divorce hearing in Tennessee

2026In turn, it is well-established that “‘marital debts’ are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003).

2024As our Supreme Court has clarified, “marital debts” are “all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003).3 Here, Husband incurred the debt on the Broadway Property after the property’s purchase on February 28, 2018.

2015In contrast, “marital property includes all property owned as of the date of the filing of the complaint for divorce or acquired up to the date of the final divorce hearing.” Larsen-Ball v. Ball, 301 S.W.3d 228, 233 (Tenn. 2010); see Tenn. Code Ann. § 36-4-121 (b)(1).

2014In Larsen-Ball v. Ball, 301 S.W.3d 228, 233-34 (Tenn. 2010), our Supreme Court clarified Tennessee Code Annotated section 36-4-121(b)(1)(A) and explained that “marital property includes all property owned as of the date of filing of the complaint for divorce or acquired up to the date of the final divorce hearing.” (emphasis added).

2015Tennessee Code Annotated section 36-5-103(c) provides: (c) The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court,

2015Attorney’s Fees Tennessee Code Annotated Section 36-5-103(c) provides: The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by

2016This Court has also explained that ―ability to pay should not be the controlling consideration with regard to awards for legal expenses in custody or support proceedings.‖ Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992) (citing Tenn. Code Ann. § 36-5-103 (c) (involving both fees associated with ―the original divorce hearing‖ and ―any subsequent hearing‖)).

2001As indicated by its language, section 36-5-103(c) authorizes an award of attorneys’ fees in custody proceedings “both upon the original divorce hearing and at any subsequent hearing.” In awarding attorneys’ fees pursuant to section 36-5-103(c), the trial court may consider proof of inability to pay, but “ability to pay should not be the controlling consideration.” Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992).

2021Our Supreme Court has instructed courts to exercise discretion in determining whether attorney’s fees are warranted in a particular case and has written that “‘[a]lthough there is no absolute right to such fees, . . . their award in custody and support proceedings is familiar and almost commonplace.’” Eberbach v. Eberbach, 535 S.W.3d 467, 476 (Tenn. 2017) (quoting Taylor v. Fezell, 158 S.W.3d 352, 360 (Tenn. 2005)).

2015Tennessee Code Annotated section 36-5-103(c) provides: (c) The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court,

2014Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003) (citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 243 (Tenn. Ct. App. 1995); Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989)). “‘[M]arital debts’ are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Id. (emphasis added).

2014Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003) (citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 243 (Tenn. Ct. App. 1995); Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989)). “‘[M]arital debts’ are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Id. (emphasis added).

2014Tenn. Code Ann. § 36-4-121 (b)(1)(B); Cohen v. Cohen, 937 S.W.2d 823, 832-33 (Tenn. 1996). -10- Separate property is defined as “[p]roperty acquired by a spouse at any time by gift, bequest, devise or descent,” Tenn. Code Ann. § 36-4-121 (b)(2)(D) (2011), while marital property is defined 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[.]” Tenn. Code Ann. § 36-4-121 (b)(1)(A) (

2012Tenn. Code Ann. § 36–4–121(b)(1)(A) (“during the course of the marriage up to the date of the final divorce hearing”); Tenn. Code Ann. § 36–4–121(b)(1)(B) (“accrued during the period of the marriage”); Snodgrass v. Snodgrass, 295 S.W.3d 240, 247-49 (Tenn. 2009); Cohen v. Cohen, 937 S.W.2d 823, 830 (Tenn. 1996); Kendrick v. Kendrick, 902 S.W.2d 918, 926 (Tenn. Ct. App. 1994) (“[O]nly pension rights accruing during the marriage will be considered marital property.”).

2024Eberbach, 535 S.W.3d at 480 . 12 To the extent that our conclusion here conflicts with the result reached in Polster v. Polster, No. M2020-01150-COA-R3-CV, 2021 WL 4167927 (Tenn. Ct. App. Sept. 14, 2021), this case supersedes Polster. 13 Wife concedes, and we agree, that she is not entitled to an award of attorney fees under Tenn. Code Ann. § 36-5-103 (c), which authorizes an award of attorney fees to the prevailing party “in any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting

2018Thus, the trial court properly complied with the mandates of Rule 10B, § 1.02. 4 Tennessee Code Annotated section 36-5-103(c) provides: The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and

2013“Marital property” is defined 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. . . .” Tenn. Code Ann. § 36-4-121 (b)(1)(A). “[S]eparate property can become part of the marital estate due to the parties’ treatment of the separate property.” Eldridge v. Eldridge, 137 S.W.3d 1, 13 (Tenn. Ct. App. 2002).

2012“Marital property” is defined 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 . . . .” Tenn. Code Ann. § 36-4 - 121(b)(1)(A). “[S]eparate property can become part of the marital estate due to the parties’ treatment of the separate property.” Eldridge v. Eldridge, 137 S.W.3d 1, 13 (Tenn. Ct. App. 2002).

