Answers from AARP

My spouse and I are getting a divorce and cannot agree on how to divide our property. How will the court divide our property?

My spouse and I are getting a divorce. Is it true that I must be totally unable to support myself in order to receive alimony?

How will my divorce affect my pension benefits?

My spouse and I are getting a divorce and cannot agree on how to divide our property. How will the court divide our property?

Courts have the authority to equitably distribute marital property between spouses without regard to marital misconduct. Equitably does not necessarily mean equally. "Marital property" means all property either of you acquired during your marriage.

The following property is not marital property:

bullet gifts you received from someone other than your spouse or property you inherited;
bullet property either of you owned before your marriage or exchanged for property owned before your marriage or for property that you received as a gift or you inherited;
bullet property you and your spouse said was not marital property in signed agreement;
bullet property you got between your final separation and the date of divorce;
bullet any judgment or property that you got from a court award from the other spouse;
bullet the increase in value of any of the above property, regardless of whether the increase resulted from a contribution of marital property, non-marital property, or your spouse’s personal efforts (this may be subject to a right of reimbursement); and
bullet income from any of the above property if the income is not due to a spouse’s personal efforts.

It does not matter whose name is on the title. All property is marital property that does not fall into one of the above exceptions. Pension and retirement benefits are marital property.

Several factors are considered in dividing property equitably, including

bullet each party’s economic circumstances (tax ramifications);
bullet whether the party will have custody of any dependent minor children;
bullet a party’s age, health, occupation, amount and sources of income, employability, and needs of the party;
bullet whether a party is receiving maintenance (alimony) in addition to or instead of property;
bullet the length of the marriage; and

a party’s contribution to the value of marital or non-marital property, including a contribution as a homemaker.

My spouse and I are getting a divorce. Is it true that I must be totally unable to support myself in order to receive alimony?

No, the court considers many factors in deciding to award alimony (referred to as "maintenance" in Tennessee). Among these are:

bullet each party’s income and property, including the marital property that the court previously divided and non-marital property assigned to the party seeking maintenance;
bullet the needs of each party;
bullet each party’s present and future earning ability;
bullet the length of the marriage;
bullet the age and physical and emotional conditions of both parties; and
bullet the standard of living established during the marriage.

The general policy behind the award of maintenance is to help a dependent spouse become financially independent and to help the recipient maintain a standard of living similar to that established during the marriage.

The court does not consider marital misconduct in determining whether a spouse should get maintenance.

Maintenance ends:

bullet when either party dies;
bullet when the party receiving the maintenance remarries; or
bullet if the party receiving the maintenance lives with another person on a "resident, continuing conjugal" basis.

Generally, a court ordered maintenance award can be modified if circumstances change. However, it cannot be changed if the maintenance provision is set forth in the separation agreement and the agreement does not provide for modification.

How will my divorce affect my pension benefits?

Social Security

A divorced spouse may receive Social Security retirement or survivor’s benefits on the record of a former spouse if he or she was married to the worker for at least ten years before a final divorce. However, the law requires that the divorced spouse who applies for retirement benefits be at least 62 years old, currently unmarried and not entitled to higher retirement or disability benefits on his or her own record. If the divorced spouse remarries, entitlement to these benefits is lost. A divorced widow or widower is entitled to survivor’s benefits if he or she is at least 60 years old and has not remarried before age 60.

Railroad Retirement

A divorced wife is entitled to Tier I benefits under the Railroad Retirement Act under the same circumstances that divorced wives of Social Security covered employees would be eligible for Social Security.

Private Pensions

The Employee Retirement Income Security Act of 1974 (ERISA) gives spouses and divorced spouses some rights in a worker’s pension plan. This law requires that pension benefits paid at normal retirement age take the form of a joint and survivor annuity. A joint and survivor annuity is a benefit paid during the lifetime of the worker, with a survivor benefit to one other person, usually the spouse. In order for a divorced spouse to qualify for survivor benefits, the marriage must have lasted for at least one year.

The Retirement Equity Act of 1984 provided further protections to spouses and former spouses by making it clear that pension benefits are subject to state family law, including divorce law. Practically speaking, this means that a pension is "property" subject to distribution upon divorce according to the guidelines of state law. While federal law generally prohibits assignment or giving away of one’s rights in a pension, it does permit assignment of pension benefits to a former spouse under a Qualified Domestic Relations Order, an order or judgment of a court relating to alimony or marital property rights.

The impact of divorce on an individual’s economic status will depend upon a number of factors unique to the individual. If an individual is contemplating divorce, it is very important for the individual to consult with an attorney who can advise the individual specifically about the individual’s rights.


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