First, Tennessee is a “dual property” state meaning that the law recognizes both marital property and separate property. When a married couple seeks a divorce, the “marital property” must be divided equitably between them. An important note in this division is that fault of the divorce is not a factor in the division of the property. “Separate property” is not part of the marital estate and is not subject to division in a divorce.
“Marital property” means all real and personal property, acquired by either or both spouses during the marriage up to the date of the final divorce hearing and owned by either as of the date of the filing of a divorce complaint. “Separate property” means all real and personal property owned by a spouse before marriage, property acquired in exchange for property acquired before the marriage, property acquired by a spouse at any time by gift or inheritance, and pain and suffering awards.
In determining whether a home previously owned separately by one spouse has become marital property, Tennessee uses the following considerations:
- The use of the property as a marital residence.
- The ongoing maintenance and management of the property by both parties.
- Placing the title to the property in joint ownership.
- Using the credit of the non-owner spouse to improve the property.
Another important consideration discussed in case law is the intent of the parties. Courts will look at whether the mortgage or bills were paid from a joint bank account. Whether the parties both participated in maintenance on the home and if that maintenance was paid from a joint bank account. The doctrine of transmutation is what the courts describe this process of moving from separate property to marital property.
Every case and fact sets are different. Best to consult an attorney with experience in this area.
Cartwright Law, LLC