Marital Property After Spouses Separate

25 March, 2010 by Lawrence in Divorce, Property Division

Money and propertyIn earlier posts I wrote that as part of a divorce the court will divide the marital property between the parties.  However, sometimes the parties have been separated and living apart for a while (sometimes years), and this question comes up: Is the stuff we purchase after the separation marital property or separate property?

Marital property defined

Tennessee law has a fairly clear definition at T.C.A. 36-4-121(b)(1)(A):

“‘Marital property’ means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, …  including any property to which a right was acquired up to the date of the final divorce hearing

In plain language, this means all the stuff you’ve been buying since you and your spouse separated can be treated as marital property by the court.

Fellow attorney (and probable future contributor) Jad Duncan came up with a great example:  While separated from his wife, a guy buys a pair of motorcycles.  One for him, one for his girlfriend.  The judge may well decide that the husband really bought his wife a nice motorcycle.  Hope she enjoys it.  Too bad for the girlfriend.

What you need to know

Regardless of what the law says, the court can exercise principles of fairness.  The court can consider the situation as a whole, where the money came from, what agreements exist between the parties, along with other factors.

Also, this only applies to a situation where the parties are married, but living separately.  If the parties have been to court to obtain a legal separation (which is rare), the rules are different.

Determining what is and what is not marital property can become very complex when investment accounts, cash-value insurance, and other forms of property come into play.  Some people manage to make their situation more complicated than it needs to be.  If you are in a situation like this, contact me to find out how I can help you protect your interest in the marital assets.