Maryville, TN asked in Divorce for Tennessee

Q: how long does one have to be married to get there retirement?

Related Topics:
2 Lawyer Answers
Paul E. Tennison
Paul E. Tennison
PREMIUM
Answered
  • Brentwood, TN
  • Licensed in Tennessee

A: Tennessee law does not have a specific statutory length of marriage requirement for things such as retirement benefits. The general legal rule is that retirement assets acquired before the marriage are separate property. Retirement assets earned during the marriage, and the appreciation of retirement benefits are marital assets subject to equitable distribution in divorce. Social Security retirement benefits are not typically considered marital property by Tennessee courts and can’t be divided or altered by divorce.

I recommend you consult with an experienced family law attorney to discuss in greater detail your prospective or current divorce. Good luck.

Mr. Kent Thomas Jones Esq.
Mr. Kent Thomas Jones Esq.
Answered
  • Cleveland, TN
  • Licensed in Tennessee

A: Generally speaking, in the State of Tennessee, marital property is divided, but separate property is not. All of the property is identified, classified and valued. Tennessee is an “equitable distribution” state, which means that once the property is classified as marital or separate, the trial court has to divide it equitably. T.C.A. Section 36-4-121(c). However, marital property is not always divided 50/50. Instead, it is divided “equitably.”

In certain circumstances, an entire asset could be given to one spouse. However, with the close range of money that you and your wife have, I don’t think that this would occur.

Separate Property” is all real and personal property owned before marriage, gifts and inheritances.

With regard to “marital property,” the courts look at:

1. The duration of the marriage;

2. The age, physical and mental health, vocation skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;

3. The tangible or intangible contribution by one party to the education, training or increased earning capacity of the other party;

4. The relative ability of each party for future acquisitions of capital assets and income;

5. The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role (who contributed more or performed the marital role more);

6. The value of the separate property of each party;

7. The estate of each party at the time of marriage;

8. The economic circumstances of each party at the time the division of property is to become effective;

9. The tax consequences to each party; costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;

10. The amount of social security benefits available to each spouse; and

11. Such other factors as are necessary to consider the equities between the parties.

In spite of the “general” statement mentioned above, courts do consider separate property. If one spouse has more “separate” property, then the other spouse will usually be given more “marital” property.

In direct answer to your question, the appreciation of “separate” property during the marriage can become “marital” property. The test is whether the non-owning spouse proves that both spouses substantially contributed to its preservation and appreciation.

Also, if separate property is inextricably mingled with marital property or separate property of the other spouse, then the courts look at it as a “gift” to the marital property, which, as stated above, is divided.

There is also a concept of “transmutation.” This is when there is evidence of an intention that the separate property be marital.

The issues that are of concern to you are complex. So, when and if you get into a divorce situation, call me, because turning separate property into marital property requires a long analysis.

Thank you for your time. Have a wonderful day.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.