Hard-Working Property Division Attorneys
Property division is sometimes the simplest portion of a marriage dissolution case. That’s especially true if the marriage only lasted a few months or the couple had a solid premarital agreement. But these things are rarely the case. So, divorce property division is often quite complex.
Evidence is usually difficult to obtain. Frequently, spouses try to conceal income or property. Common tricks include intentionally over-withholding employment income and shuffling assets to an LLC or other artificial entity.
The experienced Franklin, TN property division attorneys at Stratton Family Law have seen all these things before. We see right through financial screens. Additionally, we often partner with private investigators and other such professionals in order to obtain needed evidence. In the end, our clients benefit.
Some Basic Rules
Tennessee is an equitable division state. Upon divorce, the marital estate, which includes both assets and debts, must be distributed equitably between the parties. There is a presumption that a 50-50 division is equitable. But that’s not always the case, as one or more of the factors listed below sometimes comes into play here.
Furthermore, the divorce must not be an unfair financial burden on either party. Divorce almost inevitably reduces the standard of living for both spouses. This reduction is often disproportionate. But if the reduction would be grossly disproportionate, an unequal property division might be in order.
Legally, nonmarital property is all debts or assets acquired before the marriage or by gift. Everything else is marital property which is subject to an equitable division. These rules seem rather straightforward, but many divorce involve property classification questions, as outlined below.
Note that a 401(k), IRA, or other retirement account is marital property, at least regarding the amount of accrual which occurred during the marriage. As such, these accounts are subject to equitable division. Special rules apply regarding military retirement accounts.
Most people do not anticipate divorce. As a result, they are rather cavalier in many financial matters. In other words, they are lackadaisical about homework assignments, so they usually have issues on test day.
Frequently, a Franklin, TN property division attorney needs more than a calculator and a calendar to separate marital from nonmarital property.
Assume that, shortly before the marriage, Jesse acquired the skeleton of a classic car. Jacqueline used a wedding gift from her parents to finance Jesse’s automotive reconstruction project. When the couple divorces, the fully-restored classic car has a considerable market value.
The car’s skeleton was clearly Jesse’s nonmarital property, and Jacqueline’s financial gift was clearly her nonmarital property. But what happens when everything is combined?
Depending on the additional facts, the fully-restored car could be Jesse’s nonmarital property, Jacqueline’s nonmarital property, or marital property subject to equitable division. Much depends on the size of Jacqueline’s gift and the gift’s use.
Commingling usually involves assets. Reimbursement, on the other hand, usually involves debt payment.
Assume Jacqueline accumulated $50,000 of student debt when she was single. She began making payments, using funds direct debited from her paycheck, right after the marriage. The student debt is her nonmarital debt. The money from her paycheck is marital property, since it was not acquired before the marriage or by gift.
Upon divorce, Jesse might be entitled to $25,000 from Jacqueline, or a spousal support or other offset, to make up for his share of the marital assets which Jacqueline spent on a nonmarital debt.
Separate property maintenance might involve community reimbursement as well. For example, if Jessee spends several thousand dollars of marital assets per year on vehicle upkeep, if the car is his nonmarital property, Jacqueline might be entitled to some reimbursement.
At Stratton Family Law, we frequently work with forensic accountants and other such professionals in these complex areas.
Property Division Factors
Tennessee’s divorce property division factors are similar to, but not exactly like, the spousal support amount and duration of payment factors. Some major property division factors include:
- Future Earning Capacity: If disability, age, or another similar factor limits one spouse’s future earning ability, the divorce is likely to be an unfair financial burden on that spouse, which means a disproportionate division might be appropriate.
- Noneconomic Contributions to the Marriage: The “homemaker” factor is usually incredibly significant or practically nothing. If one spouse stayed home to be a caregiver, especially if that spouse abandoned career opportunities, those contributions deserve recognition. But in most marriages, the spouses split “caregiver” and “breadwinner” responsibilities, at least to an extent.
- Nonmarital Property Awards: Divorce property divisions do not take place in a vacuum. If one spouse had substantial nonmarital property, especially income-producing property, that factor could affect the future standard of living. A judge cannot turn a blind eye to such things.
- Future Social Security Benefits: In many ways, Social Security is an equalizer. This factor is especially prevalent in grey divorces (divorce over age 55).
To overcome the 50-50 presumption, spouses asking for disproportionate divisions must present substantial evidence on at least one listed factor.
Resolving Property Division Disputes
Most divorces settle out of court. Such settlements save time, which means they also reduce attorneys’ fees. Furthermore, agreed resolutions give the parties more control over the outcome. That could mean fewer costly enforcement motions later.
Most attorneys initiate settlement talks as soon as one spouse files legal paperwork. Frequently, these informal negotiation sessions bear fruit, and the parties can present an agreed final decree of divorce to the judge.
Other property division disputes settle during mediation. A third-party mediator, who is usually an unaffiliated Franklin family law attorney, begins by reviewing the evidence in the case. Then, after listening to both sides, the mediator conveys settlement offers and counter-offers back and forth between the parties.
The soon-to-be-ex-spouses spend most of the session in different rooms. Therefore, mediation also avoids emotional courtroom showdowns which often cause long-term harm.
Assuming both sides negotiate in good faith, mediation is about 90 percent successful. “Good faith” usually means that both sides are willing to compromise, at least in certain areas, in order to reach an agreement.
Property divisions must result in a just and right division of the marital estate. For a free consultation with an experienced Franklin family law attorney, contact Stratton Law. We routinely handle matters in Williamson County and nearby jurisdictions.