Understanding Equitable Distribution in Divorce

Listen, it’s not vain to admit it: you’re worried about losing your stuff in the divorce. More specifically, you’re worried about losing your money. And why shouldn’t you be? It’s yours, that you earned, that’s in your name. Except, as you might be finding out during the course of your legal proceedings, it’s not only in your name. Your money might not be entirely yours anymore, and that’s always a troubling thought, so you want to know exactly what you’re up against. Good! Being educated on the law is definitely a good thing, especially when it involves your finances and almost every single asset you have.

Property division can be especially tricky, and if you’re not willing to work towards compromise, things might not exactly go the way you want them to. We’ve seen a lot people get hosed during this part of the process because they think they’re gonna keep it all and their ex is gonna walk away with nothing.  So, you should understand what’s happening so you can make the right decisions for you.

How exactly does equitable distribution work?

Here in Tennessee, our courts split things up through an equitable distribution of property. If you learn one thing and one thing only, make it this: equitable is not equal. This is good news, believe it or not. If the distribution of assets and property were equal, that would mean split entirely down the middle, exactly even on both sides. Equitable distribution, however, is based on fairness and judged by the individual circumstances of the case. That gives you — and your attorney — wiggle room to work for an acceptable level of “fair.” Some sort of distribution is going to happen, like it or not, so the next best thing is making sure it’s done in the most EQUITABLE way possible.

It may be comforting to know that not everything you own is up for grabs. The court takes a look at all your assets and separates them into categories of either marital or separate property — only the former of which is divided. Separate property is, basically, anything you owned before you tied the knot. Makes sense, right? It wasn’t their problem then, so it won’t be their prize now. That said, there are some exceptions if you “comingle” your separate assets. Like, if you had a savings account in your name but your spouse contributed money to it, then that makes the account subject to division. Or if you take money from your trust fund and use it to buy a family car, you don’t automatically get to keep that car, you know?

In the same vein of things-making-sense, marital property is – basically – anything you and your ex acquired while you were married. On top of that, the court may deem something marital property if:

• They are pensions, benefits, or stock options earned over the course of the marriage
• Either you or your ex were awarded legal compensation or damages at some point
• Both of you heavily contributed to separate property together while married

Once that’s over and done with, the court needs to actually decide what to do with all that marital property. They’ll do this by reviewing any and all relevant factors, including:

• Each party’s specifics, such as age, vocational ability, physical and mental health, financial needs, etc.
• The duration of the marriage
• Each party’s relative ability to earn income and acquire more assets in the future
• The value of each party’s separate property
• Any other taxes or benefits available to each party

This is not a complete or comprehensive list by any means. If the factor is relevant, it will be considered. If a factor that you believe should be relevant is not considered, that’s something your attorney can bring up.

Divorce is a commitment, too

Here’s the thing. During divorce proceedings your attorney can help you out in a number of ways, but there’s not much they can do after everything is stamped and sealed. This is a primary reason why it’s so important not to try to get through your divorce without legal representation: because there are little bits of the law that may come back to bite you later if someone doesn’t tell you about them now.  You don’t want to find out decades down the line that your agreement isn’t quite what you understood it to be.

Let’s take a pension, for example. In equitable distribution states like Tennessee, if there’s no prenuptial agreement, the court will probably decide who gets your pension, and for how long. Let’s say they rule your ex is to receive half of your pension after your retirement, and then when she passes away you wonder where those pension payments will go. The answer to that question depends on what happens during the divorce — namely, on what the court decides – or the type of plan you have.

You may get lucky and receive 100% of your pension again. Depending on the division, your share may go to a different beneficiary (like a child). Or you may find out that the portion of those pension payments just… ceases to exist. No one gets paid (except for the half you were already receiving). And if you’re the spouse receiving a portion of the pension? Well, your benefits may stop automatically when your ex dies, or if he or she suddenly stops getting pension payments. As you may be able to see, this would be quite the nasty surprise to find out ten, twenty years after the divorce is finalized, long after anything can be done or changed about it.

So, of course, the best thing to do is avoid that. Choose a Knoxville divorce attorney that knows all those sneaky tidbits and how to help you take advantage of them under the law, so that your spouse can’t take advantage of you. It may sound cheesy, but it’s nothing short of the truth. The law exists to help protect everyone’s rights with fairness and justice; attorneys exist to make sure of it.

If you’re worried about protecting your assets and funds in your divorce, trust the Knoxville divorce attorneys of LaFevor & Slaughter. We work for and with you every step of the way, with the transparency, compassion, and experience you deserve. To learn more and get started, give us a call today at (865) 637-6258 or use our ocontact form. Ending a painful chapter of your life shouldn’t bankrupt you in the present OR future, and equitable should be actually equitable.