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How are assets divided in a divorce?

Posted by James Judkins | Mar 10, 2021 | 0 Comments

So you are considering or going through a divorce.  In the absence of an agreement, before a court determines how it will divide the assets of the marriage it must first determine what is marital property and what is separate property.

In a general overview, separate property is any property owned by the spouse before marriage. Additionally it is property acquired in exchange for property that was acquired prior to the marriage. It is also property acquired by a spouse at any time by gift, or through inheritance. Marital property is just the opposite. It is any property acquired during the marriage, any income from separate property or increase in value of separate property during the marriage whereby the other party to the marriage has 'substantially contributed' to it's preservation and appreciation. In some circumstances separate property can become marital property by the doctrine of 'transmutation.' That is not addressed herein. The court hears the testimony from the witness stand, it will classify separate and marital property and then make an equitable division of assets. 

Tennessee is not a community property state meaning the court must make an equitable division of the marital assets. An equitable division is not limited to an equal distribution of property between the spouses. In making an equitable distribution the court must consider many factors including but not limited to the length of the marriage, the health, skills, earning capacity, and needs of both parties, including the tangible or intangible contribution by one party to the education, training, increased earning power of the other party. The court also views one person's contribution to the marriage, financially or otherwise, and whether one individual has been wasteful of the assets. The court also looks at any tax consequences of either party, social security benefits, and a parties economic circumstances. The court will also look at the value of the separate property of each party. This includes the estate of the party at the time of marriage, economic circumstances at time of division of property, tax consequences, and any other factor needed to consider the equities between the parties. Unlike some other states, Judges in Tennessee are forbidden to use fault (such as adultery, or abusive behavior) as a factor in the division of the marital estate. These are the required rules made by the General Assembly by which the divorce court follows. The court then makes it's 'equitable division.'

If you have questions about the division of marital property or classification of property call us. We have successfully represented numerous individuals in divorce law and family law. 

About me

I am James M. 'Jim' Judkins and for over a decade family law has been a very large part of my practice. I enjoy helping people. Located in the heart of Murfreesboro and in Smithville, Tennessee, I represent clients in family law situations all throughout Tennessee. Helping people successfully through the some of the most turbulent times of their lives gives me a great sense of accomplishment.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from James M. Judkins, attorney or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient's state, country or other appropriate licensing jurisdiction.

About the Author

James Judkins

About James M. “Jim” Judkins, Attorney at Law Professionalism and Dedication are the hallmarks of my life. Mr. Judkins always wanted to be a litigation attorney. He considers the practice of law his purpose in life and he holds himself to a very high professional and ethical standard. Mr. Judki...


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