2023 Tennessee Code › Title 36 - DOMESTIC RELATIONS (§§ 36-1-101 — 36-8-104) › Chapter 4 - DIVORCE AND ANNULMENT (§§ 36-4-101 — 36-4-135) › Section 36-4-121 - Division, distribution, or assignment of marital property - Allocation of marital debt

(a)
(1)
In all actions for divorce or legal separation, prior to any determination as to whether it is appropriate to order the support and maintenance of one (1) party by the other, the court having jurisdiction thereof shall:
(A)
Equitably divide, distribute, or assign the marital property between the parties without regard to marital fault in proportions as the court deems just based on the factors set forth in subsection (c); and
(B)
Allocate responsibility for paying the marital debt in proportions as the court deems just based on the factors set forth in subsection (i). The court may order the payment of all or a portion of the marital debt from the marital property prior to distribution of the marital property to the parties.
(2)
In all actions for legal separation, the court, in its discretion, may equitably divide, distribute, or assign the marital property in whole or in part, or reserve the division or assignment of marital property until a later time. If the court makes a final distribution of marital property at the time of the decree of legal separation, then any property acquired after the date of the decree of legal separation is separate property. The court, in its discretion, may also make a final allocation of all or part of the marital debt existing at the time of the decree of legal separation, or the court may reserve the allocation of marital debt until a later time. If the court makes a final allocation of marital debt at the time of the decree of legal separation, then any debt acquired after the date of legal separation is separate debt.
(3)
(A)
Any auction sale of property ordered pursuant to this section shall be conducted in accordance with title 35, chapter 5.
(B)
To this end, the court shall be empowered to effectuate its decree by divesting and reinvesting title to such property and, where deemed necessary, to order a sale of such property and to order the proceeds divided between the parties.
(C)
The court may order title 35, chapter 5 to apply to any sale ordered by the court pursuant to this section.
(D)
The court, in its discretion, may impose any additional conditions or procedures upon the sale of property in divorce cases as are reasonably designed to ensure that such property is sold for its fair market value.
(b)
As used in this chapter:
(1)
"Marital debt":
(A)
Means all debt incurred by either or both spouses during the course of the marriage through the date of the final hearing and any proceedings brought pursuant to Rule 59 of the Tennessee Rules of Civil Procedure; and
(B)
Includes debt incurred to pay attorney fees and expenses incurred in connection with the proceedings, and unpaid attorney fees and expenses incurred in connection with the proceedings through the date of the final hearing and any proceedings brought pursuant to Rule 59 of the Tennessee Rules of Civil Procedure;
(2)
(A)
"Marital property" means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering an order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property;
(B)
(i)
"Marital property" includes income from, and any increase in the value during the marriage of, property determined to be separate property in accordance with subdivision (b)(4) if each party substantially contributed to its preservation and appreciation;
(ii)
"Marital property" includes the value of vested and unvested pension benefits, vested and unvested stock option rights, retirement, and other fringe benefit rights accrued as a result of employment during the marriage;
(iii)
The account balance, accrued benefit, or other value of vested and unvested pension benefits, vested and unvested stock option rights, retirement, and other fringe benefits accrued as a result of employment prior to the marriage, together with the appreciation of the value, shall be "separate property." In determining appreciation for purposes of this subdivision (b)(2)(B)(iii), the court shall utilize any reasonable method of accounting to attribute postmarital appreciation to the value of the premarital benefits, even though contributions have been made to the account or accounts during the marriage, and even though the contributions have appreciated in value during the marriage; provided, however, the contributions made during the marriage, if made as a result of employment during the marriage and the appreciation attributable to these contributions, would be "marital property." When determining appreciation pursuant to this subdivision (b)(2)(B)(iii), the concepts of commingling and transmutation shall not apply;
(iv)
Any withdrawals from assets described in subdivision (b)(2)(B)(iii) used to acquire separate assets of the employee spouse shall be deemed to have come from the separate portion of the account, up to the total of the separate portion. Any withdrawals from assets described in subdivision (b)(2)(B)(iii) used to acquire marital assets shall be deemed to have come from the marital portion of the account, up to the total of the marital portion;
(C)
"Marital property" includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property;
(D)
As used in this subsection (b), "substantial contribution" may include, but not be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine;
(E)
Property shall be considered marital property as defined by this subsection (b) for the sole purpose of dividing assets upon divorce or legal separation and for no other purpose; and assets distributed as marital property will not be considered as income for child support or alimony purposes, except to the extent the asset will create additional income after the division;
(3)
"Separate debt" means:
(A)
All debt incurred by either spouse prior to the date of the marriage; and
(B)
All debt incurred after the entry of a decree of legal separation if the court allocated responsibility for payment of marital debt as part of the decree of legal separation;