2024This Court has construed the phrase “final divorce hearing date” and held that “the appropriate date for valuing the parties’ property is the date a decree is entered declaring the parties divorced.” Dunlap v. Dunlap, 996 S.W.2d 803, 817 (Tenn. Ct. App. 1998); see also Preston v. Preston, No. 03A01-9406-CV-00202, 1995 WL 10345 , at *7 (Tenn. Ct. App. Jan. 11, 1995).

2008The Code requires that marital property be “valued as of a date as near as reasonably possible to the final divorce hearing date.” Tenn. Code Ann. § 36-4-121 (b)(1)(A); Dunlap v. Dunlap, 996 S.W.2d 803, 817 (Tenn. Ct. App. 1998).

2012Tenn. Code Ann. § 36–4–121(b)(1)(A) (“during the course of the marriage up to the date of the final divorce hearing”); Tenn. Code Ann. § 36–4–121(b)(1)(B) (“accrued during the period of the marriage”); Snodgrass v. Snodgrass, 295 S.W.3d 240, 247-49 (Tenn. 2009); Cohen v. Cohen, 937 S.W.2d 823, 830 (Tenn. 1996); Kendrick v. Kendrick, 902 S.W.2d 918, 926 (Tenn. Ct. App. 1994) (“[O]nly pension rights accruing during the marriage will be considered marital property.”).

2000Fourth, the pension rights must be valued as of a date as near as possible to the final divorce hearing date. 902 S.W.2d at 926-27 (footnotes omitted).

2014Pollan v. Pollan, No. M2011-01896-COA-R3-CV, 2012 WL 2582336 , at *3 (Tenn. Ct. App. July 3, 2012) (citing Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.2002)). “[M]arital debts are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Id. (citing Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003)).

2014Pollan v. Pollan, No. M2011-01896-COA-R3-CV, 2012 WL 2582336 , at *3 (Tenn. Ct. App. July 3, 2012) (citing Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.2002)). “[M]arital debts are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Id. (citing Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003)).

2016While an award of attorney’s fees is within the discretion of the trial court, Huntley v. Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App. 2001), the statute must apply first.

2015While an award of attorney’s fees is within the discretion of the trial court, Huntley v. Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App. 2001), the statute must apply first.

2008As this Court explained in Dunlap v. Dunlap: The statute governing the distribution of marital property requires that property be valued “as of a date as near as rea *412 sonably possible to the final divorce hearing date.” Wright v. Quillen, 909 S.W.2d 804, 809 (Tenn.App.1995) (quoting T.C.A. § 36-4-121(b)(l)(A) (1991)).

1999The statute governing the distribution of marital property requires that property be valued “as of a date as near as reasonably possible to the final divorce hearing date.” Wright v. Quillen, 909 S.W.2d 804, 809 (Tenn. App. 1995) (quoting T.C.A. § 36-4-121(b)(1)(A) (1991)).

2015An award of attorney‘s fees is ―largely in the discretion of the trial court, and the appellate court will not interfere except upon a clear showing of abuse of that discretion.‖ Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995) (citation omitted).

2011Also, Husband was ordered to pay for one-half of the mortgage, taxes and insurance for the ninety days following the divorce during which Wife was permitted to remain in the marital residence. 12 We emphasize that, “[w]hile there is no absolute formula for determining the amount of alimony, ‘the real need of the spouse seeking the support is the single most important factor.’ ” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995) (quoting Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn.Ct.App.1989)).

2014Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003) (citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 243 (Tenn. Ct. App. 1995); Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989)). “‘[M]arital debts’ are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Id. (emphasis added).

2012Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003) (citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 243 (Tenn. Ct. App.1995); Mondelli, 780 S.W.2d at 773 ). “‘[M]arital debts’ are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.” Id. (emphasis added).

2024Separate property is defined in part as “all real and personal property owned by a spouse before marriage, including, but not limited to ... property acquired by a spouse at any time by gift, bequest, devise or descent[.]” Tenn. Code Ann. § 36-4-121 (b)(2)(D). “[S]eparate property may be deemed marital by operation of law under theories of commingling or transmutation.” Snodgrass, 295 S.W.3d at 247 (citing Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002)).

2024Generally, marital property is defined by Tennessee Code Annotated section 36-4- 121(b)(2)(A) 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 [….]” “[S]eparate property may be deemed marital by operation of law under theories of commingling or transmutation.” Snodgrass, 295 S.W.3d at 247 (citing Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002)).

2022See Luplow v. Luplow, 450 S.W.3d 105, 111 (Tenn. Ct. App. 2014). 5 Effective March 31, 2022, the Legislature amended the statute addressing division of marital estates. 2022 1 Tenn. Code Ann.

2022See Luplow v. Luplow, 450 S.W.3d 105, 111 (Tenn. Ct. App. 2014). 5 Effective March 31, 2022, the Legislature amended the statute addressing division of marital estates. 2022 1 Tenn. Code Ann.

