Key Takeaways
- Tennessee is an equitable distribution state.
- Equitable does not necessarily mean “equal.”
- Separate property is not subject to equitable distribution under Tennessee law.
- At least a portion of retirement accounts are considered marital property as long as you contributed to them during the marriage.
- A prenuptial agreement helps keep separate property separate.
- Commingled or transmuted separate property becomes marital property and is subject to Tennessee’s equitable distribution laws.
- Because it is easy to commingle or transmute property, you should see a family law attorney about a prenuptial agreement prior to getting married.
Is Tennessee a community property state? During a divorce, many people believe that the division of assets is “50/50.” Tennesee is an equitable distribution state, meaning that while it might start as half, Tennessee law considers several factors, including income and future earning capacity—when dividing property. Equitable may mean, in some cases, one spouse receives a higher percentage of the property than the other. An experienced divorce law attorney at Cordell & Cordell can help negotiate fair and equitable property division and, if necessary, represent your rights during litigation.
Community Property vs. Equitable Distribution
As of 2024, only nine states are community property states:
- Arizona
- California
- Idaho
- Louisiana
- Nevada
- New Mexico
- Texas
- Washington
- Wisconsin
These states generally divide marital property equally between the married couple going through a divorce. The other states are known as “equitable distribution” states. That is, the laws require a fair and equitable – not necessarily equal – distribution of marital property.
How Property is Divided in a Tennessee Divorce
Tennessee laws factor in your current income, separate property, and future earning capacity to determine an equitable distribution of assets and liabilities. For example, if the husband earns 40 percent of the income and the wife earns 60 percent of the income, neither party has separate property, and both parties are expected to stay in the same financial position—the husband would receive 60 percent of the marital assets, while the wife would receive 40.
However, this is not set in stone. If the parties can agree on property distribution, they might also agree to split the property 50/50, or the husband might give the wife a higher percentage for the benefit of the minor children if she agrees to primary custody. This situation can also work in reverse.
In most circumstances, it is better for the spouses to work out a property settlement between themselves. One drawback of property distribution, whether under community property laws or equitable distribution laws, is that the parties may not be allowed to keep the property they wish. For example, a husband may wish to retain his retirement account, in that case, he may be able to “trade” another asset of equal value with the wife.
Why Property Division Matters
Property division can affect a spouse’s financial future after divorce, especially in long-term marriages where the married couple has accumulated significant assets. Before the division of marital property, the spouses must determine the types of property they possess. Certain property in Tennessee is separate property. However, separate property can be commingled or transmuted to become marital property subject to equitable division.
Separate property includes:
- Any property owned prior to the marriage
- Property exchanged for separate property, even after marriage, so long as the separate property is not commingled or transmuted
- Profits or appreciation from separate property
- Damages awarded in a civil lawsuit in your name only
- Gifts
- Inheritances
Any of these could become marital property if you commingle them or transmute them – that is, you used marital funds for their upkeep, or you treated the property as marital property. If there is a question of whether property was commingled, financial advisors and forensic accountants can determine whether separate property became marital property.
Why Work with Cordell & Cordell
Property division can come with all sorts of unexpected pitfalls. The experienced divorce lawyers of Cordell & Cordell can use their knowledge to guide you through a fair and reasonable property settlement.
Client Experience
“My attorney is a standout. He is responsive and attentive. He was good at giving input and feedback. When it comes to men’s divorces, My attorney knows what he is doing and brought his experience to the table.” — Dolphus D.
“I felt protected and secure with my attorney. She earned my confidence and that is really hard to do. I feel everything went well.” — Jeffrey S.
“She was amazing. Everything was all around great. The communication by my attorney was fantastic. You guys are top tier.” — Chase P.
Contact Us for Help with Your Tennessee Property Division
Blended families have become more common, which could mean the new spouse may receive a portion of the property you were awarded in your first divorce—in the event of a divorce. It’s becoming more common to get married later in life, which means you could have a significant amount of separate property. If you have a significant amount of separate property, you might consider drafting a prenuptial agreement to protect that property if you are considering marriage.
Cordell & Cordell is a national family law firm that guides individuals through a range of family law issues. Contact our team today at 866-323-7529 or fill out our online contact form to schedule an initial consultation.
Disclaimer: This page serves as a resource and is not to be taken as legal advice.
Frequently Asked Questions
Yes. While it is an assumption that a house you purchased prior to your marriage remains a separate property, it could become subject to equitable distribution if you treated it like marital property or marital funds and resources were used for the maintenance and upkeep of the property—or mortgage payments on the property.
If you have investment property belonging to your investment company that uses only funds from the investment company for the home, it will remain a separate property—but only if the business is set up properly. If the business is a sole proprietorship, you could still lose part of your interest in the house to equitable distribution. To keep the property separate, you can sign a prenuptial or postnuptial agreement.
No. If separate property remains separate – it is not commingled or transmuted – it remains separate property and is not divided during a divorce. However, Tennessee courts consider your separate property, along with other factors, when determining fair and reasonable marital property division in divorce cases.
A spouse receiving an inheritance keeps that inheritance as the spouse’s separate property. However, if the property was treated as marital property or commingled with marital property, it can become subject to equitable distribution. For example, if you receive $100,000 in cash from the estate of your great-aunt and deposit it in a joint bank account, it becomes marital property.
Written by Joseph E. Cordell
Joseph E. Cordell is the Principal Partner at Cordell and Cordell, P.C., which he founded in 1990 with his wife, Yvonne. Over the past 25 years, the firm has grown to include more than 100 offices in 30 states, as well as internationally in the United Kingdom. Mr. Cordell is licensed to practice in the states of Illinois and Missouri and received his LL.M. from Washington University in St. Louis, Missouri. Joseph E. Cordell was named one of the Top 10 Best Family Law Attorneys for Client Satisfaction in Missouri.
