Tennessee Divorce Law
Divorce and Legal Separation in Tennessee
Divorce and Legal Separation in Tennessee
Tennessee Divorce Basics
A Plaintiff (filing party) may file for divorce in Tennessee if the acts complained of were committed while he/she was a bona fide resident of the state. If the acts complained of were committed outside of the state and the Plaintiff resided out of state at the time, he/she may file for divorce if either the Plaintiff or the Defendant (non-filing party) has resided in Tennessee for six months prior to filing the Complaint.
Any person in the armed services of the U.S., or his/her spouse, who has been living in the state for at one year shall be presumed to be a resident of the state, and the presumption of residence shall be overcome only by clear and convincing evidence of a residence elsewhere.
A Bill or Petition for Divorce may be filed in the chancery or circuit court or other court having divorce jurisdiction, in the county where the parties reside at the time of their separation, or in which the Defendant resides, if a resident of the state; but if the Defendant is a nonresident of the state or a convict, then in the county where the applicant resides.
A Complaint or Petition for divorce must have been on file for at least 60 days before being heard if the parties have no unmarried children under 18 years of age, and must have been on file at least 90 days before being heard if the parties have an unmarried child under 18 years of age. The 60 or 90 day period commences on the date the Complaint or Petition is filed.
In all divorce actions alleging irreconcilable differences, if the Defendant is a nonresident, personal service may be accomplished upon the secretary of the state. Alternatively, in place of service of process, the Defendant may enter into a written notarized marital dissolution agreement with the Plaintiff that makes specific reference to a pending divorce by a court and docket number, states that the Defendant is aware that one will be filed in this state and that he/she waives further service and waives filing an answer to the Complaint.
There is no statutory provision for the restoration of a spouse’s name after divorce. However, case law provides that a wife may resume the use of her former or maiden name by making the request in the divorce complaint. The restoration of the spouse’s name is typically part of the divorce decree.
Legal Grounds for Divorce
- 1. Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;
4. Willful or malicious desertion or absence of either party, without reasonable cause for one year;
5. Being convicted of any crime that, by the laws of the state, renders the party infamous;
6. Being convicted of a crime that, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary;
7. Either party has made an attempt on the life of the other, by poison or any other means showing malice;
8. Refusal, on the part of one party, to move with his/her spouse to Tennessee, without reasonable cause, and being willfully absent from the spouse residing in Tennessee for two years;
9. The wife was pregnant at the time of marriage, by another person, without the knowledge of the husband;
10. Habitual drunkenness or abuse of narcotic drugs of either party, when the spouse has contracted either such habit after marriage;
11. Either party is guilty of such cruel and inhuman treatment or conduct towards the other party as renders cohabitation unsafe and improper, which may also be referred in pleadings as inappropriate marital conduct;
12. Either party has offered such indignities to the other party as to render his/her position intolerable, and therefore forced the party to withdraw;
13. Either party has abandoned his/her spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to do so;
14. Irreconcilable differences between the parties; and
15. For a continuous period of two or more years that commenced prior to or after April 18, 1985, both parties have lived in separate residences, have not cohabitated as man and wife during this period, and there are no minor children of the parties.
Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce.
Even if a Defendant admits to a fault-based ground in a Bill or Petition, before decreeing a divorce, the court shall hear proof of the facts alleged and either dismiss the Bill or Petition, or grant the divorce, as the justice of the case may require.
- Marriage between lineal ancestors or descendants, the lineal ancestors or descendants of either parent, or the child of a grandparent, or the lineal descendants of husband or wife, as the case may be, or the husband or wife of a parent or lineal descendant;
- A second marriage contracted before dissolution of a first marriage, but the first marriage shall be regarded as dissolved if either party has been absent five years and is not known to the other to be living;
- Either party to the marriage is under 16 years of age; or
- Either party to the marriage is at least 16 years of age but under 18 years of age, and did not obtain the consent of a parent, guardian, next of kin or party having custody of the underage party;
Tennessee case law shows that the state also permits annulment for other grounds, such as incurable insanity, impotence and pregnancy by another man at the time of marriage without the husband’s knowledge, as well as entering into marriage due to force, fraud or duress.
The court has the power to enforce its decree by divesting and reinvesting title to such property and, where deemed necessary, to order a sale of such property and to order the proceeds divided between the parties.
Marital property is legally 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, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date.
Marital property includes income from, and any increase in value during the marriage of property determined to be separate property if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vest and unvested stock option rights, retirement or other fringe benefits relating to employment that accrued during the period of marriage.
Marital property also includes recovery in personal injury, workers’ compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
Separate property is legally defined as follows:
- All real and personal property owned by a spouse before marriage, including assets held in IRAs;
- Property acquired in exchange for property acquired before the marriage;
- Income from and appreciation of property owned by a spouse before marriage, except when the parties substantially contributed to its preservation and appreciation;
- Property acquired by a spouse at any time by gift, bequest, devise or descent;
- Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
- Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
- The length of the marriage;
- The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
- The tangible or intangible contribution by one party to the education, training, or increased earning power of the other party;
- The relative ability of each party for future acquisitions of capital assets and income;
- The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as a homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
- The value of the separate property of each party;
- The estate of each party at the time of the marriage;
- The economic circumstances of each party at the time the division of property is to become effective;
- The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
- The amount of social security benefits available to each spouse; and
- Any other factors as are necessary to consider the equities between the parties.
The court may provide that any distributive award payable over a period of time be secured by a lien on specific property.
