Cameron Miranda
Tennessee is not a community property state and does not abide by community property law. Instead, it follows equitable distribution laws, which means that property is divided fairly, but not always equally, between partners. In a community property state, assets acquired during a marriage are treated as belonging to both partners, whereas common law property states that property acquired by one member of a married couple belongs solely to that person unless the property is jointly owned.
| Characteristics | Values |
|---|---|
| Community property state | No |
| Equitable distribution state | Yes |
| Division of property | Fair, not always equal |
| Division of property factors | Length of marriage, age, health, earning capacity, financial needs, social security benefits, value of separate property, homemaking contributions, education, alimony, child custody |
| Common law property | Not mentioned |
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What You'll Learn
Tennessee is not a community property state
In Tennessee, marital or community property can include any debts, assets, or property acquired during the marriage. However, Tennessee differentiates between marital property and separate property. Separate property is anything that was gifted, inherited, or received by gift, bequest, or devise during the marriage. It also includes property that was owned prior to the marriage. In Tennessee, the separate property of one spouse is not divisible in divorce, only marital property is divided.
In equitable distribution states like Tennessee, the division of property aims to be fair, but not necessarily equal. Courts have the freedom to adjust amounts up or down to make things as fair as possible, taking into account various factors such as the length of the marriage, age, health, earning capacity, financial needs after the divorce, benefits from Social Security, and the value of each spouse's separate property.
Tennessee is one of only nine community property states in the U.S., including Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. These states follow community property laws, which dictate that all joint assets and debts are divided equally, with a 50-50 split.
While Tennessee is not a community property state, it is important to note that it is one of the few states that still allows fault-based divorce. However, a finding of fault in divorce will have no bearing on the division of community property between spouses.
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Tennessee follows equitable distribution laws
Tennessee is not a community property state and does not abide by community property law. Tennessee follows equitable distribution laws, like the majority of other states in the U.S.
Equitable distribution laws aim to create a fair divorce agreement, rather than an equal one. While negotiations might start at a 50-50 split, this can be adjusted to encompass the unique needs of both individuals. Courts in Tennessee are allowed to consider intangible or non-monetary factors that could affect the partners post-divorce. For example, a judge may consider homemaking contributions, or the contributions one spouse made to the other's education.
In equitable distribution jurisdictions, there are two categories of property: marital property and separate property. Marital property must be divided in all Tennessee divorces. Separate property, however, is not divisible in divorce unless the parties have a written settlement agreement.
In Tennessee, separate property can change status if it's mixed so thoroughly with marital property that it's impossible to determine what is separate and what is marital, or if it's treated like marital property by the couple.
In the event that you want more control over how your marital property, assets, and debts will be divided in the event of a divorce, you can create a prenuptial agreement.
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Separate property can change status to marital property
Tennessee is not a community property state and does not abide by community property law. Instead, it follows equitable distribution laws. In a community property state, marital property is divided equally between the two partners, with a 50-50 split. However, equitable distribution laws, which are followed by Tennessee and most other states, aim to create a fair divorce agreement, rather than an equal one.
In Tennessee, separate property can change status to marital property in two ways. The first is through commingling, which occurs when separate assets are mixed with marital assets to such an extent that it becomes impossible to distinguish between the two. This could be through co-mingling of funds, where separate money is mixed with joint funds, or through joint ownership, where an asset is titled in both names. The second way is through transmutation, where separate property is treated like marital property by the parties involved. For example, if a spouse pays for the upkeep of a house owned by their partner, this could lead to the property being considered marital property.
It is important to note that prenuptial and postnuptial agreements can help protect separate assets from becoming marital property. These agreements can clearly define what is considered separate versus marital property, providing clarity and reducing confusion during divorce proceedings.
Additionally, in Tennessee, marital property refers to assets or property acquired during the marriage. This includes income earned by both spouses, as well as assets purchased or acquired jointly. Separate property, on the other hand, typically applies to assets owned prior to the marriage or acquired through gifts, inheritances, or other unilateral transfers.
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Common law property vs community property
Tennessee is not a community property state and instead follows equitable distribution laws. This means that, in the event of a divorce, property will be divided equitably according to a set of listed statutory factors.
In a common law property state, property that is acquired by one spouse is considered their sole property unless the title or deed carries both spouses' names. In other words, each spouse is treated as a separate individual with separate legal and property rights.
In contrast, community property law treats assets acquired during a marriage as belonging to both partners. In a community property state, marital property is owned by both spouses equally. This includes earnings, all property bought with those earnings, and all debts accrued during the marriage.
Tennessee has adopted an optional community property system, along with Alaska, South Dakota, and Puerto Rico. This means that couples can choose to opt in to community property law, which allows for a 50-50 split of assets and debts. However, without this opt-in, the default in Tennessee is for separate property to remain the property of the individual spouse, while marital property is subject to equitable distribution.
In an equitable distribution state like Tennessee, the court strives to make things fair, rather than equal, between divorcing partners. While 50-50 is usually the starting point, the court can adjust amounts up or down to account for intangible or non-monetary factors that could affect the partners post-divorce. For example, in Tennessee, a finding of fault in divorce will have no bearing on the division of community property, but it can influence decisions about alimony and child custody.
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Division of military retired pay
Tennessee is one of the states that divide only the "frozen benefit" of military retired pay. The Uniformed Services Former Spouses' Protection Act (USFSPA) gave state courts the right to treat military retirement as marital property, and Tennessee courts must make an equitable division of such property, which generally means equal or 50/50. Tennessee's property division rules and the 10-Year Rule are measured from the date of marriage until the date of divorce.
The 10/10 Rule, which states that a couple must have been married for at least ten years with ten years of military service, is not a requirement for the non-service member spouse to be entitled to any portion of the military retirement pay. However, the 10-Year Rule does affect the manner in which the former spouse receives their share of the military retired pay. It allows DFAS to avoid the administrative burden of keeping up with and paying out small divisions of military retired pay.
The division of a military pension requires the execution of certain documents unique to each branch of the military, and Tennessee divorce attorneys may work with pension counsel to ensure the exact information is communicated with the Government in the right format. The amount of a military pension that covers disability retirement pay is generally not subject to division, but this is governed by some complex formulas.
Tennessee law states that if a spouse is married to a military service member for any period during which the service member serves in the military and that service member later retires from the military, the spouse can be awarded a portion of the service member's military retirement regardless of the length of the marriage. Based on a 20-year retirement, the former spouse can expect to accrue about 2.5% of disposable retirement pay for each year of marriage that overlaps with the service member's credible military service.
It is important to note that the military retired pay to be divided will be attributable to the rank and years of service of the military member as of the date of divorce. This means that even if the member rises in rank and years of service afterward, resulting in a larger pension, the division will be discounted by using the "marital fraction" to apply only the benefit acquired during the marriage.
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Frequently asked questions
No, Tennessee is not a community property state.
In a community property state, all property acquired by either spouse during the marriage, except by gift, inheritance, or a few other exceptions, is the property of both ("the community").
Tennessee is an equitable distribution state. In the case of divorce, this means that property will be divided equitably according to a set of listed statutory factors.
The length of the marriage, age, health, and earning capacity, financial needs after the divorce, benefits from Social Security, and the value of each spouse's separate property.
Yes, spouses could agree to what they believe is an equal division of their marital property. They could also agree to a fair, yet unequal, division.
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