“Fifty-fifty, right? That’s how it works?”

I hear that at least once a week. And I have to explain that Tennessee is an equitable distribution state, not an equal distribution state. I say that to every client at the start of the property conversation, and about half of them hear it as the same thing.

Equal means fifty-fifty. Equitable means fair, under all the circumstances. Those two numbers do not always match.

(Sometimes the look on their face tells me they were counting on a different answer.)

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What Gets Divided

Only marital property is subject to division. Separate property — assets one spouse owned before the marriage, gifts and inheritances received by one spouse, and certain other property categories — stays with that spouse.

The catch is that separate property can become commingled with marital property, and when that happens, sorting it out takes work. If you brought a savings account into the marriage and spent twenty years depositing and withdrawing from it alongside marital funds, establishing the separate property portion is going to require documentation.

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The Factors Courts Apply

When parties cannot agree on how to divide property, Tennessee courts consider the length of the marriage, each spouse’s economic circumstances at the time of division, each spouse’s contribution to the acquisition of marital property (including contributions as a homemaker), the value of each spouse’s separate property, and the tax consequences of the proposed division.

Courts can also consider the conduct of the parties during the marriage in appropriate circumstances. I, Bill Jones, have seen judges in Shelby County adjust property division based on fault.

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What Equitable Usually Looks Like in Practice

In long marriages, especially those where one spouse worked and the other managed the household and children, outcomes near fifty-fifty are common. The homemaker’s contributions count. Courts take that seriously.

In short marriages, outcomes closer to returning each party to their pre-marital position are more common. Someone who brought significant separate assets into a two-year marriage is not typically going to leave with half of those assets going to the other spouse.

Every case is different. Which is why negotiation almost always produces a better result than litigation on property issues.

Lawyer Bill’s Advice

Fair does not mean equal. And equal is not always fair.

Know the difference before you decide what you are willing to accept.

And know that a judge’s definition of fair is not guaranteed to match yours.

Settle when you can. Fight when you must. Know which situation you are in.

If you have questions, reach out at midsouthdivorce.com/ask-lawyer-bill/.

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About the Author: William W. Jones IV is a Memphis family law attorney, Rule 31 Listed Family Mediator, and Super Lawyers selectee every consecutive year from 2014 through 2026. Licensed in Tennessee (BPR 022869) and Mississippi (BPR 100707), he practices at The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353 or visit midsouthdivorce.com.

More on this: Property and Debt, from The Mid-South Divorce Guide, a complimentary guide to divorce in Tennessee and Mississippi.