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Community property and separate property

One of the most misunderstood things about the property division process is what counts as community (marital) property and what is considered separate property. The state of Tennessee is an equitable distribution state, which means that it is up to the judge to decide how the assets will be split between the two parties. It's also important to note here that equitable does not always mean equal. In fact, how the property is divided often depends on things like which spouse earns more, who has the higher earning potential and who will be the residential parent and main custodian for the children.

In general, community property includes property, nontangible assets and debt that were obtained or incurred during the course of the marriage. Separate property is usually only that which the person had prior to the marriage. Anything bought with funds that were considered separate property — such as an inheritance — is often also considered separate property.

Where this gets confusing is in the case of comingled funds. It's not unusual for spouses to use money from separate bank accounts or inheritances to purchase things for the family. What happens with this, though, is that then the property and/or funds may be deemed as marital property since it was bought for the entire family.

Issues with comingled funds can have a dramatic effect on a property division settlement. If you have questions about what may be considered an equitable division of assets for your situation or which assets may be deemed marital property, talking with a family law attorney may be beneficial.

Source: FindLaw, "Divorce Property Division FAQ," accessed Jan. 07, 2016

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