If you and your soon-to-be ex-spouse are able to reach an agreement regarding property division, you will typically set forth the terms of this division in a Marital Dissolution Agreement (MDA), which you will then file with the court. Many couples are able to accomplish this through negotiation, divorce mediation or other forms of dispute resolution.
However, if the two of you simply cannot agree, the court will have to step in and make the decision for you. If you decide to go this route, it is important to know what property is subject to division and how the court may divide it.
Marital Property Vs. Separate Property
During a Tennessee divorce, a court can only divide marital property. In the most basic terms, marital property includes all assets and property you and your spouse have accumulated during marriage, including businesses, homes, cars and retirement accounts. Even debt is subject to division if it was accumulated while you and your spouse were married.
Conversely, separate property is not subject to division, and typically remains with the spouse who originally owned it. Common forms of separate property include all assets and property owned by either spouse before marriage as well as gifts and inheritances, among others.
Understanding Equitable Distribution
Once all marital property has been identified, the court will divide it equitably ― meaning it will split the assets fairly and reasonably, not necessarily 50-50. While the court has discretion in determining what it considers equitable, there are several factors it will examine, including:
- The length of the marriage
- The ages, as well as the mental and physical conditions, of you and your spouse
- The financial liabilities and needs of you and your spouse, as well as your respective skills and earning capacities
- The contributions each of you had on the acquisition, preservation or depreciation of both marital and separate property, including contributions as a wage earner or homemaker
- The contributions of either spouse to the education or training of the other
- The value of the separate property owned by either you or your spouse
- The economic and financial circumstances of you and your spouse when the division becomes effective
- The tax consequences of the division
Even though there are a few additional factors a court may consider, it is important to note that FAULT is not among them. In fact, fault does not come into play when dividing property.
Seek Experienced, Knowledgeable Legal Guidance Today
Given the complex nature of property division during divorce, you need the help of a lawyer who focuses exclusively on family law ― you need the Thomas Family Law Firm, PLC.
If you would like to speak to one of our attorneys, call us at 901-537-0010 or email us online. From our office in Germantown, we represent clients throughout Memphis and North Mississippi.