Property Division

It is critical you tell me all you know about all the assets. The more I know, the more I may be able to get for you. In Tennessee, a statute covers property division. (See Property Division Appendix for the exact wording of the statute.)

Property includes real estate and personal property (both tangible and intangible). Property can include houses, pensions, businesses, and coin collections – almost anything. The legislature has set out criteria for property division. First, you must find and value the property (equity in the house, value of pensions, value of antique furniture). Next, you must determine whether the particular piece of property is separate property and remains with the person who owned it. Separate property is usually acquired before the marriage or outside the marriage, such as by gift or inheritance. Marital property is usually acquired during the marriage. Marital property can include increases in separate property that occurs during the marriage if your spouse contributed to its appreciation or preservation even if only indirectly.

To determine who gets what marital property, the court will basically consider:

Length of marriage;

Age, health, skills, and abilities of the parties;

Contribution to the education or to the earning power of the other;

Relative ability of the parties to acquire property in the future;

Contribution to the value of the marital property or the separate property;

Amount of separate property owned by each spouse;

Premarital property;

Financial conditions of each party;

Tax consequences;

Social Security benefits;

Allowing the custodian and children to continue to live in the home permanently or for a period of time (most often until remarriage of the custodian or until the children turn eighteen); and

Other factors that the court considers appropriate.

If you and your spouse can agree on how things will be divided, and if your agreement is reasonable, it will usually be approved by the court. If you cannot agree, the court will divide the property, provided you can prove or get a stipulation to one of the grounds to divorce. If you cannot agree and prove or have a stipulation to at least one of the grounds, you cannot get divorced.

Do not hide assets. These assets are usually found; and if they are found, you will look like a crook to the court. The judge will have trouble believing what you say about anything after that, and the judge will have less trouble assessing attorney fees against you for your behavior.

Sometimes there are important tax issues to consider. Transfer of property (such as a bank account) from spouse to spouse during a divorce is usually not taxable, but transfer of income (for example, interest) from an asset can be taxable. Be careful about capital gains.

Under the right circumstances, the sale of a house by a couple can have an untaxed capital gain of Five Hundred Thousand ($500,000.00) Dollars or an individual seller can get half that. This may affect your decision to sell your home before the divorce (as a couple) or after the divorce (as an individual). See the taxes section below and talk to your tax advisor.

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