The judge in a contested divorce case has the task of dividing marital property and debt equitably between the parties. However, before the division can take place, the court must distinguish marital property from separate property. Marital property is all real and personal property acquired from the date of marriage up to the date of divorce. Separate property is property acquired by a spouse before marriage or acquired by gift or inheritance during the marriage. Separate property is not subject to division in a divorce. However, if separate property is handled like marital property, it is possible the court will rule all or part of it has been commuted to marital property and become subject to division. An experienced divorce attorney will be well versed on property division issues. If there are significant assets, it is in your best interest to retain a lawyer who will work to protect your separate property and get a fair division of the marital property.
Equitable Division
An equitable division of marital property is not necessarily an equal division. There is no set formula for the division. It will vary depending on the circumstances of each case. Factors that may be important include length of the marriage, the parties respective contributions to a particular asset, the likely post-divorce financial position of the parties, assistance in increasing the earning power of the other spouse, concealment of marital assets or inequitable dissipation of those assets. One factor the court is not supposed to consider is a party's fault in causing the end of the marriage.
Your divorce lawyer will help you put together a complete listing of the marital property, including marital property that may not be obvious to most persons. Tennessee law includes income and increased value from separate property as marital property if each spouse has substantially contributed to its preservation and appreciation. This potentially brings into the equitable division property like retirement accounts opened before the marriage that had substantial contributions made during the marriage and real estate acquired before marriage that has been improved during the marriage.
Valuation
Another potential area of disagreement in a divorce property division is the value attributed to marital property. Current appraisals will be necessary on any significant marital assets, most notably the marital home. Widely available market information will likely limit appraisals of the marital home to a fairly narrow range. However, valuation of other tangible and intangible assets can be much more complicated. For example, valuing the assets, accounts and goodwill of a business can lead to very different opinions. Intangible assets like stock options, rights to purchase, royalties and intellectual property rights can be very valuable and, thus, a contentious matter in a divorce. The lawyer assisting you with property division in your divorce will help present your position on value effectively to the court. These issues will likely also require the help of expert witnesses skilled in calculating property values.