Alimony and Spousal Support
The court may award rehabilitative alimony, alimony in futuro (periodic alimony), transitional alimony, alimony in solido (lump sum alimony), or a combination of these.
Rehabilitative alimony is a separate class of spousal support, as distinguished from the other types of alimony that a court may award. It is intended to rehabilitate a spouse who is economically disadvantaged relative to the other spouse. To be rehabilitated means to achieve, with reasonable effort, an earning capacity that will permit the receiving spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.
An award of alimony in futuro or periodic alimony is a payment for support and maintenance on a long term basis or until death or remarriage of the recipient. It may be made, either in addition to an award of rehabilitative alimony, where a spouse may be only partially rehabilitated, or instead of an award of rehabilitative alimony, where rehabilitation is not feasible.
Alimony in futuro may be awarded when the court finds there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse.
Transitional alimony means a sum of money payable by one party to, or on behalf of, the other party for a determinate period of time. It is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded, such as a Petition for an order of protection.
Alimony in solido or lump sum alimony is a form of long term support, the total amount of which is calculable on the date the decree is entered, but which is not designated as transitional alimony. It may be awarded in place of or in addition to any other alimony award, in order to provide support, including attorney fees, where appropriate. Alimony in solido may be paid in installments, provided that the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded.
When determining whether to grant an order for alimony and if so, the nature, amount, length of term and manner of payment, the court shall consider the following relevant factors:
- The relative earning capacity, obligations, needs and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
- The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve his/her earnings capacity to a reasonable level;
- The length of the marriage;
- The age and mental condition of each party;
- The physical condition of each party, including physical disability or incapacity due to a chronic debilitating disease;
- The extent to which it would be undesirable for a party to seek employment outside the home, because he/she will be custodian of a minor child of the marriage;
- The separate assets of each party, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property;
- The standard of living of the parties established during the marriage;
- The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
- The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
- Any other factors, including tax consequences to each party, as are necessary to consider the equities between the parties.
Child Custody and Support
In a suit for annulment, divorce or separate maintenance, where the custody of minor children is in question, the court may award the care, custody and control of the children to either or both of the parties. Neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody is established, but the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child.
When making a determination for custody, the court shall consider all relevant factors, including the following:
- The love, affection and emotional ties existing between the parents or caregivers and the child;
- The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
- The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
- The stability of the family unit of the parents or caregivers;
- The mental and physical health of the parents or caregivers;
- The home, school and community record of the child;
- The reasonable preference of the child, if he/she is 12 years of age or older; and
- Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
- The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; and
- Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.
Unless the court finds by clear and convincing evidence to the contrary, there is a presumption that custody shall not be awarded to a parent who has been convicted of a criminal offense against a child less than 18 years of age.
After making an award of custody, upon the request of the non-custodial parent, the court shall grant visitation rights that will enable the child and the non-custodial parent to maintain a parent-child relationship unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.
When granting visitation, the court shall designate in which parent’s home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations and other special occasions.
If the court finds that the non-custodial parent has physically or emotionally abused the child, the court may require that visitation be supervised or prohibited until the abuse has ceased or until there is no reasonable likelihood that such abuse will recur.
If it is determined by the court that a parent has willfully abandoned a child for a period of 18 months, then, the abandoning parent’s residential time shall be limited, unless the court finds by clear and convincing evidence to the contrary.
Upon a dissolution of marriage, the court may make an order and decree for the suitable support and maintenance of the children by either spouse or out of such spouse’s property, according to the nature of the case and the circumstances of the parties.
Tennessee bases its child support guidelines on the Income Shares Model. The formula uses the combined adjusted gross income of both parents and the number of children for whom the child support order is being established. It shall include adjustments that account for each parent’s pro rata share of the child’s health insurance premium costs, uninsured medical expenses, and work-related childcare costs, as well as the parenting time of the Alternate Residential Parent, who has the child less of the time.
The court may impose a lien upon the marital real property assigned to a party, or upon such party’s separate real property, or both, as security for the payment of child support.
The court also has the power to grant an absolute divorce to either party where there has been an order of legal separation for more than two years upon a petition being filed by either party that sets forth the original order for legal separation and that the parties have not become reconciled. Additionally, it is possible for the court to grant an absolute divorce before the two-year period has expired.
Legal separation shall not affect the bonds of matrimony but shall permit the parties to cease matrimonial cohabitation. The court may provide for matters such as child custody, visitation, support and property issues during legal separation upon motion by either party or by agreement of the parties.
In all actions for legal separation, the court may equitably divide, distribute, or assign the marital property in whole or in part, or reverse the division or assignment of marital property until a later time. If the court makes a final distribution of marital property at the time of the decree of legal separation, any after-acquired property is separate property.
Links to State Resources
- Divorce Packet – Without Children
Divorce packet with information and forms for divorcing couples with no children and no or few property or assets.
- Income Shares Tutorial Page
Page provided by the Department of Human Services with helpful tools and links to explain the procedures involved in calculating child support obligations, including Rules, Child Support Schedule, and Child Support and Credit Worksheets.
- Tennessee Code, Title 36 – Domestic Relations
Links to text of Tennessee code regarding Domestic Relations, including Marriage, Divorce and Annulment, Alimony and Child Support, Child Custody and Visitation.
- Tennessee’s Parenting Plan
Information about the Tennessee Parenting Plan law for families to help make divorce easier. Includes link to download the statewide Permanent Parenting Plan Form with instructions.