Marriage is a contract, and divorce is the legal dissolution of that contract. When the two parties separate, they will each try to assert the right to certain property that the two once owned together. The division of assets is often the most contentious aspect of a divorce, unless there are children involved and there is a custody battle.

When two people come together, each of them may already have some property, investments, retirement savings and other assets. This can be considered separate property as long as it was always kept separate. As time passes, the couple earns income and acquires assets together, which is marital property. If the couple had entered into a pre-marital agreement about what would happen to their separate property in the event of divorce, then there would be no question about how it would be treated when it comes time to divide the marital assets in divorce. In the absence of such an agreement, however, it could be more challenging to determine what is separate and what is marital, leaving it up to the judge to decide.

How does separate property become marital property?

As long as separate property is kept separate during the marriage, you should be able to make a claim to what was yours before you married, without having to divide it equitably. However, if it is comingled with marital property, or if your spouse makes a substantial contribution to the preservation and appreciation of those separate assets, they could be considered marital property. For example: if one spouse came into the marriage with a significant inheritance and transferred a portion of that money into a joint account for the purpose of purchasing the marital home, the money in the joint account is now marital property because it has been comingled with other marital assets.

Keeping what is yours

When it comes time for divorce, the couple can sit down and come up with their own agreement about how their assets and debts will be divided between them. This is often an easier option for couples who hope to avoid a more contentious battle, or who do not want to make a claim on property that originally belonged to one specific spouse. If you and your partner have a pre- or post-nuptial agreement, it is likely that the document will cover this exact issue.

However, if a couple is unable to come to a mutual agreement, the court will decide how the marital assets will be divided. A family court judge considers several factors in this division, including the duration of the marriage, the age, skills and financial capacity of each spouse, how much one spouse contributed to the education and training of the other, the value of each party’s separate property and several other factors including the tax consequences to each party.

The division of assets quite complicated, and it requires the skill and experience of a Nashville divorce attorney to advise you and protect your interests. The legal team at the Nashville law firm of Miller Upshaw Family Law, PLLC, has helped many clients negotiate divorce settlements and protect their interests. Contact us today to discuss your case.