If I owned real property (home and land) before my marriage, can my spouse be awarded an interest or portion of the property in my divorce?
We are asked this question by many divorce clients our office represents in Murfreesboro, Tennessee. The answer to the question depends on a number of factors. There are two classifications of property in a divorce in Tennessee. Before the trial court makes its ultimate division of property, it must first classify the property at issue as either “marital” or “separate”. Curry v. Curry, 2008 WL 4426895, *7 (Tenn. Ct. App. September 18, 2008). T.C.A. § 36-4-121 (b) (1) “defines marital property as: 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.”Further, T.C.A. § 36-4-121(b) (2) (A) defines separate property as: “All real and personal property owned by a spouse before marriage.” There are times that real property that was acquired before the marriage, and which would normally be treated as separate property, may be treated as marital property in the divorce, if a party presents the appropriate evidence at trial.
Parties successfully rebut the presumption that an asset acquired prior to the marriage is separate property by presenting evidence at trial of the transmutation of that asset. “Transmutation occurs when separate property is treated in such a way as to give evidence of the intention that it becomes marital property.” Langschmidt at 747. The court’s analysis in determining whether an asset is marital or separate depends on the conduct of the parties. Cohen v. Cohen, 937 S.W.2d 823 (Tenn. 1996). Even where an asset was owned separately by one spouse prior to the marriage, that asset will be classified as marital property “if the parties themselves treated it as marital property.” Id.
The four most common factors that Tennessee courts utilize in order to determine whether real property has been transmuted from separate property to marital property are: (1) The use of the property as a marital residence; (2) the ongoing maintenance and management of the property by both parties; (3) placing the title to the property in joint ownership; and (4) using the credit of the non-owner spouse to improve the property.
An example of where separate property is transmuted into marital property occurs when it is shown to the court that the parties utilized the property at issue as their marital residence and where the non-owner spouse contributed time and made financial contribution to the maintenance and improvement of the property. Such evidence demonstrates the intention of the partiesthat the real property is part of the marital estate. Hagler v. Hagler, 2009 WL 838163 (Tenn. Ct. App. 2009).
So in conclusion, the answer to the question “If I owned real property (home and land) before my marriage, can my spouse be awarded an interest or portion of the property in my divorce?” is not an easy or simple answer. The answer will depend on the particular facts of eachindividual’s case. Please call if we can help you with this issue.