Will My Spouse Get My Stuff?
One of the biggest fears about getting divorced, and by extension even getting married in the first place, is that people are afraid of losing their stuff. Let me be clear: your spouse cannot take “your stuff.” If by “your stuff” you mean the legal concept of separate property, then no, your spouse cannot take your separate property. The problem is most people believe everything is their own separate property when in fact, it is property of the marital estate and subject to being divided.
The Marital Estate
What gets divided in a divorce is the “marital estate,” which is all of the property and debts acquired by either party during the marriage. What is excluded, and is therefore separate property, is property owned prior to the marriage, gifts, and inheritances. The most common misunderstanding is that if something is in your name alone, such as a house car, bank account, or retirement account, then it is automatically your separate property and that is not true at all. If you buy a car in your name alone and pay for it out of your own bank account without any involvement of your spouse, then that car is marital property. Why? Because you bought it while married.
The only effect of putting something in your name alone while married is that you can prevent your spouse from controlling that property as to other people like creditors, the IRS, the police, etc. For example, if your spouse has a vehicle in their name alone, doesn’t pay the note, and then gets repossessed, then that does not affect your credit at all. However, that vehicle and the debt attached to it are both marital property. It is important to understand the definition of the marital estate is different in each state, so always be sure to check with a lawyer in your state to be sure about what is and is not marital property.
Separate Can Become Marital
Even if you have property that is clearly separate at the time you get married, it can become marital property based on what you do with it. The simplest example is that your parents give you a gift or inheritance of cash. You then take that cash and use it to make a down payment on a house for your and your spouse. When you get divorced you try to claim home equity equivalent to your parents’ gift as your separate property, but that will not work. Once you spent the money your parents gave you it became marital property in the form of a house. We don’t track the usage of money through transactions.
The only safe way to keep separate property separate or to declare certain assets acquired during the marriage to be your separate property is to execute a pre- or post-nuptial agreement. This is a contract just like a Marital Dissolution Agreement but executed at some other time than a divorce. These agreements are not that common in Tennessee but often are in other states with more liberal definitions of marital property such as California.
You Are One
The reason I stated at the beginning that your spouse cannot take “your stuff” is the vast majority of people do not actually own any stuff at all. If you got married young or have been married a long time, it is more likely than not that everything either spouse has is marital property. I had been a divorce lawyer for nearly ten years prior to getting married, and when I did, I transferred my home title into mine and my wife’s name as a married couple. I do not own anything myself even though I bought my house about eight years before I got married. Everything I own is actually owned by the marital estate known as the Davis Family. This is how you should think about your marriage. You and your spouse are one unit and everything either of you acquires during the marriage is property of your family as a whole, not each of you individually. Remember, the two become one flesh and that applies to your money, property, and debts as well.
