Identifying Marital & Separate Property

One of the most asked questions we are asked is, What is considered marital property? And What is considered separate property in Tennessee? Identifying marital and separate property is important in protecting your assets and finances.

Marital Property

Most anything you and/or your spouse accumulated during the marriage is marital. It doesn’t matter whether or not you kept it in a separate account. Or you didn’t put her name on the Deed, or his name is not on your Company 401k account. For the most part, if it was earned during the marriage (by either of you) – it is marital. And therefore, the Court can and will divide it.

Separate Property

Separate property is the property you owned before the marriage and kept separate during the marriage. It is also the property you inherited or were gifted during the marriage that you kept separate. Usually, separate property will not be divided by the Court. However, the Court can divide the appreciated value of the property. Provided your spouse can prove that they somehow contributed to the appreciation of the property.

There are many caveats when it comes to these definitions. Here are a few to be aware of;

What does “Kept Separate” mean? For example, if you didn’t take your inherited money and put it into an account with both of your names on it.

Pre-nuptial and Post-nuptial agreements can greatly affect what is considered marital or separate property.

For example, if you converted your separate property into marital property by placing your spouse’s name on the account. You may be able to convince the Court that it is separate property. This is where the law of “tracing” comes is important.   

Just because the separate property appreciated – doesn’t necessarily mean – the appreciation will be considered marital.  

Identifying marital and separate property may demand legal expertise.

The Court can consider the length of a marriage regarding the division of marital property. There is precedent in short-term marriages. Which is that the Court puts parties back into the position they were in before marriage.

And, when it comes to marital and separate property, there are many more case-specific caveats. That is why telling your attorney everything about your assets and debts is so important.

The division of the marital estate is one of the biggest aspects of divorce litigation. What is considered separate and what is considered marital can affect everything. Such as who will pay attorney fees, whether alimony is necessary, or how the marital property will be divided.

The law in Tennessee is that the Court will equitably divide the marital estate.

Equitable does not always mean equal. Therefore, once the Court determines what marital property is and how it will be divided is a first step. Then the Court will make the divisions. It will be different in different cases.

If you have questions about marital and separate property in Tennessee, contact us at https://www.kane-law.com/contact-us/