Persons marrying later in life, or entering into second marriages, have often acquired separate property in the form of real estate, investments, and other assets prior to the marriage. Protecting separate property from division by a Tennessee divorce court requires proper identification and management of the separate property. Tennessee divorce courts must classify property as either separate or marital and make an equitable division between spouses. Separate property may include, but is not limited to, the following:
- Real and personal property owned prior to the marriage.
- Property acquired in exchange for property owned prior to the marriage.
- Income and appreciation of property owned prior to the marriage.
- Property acquired by gift or inheritance.
- Pain and suffering awards, future medical expenses, and future lost wages.
The most common separate property consists of pre-marital contributions to 401(k) and investment accounts and real estate ownership. Divorce courts will treat the value, and appreciation in value, of these assets as separate property unless the court finds the other spouse has substantially contributed towards the preservation and appreciation. Also, contributions towards these assets, and the increase in value of the marital portion of the contributions, is likely to be classified as marital property and is subject to division.
Here are some useful suggestions to identify and protect your separate property:
- Keep records in the form of statements showing the value of your 401(k), investment, pension, and other accounts at the time of marriage. Many people do not retain these statements and they can be difficult to obtain later if your plan administrator changes.
- Do not add your spouse to your separate investment accounts.
- Maintain inherited cash and property in your separate name.
- Do not add your spouse’s name to separately owned real estate and separately owned real estate used for rental income.
- Do not use marital funds or income from employment to maintain any separate property.
There are other factors that may be considered in identifying and protecting your separate property. You may call our office at (615) 896-7656, or contact us through our website to schedule a consultation to discuss factors which may identify and protect your separate property in a Tennessee divorce.