Facts: Mother and Father divorced after 10 years of marriage. Before the marriage, Father began to work toward a pension and opened a 401(k) retirement account. After their child was born, Mother focused on being a homemaker and stay-at-home parent. Among other rulings, the trial court ordered that “[e]ach party shall receive 50% of the other’s pensions and retirement accounts on the date of this decision. These awards should be accomplished by use of a qualified domestic relations order or other advantageous means.” Father appealed. On Appeal: The Court of Appeals vacated the trial court’s ruling on the pension. Tennessee divorce law distinguishes between separate property and marital property, making Tennessee a “dual property” state. The law allows for the division of only marital property in a divorce. Thus, all assets possessed by the divorcing parties must be classified as either marital or separate so a proper division can occur. Marital property includes the value of vested and unvested pension benefits and other fringe benefit rights accrued because of employment during the marriage. Separate property includes the value of vested and unvested pension benefits and other fringe benefits accrued because of employment before marriage, together with the appreciation of that value. Thus, the part of a spouse’s pension benefits accumulated before marriage, along with the appreciation attributable to the premarital value, remains separate property not subject to distribution. The Court found error in the trial court’s failure to distinguish separate property from marital property: Here, Father presented evidence at trial demonstrating that a portion of Father’s pension was attributable to premarital employment. The trial court appears not to have taken into account that any portion of the pension qualified as separate property attributable to this pre-marriage employment before distributing the asset. * * * * * Mother argues … the evidence shows the pension was inextricably co-mingled with marital property. However, [TCA § 36-4-121(b)(2)(iii)] specifically addresses and rejects commingling in relation to the portions of pension and other retirement accounts that constitute separate property. This statutory provision expressly states that “the concepts of commingling and transmutation shall not apply.” * * * * * Accordingly, Mother’s argument is unavailing. We are left with undisputed evidence that Father’s pension has a premarital component making it, in part, separate property. The trial court, however, treated the entirety of the pension as marital property; accordingly, the trial court made no determination of what portion of the pension is separate property before distributing the asset as part of the marital estate. Because separate property is not part of the marital estate and thus may not be distributed in divorce proceedings, the trial court’s distribution of the separate property portion of the pension as part of the marital estate is in error. The Court vacated the trial court’s ruling regarding the distribution of the pension and remanded the issue to the trial court for classification of the separate and marital portions of the pension before distributing the marital portion. The trial court may consider additional proof. K.O.’s Comment: Regarding grounds for divorce, the opinion says Father alleged irreconcilable differences and inappropriate marital conduct. The opinion then observes: “Father did not describe the nature of what he believed to be Mother’s inappropriate marital conduct in his counter-complaint.” I found this statement curious because TCA § 36-4-106(a)(1) requires a complaint for divorce to “set forth the grounds for the divorce in substantially the language of” the statute detailing grounds for divorce. This is intended to prevent parties from detailing grounds like inappropriate marital conduct. Otherwise, divorce complaints would be filled with lurid allegations designed to shame and humiliate the other party. Thus, it is not worth mentioning that Father did not describe the nature of Mother’s inappropriate marital conduct in his complaint because Tennessee law prohibits him from doing so. Source: Bailey v. Bailey (Tennessee Court of Appeals, Middle Section, May 28, 2025). If you find this helpful, please share it using the buttons below.