2020After classifying property as either separate or marital, a trial court should “place a reasonable value on each piece of property subject to division.” Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. App. 2007).

2020By contrast, the Code defines “separate property” as including, among other things, “[a]ll real and personal property owned by a spouse before marriage.” Tenn. Code Ann. § 36-4-121 (b)(2). -4- “Questions regarding the classification of property as either marital or separate, as opposed to questions involving the appropriateness of the division of the marital estate, are inherently factual.” Bewick v. Bewick, No. M2015-02009-COA-R3-CV, 2017 WL 568544 , at *7 (Tenn. Ct. App. Feb. 13, 2017) (quoting Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007)).

2018When considering a request for attorney’s fees, we will consider “the requesting party’s ability to pay, the 2 Tenn. Code Ann. § 36-5-103 (c) provides: The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divo

2018When an appellate court considers a request for attorney’s fees incurred on appeal, the court considers “the requesting party’s ability to pay such fees, the requesting party’s success on appeal, whether the appeal was taken in good faith, and any other equitable factors relevant in a given case.” Moran v. Willensky, 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010).

2002Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. Ct. App. 1996). -3- Generally speaking, property that is acquired during a marriage by either or both spouses and still owned by either or both spouses at the time of the final divorce hearing is classified as marital property and is thus subject to equitable division.

2001When trial courts value marital property, Tenn. Code Ann. § 36-4 - 121(b)(1)(A) requires them to value the property “as of a date as near as reasonably possible to the final divorce hearing date.” Brock v. Brock, 941 S.W.2d 896, 902 (Tenn. Ct. App. 1996).

2024Generally, marital property is defined by Tennessee Code Annotated section 36-4- 121(b)(2)(A) 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 [….]” “[S]eparate property may be deemed marital by operation of law under theories of commingling or transmutation.” Snodgrass, 295 S.W.3d at 247 (citing Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002)).

2012Tenn. Code Ann. § 36–4–121(b)(1)(A) (“during the course of the marriage up to the date of the final divorce hearing”); Tenn. Code Ann. § 36–4–121(b)(1)(B) (“accrued during the period of the marriage”); Snodgrass v. Snodgrass, 295 S.W.3d 240, 247-49 (Tenn. 2009); Cohen v. Cohen, 937 S.W.2d 823, 830 (Tenn. 1996); Kendrick v. Kendrick, 902 S.W.2d 918, 926 (Tenn. Ct. App. 1994) (“[O]nly pension rights accruing during the marriage will be considered marital property.”).

2020Attorney’s Fees on Appeal Wife seeks her appellate attorney’s fees under Tennessee Code Annotated section 36-5-103(c), which provides: The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any - 32 - suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearin

2018“In a number of other modification cases, the court has simply relied on the general principles applicable to attorney’s fees in divorce cases and on opinions involving initial awards.” Evans, 2004 WL 1882586 , at *15.3 More significantly, the reported decision of Malkin v. Malkin, 475 S.W.3d 252 (Tenn. Ct. App. 2015) explains that Tenn. Code Ann. § 36-5-103 (c) authorizes the courts, in their discretion, to “award attorney’s fees to an alimony recipient who is forced to defend an action to reduce or terminate that alimony.” Id. at 263 . (citing Henderson v. Henderson, No. M2013–01879–COA–R3–C

2025Father acknowledges that, over a decade ago, this Court determined that a termination of parental rights case could not be “accurately . . . characterized as a custody case under Tenn. Code Ann. § 36-5-103 (c).” In re Nathaniel C.T., 447 S.W.3d 244, 247 (Tenn. Ct. App. 2014).

2022See also Bunch v. Bunch, 281 S.W.3d 406, 412 (Tenn. Ct. App. 2008) (“[T]he Trial Court correctly valued Husband’s 401k as of a date as near as reasonably possible to the final divorce hearing.”).

2022See also Bunch v. Bunch, 281 S.W.3d 406, 412 (Tenn. Ct. App. 2008) (“[T]he Trial Court correctly valued Husband’s 401k as of a date as near as reasonably possible to the final divorce hearing.”).

2020Selitsch, 492 S.W.3d 677, 682 (Tenn. Ct. App. 2015).

2019We will defer to the trial court’s decision “unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121 (c) or is not supported by a preponderance of the evidence.” Altman v. Altman, 181 S.W.3d 676, 683 (Tenn. Ct. App. 2005). “[T]he same rules of fairness and equity which apply to the equitable division of marital assets apply to the division of marital debts.” Woods v. Woods, No. M2002- 01736-COA-R3-CV, 2005 WL 1651787 , at *6 (Tenn. Ct. App. July 12, 2005). “‘[M]arital debts’ are all debts incurred by either or both spouses during the course of the marriage up to the date of th

2018Thus, the trial court properly complied with the mandates of Rule 10B, § 1.02. 4 Tennessee Code Annotated section 36-5-103(c) provides: The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and