Marital property is anything, real or personal, that was acquired during marriage, and includes any increase in value of separate property over the course of the marriage or personal injury recoveries.
The court determines the spouses’ contributions to increase to determined value. Everything else is separate property, and is awarded to the spouse whose property it is.
Based on these definitions, it is important to know when parties are married, and when and if they are divorced, as it directly impacts title. As insurers, we do not make a determination for insurance purposes that there is “marital interest” that vests, such that is requires joinder of the spouse, other than the statutory homestead interest.
However, we are in the risk of avoidance business, hence, we prefer the non-titled spouse to join.
The Courts make decisions regarding marital property and its division based on a number of factors. None of these factors concern us from a title perspective. Spouses are either on title to real property, or they are not, and that largely depends on whether the property is marital or separate. Again, the date of the marriage and the date of the divorce is crucial to make the determination.
Tennessee is not a community property state, like California or New York. Tennessee is an equitable division state. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (not community property).
Lots of people have insisted in my years of experience in the title business that we are a community property state. I have heard this statement made on many occasions. Such as the case is, we are not.