(4)
"Separate property" means:
(A)
All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986 (26 U.S.C.), as amended;
(B)
Property acquired in exchange for property acquired before the marriage;
(C)
Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);
(D)
Property acquired by a spouse at any time by gift, bequest, devise or descent;
(E)
Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
(F)
Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
(c)
In making equitable division of marital property, the court shall consider all relevant factors including:
(1)
The duration of the marriage;
(2)
The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3)
The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4)
The relative ability of each party for future acquisitions of capital assets and income;
(5)
(A)
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;
(B)
For purposes of this subdivision (c)(5), dissipation of assets means wasteful expenditures which reduce the marital property available for equitable distributions and which are made for a purpose contrary to the marriage either before or after a complaint for divorce or legal separation has been filed;
(6)
The value of the separate property of each party;
(7)
The estate of each party at the time of the 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)
In determining the value of an interest in a closely held business or similar asset, all relevant evidence, including valuation methods typically used with regard to such assets without regard to whether the sale of the asset is reasonably foreseeable. Depending on the characteristics of the asset, such considerations could include, but would not be limited to, a lack of marketability discount, a discount for lack of control, and a control premium, if any should be relevant and supported by the evidence;
(11)
The amount of social security benefits available to each spouse;
(12)
Such other factors as are necessary to consider the equities between the parties; and
(13)
The total amount of attorney fees and expenses paid by each party in connection with the proceedings; whether the attorney fees and expenses were paid from marital property, separate property, or funds borrowed by a party; and the reasonableness, under the factors set forth in Rule 1.5 of the Tennessee Rules of Professional Conduct, and necessity of the attorney fees and expenses paid by each party;
(d)
The court may award the family home and household effects, or the right to live therein and use the household effects for a reasonable period, to either party, but shall give special consideration to a spouse having physical custody of a child or children of the marriage.
(e)
(1)
The court may impose a lien upon the marital real property assigned to a party, or upon such party's separate real property, or both, as security for the payment of child support.
(2)
The court may impose a lien upon the marital real property assigned to a party as security for the payment of spouse support or payment pursuant to property division.
(f)
(1)
If, in making equitable distribution of marital property, the court determines that the distribution of an interest in a business, corporation or profession would be contrary to law, the court may make a distributive award of money or other property in order to achieve equity between the parties. The court, in its discretion, may also make a distributive award of money or other property to supplement, facilitate or effectuate a distribution of marital property.
(2)
The court may provide that any distributive award payable over a period of time be secured by a lien on specific property.
(g)
(1)
Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties regarding the division of property.
(2)
Nothing in this section shall affect validity of an antenuptial agreement that is enforceable under §
36-3-501
.
(h)
If an order of protection issued in or recognized by this state has been in effect or there is a court finding of domestic abuse or any criminal conviction involving domestic abuse within the marriage that is the subject of the proceeding for divorce, the court shall attribute any debt owed for any batterers' intervention or rehabilitation programs to the abuser only.
(i)
(1)
In allocating responsibility for the payment of marital debt, the court shall consider the following factors:
(A)
The purpose of the debt;
(B)
Which party incurred the debt;
(C)
Which party benefitted from incurring the debt; and
(D)
Which party is best able to repay the debt.
(2)
In allocating responsibility for payment of unpaid attorney fees and expenses incurred in connection with the proceedings, the court shall consider the factors in subdivision (i)(1) and the following factors:
(A)
The total amount of attorney fees and expenses incurred by each party in connection with the proceedings;
(B)
The total amount of attorney fees and expenses paid by each party in connection with the proceedings;
(C)
Whether the attorney fees and expenses incurred by each party are reasonable under the factors set forth in Rule 1.5 of the Tennessee Rules of Professional Conduct; and
(D)
Whether the attorney fees and expenses were necessary.
(3)
The court may order the payment of all or a portion of the marital debt from the marital property prior to the allocation of responsibility for paying marital debt by either party, and may charge the party's share of the marital estate with all or a portion of the attorney fees and expenses paid by that party.
Amended by 2022 Tenn. Acts, ch. 762, Secs.s1, s2, s3, s4, s5, s6 eff. 3/31/2022.
Amended by 2017 Tenn. Acts, ch. 309, s 1, eff. 7/1/2017.
Amended by 2015 Tenn. Acts, ch. 202, s 1, eff. 7/1/2015.
Amended by 2014 Tenn. Acts, ch. 786, s 1, eff. 7/1/2014.
Acts 1953, ch. 90, § 1 (Williams, § 8446); 1959, ch. 192, § 1; 1983, ch. 414, § 4; T.C.A. (orig. ed.), § 36-825; Acts 1984, ch. 590, §1; 1986, ch. 722, § 2; 1987, ch. 122, § 1; 1987, ch. 390, §6; 1988, ch. 682, § 1; 1988, ch. 735, § 1; 1988, ch. 841, §§ 1, 2; 1991, ch. 449, § 1; 2000, ch. 713, §§ 1 - 9; 2001, ch. 274, § 1; 2002, ch. 651, §8; 2011 , ch. 119, § 1.