When a married couple is contemplating the necessity of divorce, they will likely have many questions about the process. Whether the divorce is amicable or not, the Tennessee courts will have a significant role to play in many issues. One of the primary issues is how the couple’s property and assets will be divided between them.
What is equitable?
Equitable distribution is the guiding principle behind how a court divides property during the divorce process. The court’s goal is to divide the property fairly, considering the needs and contributions of both parties. This does not, however, mean that the court will always divide the property equally.
Tennessee law lists many factors the court should consider when making an equitable distribution. The factors include, but are not limited to, what each party brought into the marriage when it began and how long the marriage lasted. Also considered is the age, earning capacity and financial needs of the parties. If one party is given physical custody of children, this can have a strong impact on whether the family home is awarded to that party. There are many other factors listed in the statute governing equitable distribution, and the court can go beyond the statute to consider anything else it deems necessary.
Marital property versus separate property
The court will classify all property and assets as either marital property or separate property. Generally, property which was acquired during the marriage is considered marital property and subject to equitable distribution. Conversely, separate property is that which the individual spouse owned prior to the marriage or acquired during the marriage as a gift or inheritance. Normally, separate property remains with the spouse who owns it.
Whether specific property or assets is marital or separate can be one the most complex issues in property distribution. What may appear to be separate property at first glance can ultimately be judged marital property, based upon how the property was used throughout the marriage.