifts from one spouse to another); and
- property a spouse acquired after an order of legal separation where the court has made a final disposition of the property.
Be aware that, while the separate property itself may not be divided in a divorce, the amount of separate property is a factor in determining how a court may divide the marital property. For example, if a person keeps a hefty inheritance separate, it is possible that they may receive a smaller share of the marital property.
Note that it is possible for separate property to become marital property; spouses often commingle their marital and non-marital property, both knowingly and unknowingly. For example, if a person puts their inheritance in a joint bank account, the inheritance could become marital property because it has been commingled into a marital bank account. Similarly, contributing in some way to separate property during the marriage could also render it marital property, particularly if the property earns income for the marriage. Separate property commingled with marital property automatically loses its separate status and will become marital property up for division.
Contact Durak Law Firm With Questions
When it comes to property division in a divorce proceeding, it is best to consult an attorney to help you determine what marital or non-marital property may be up for equitable distribution. In most cases, each spouse will first be awarded their separate property then a share of the marital estate. Lastly, the debt will be divided.
Let Durak Law Firm walk you through your property division negotiations, whether you intend to discuss only with your spouse, in mediation, or in trial. Attorney Michal Durakiewicz will work compassionately and efficiently with you and ensure your property and spousal rights are being protected in the face of negotiation.