Throughout my legal career, a significant portion of my practice has focused on divorce representation. Divorce law is comprised of an extremely wide array of factual and legal scenarios that require someone with experience in the field. Similarly, the cost and time investment in each divorce can vary greatly between individuals and courts. It is important to retain counsel who will properly identify the issues and assist you in navigating what is an extremely turbulent time for most people, emotionally, financially, and even professionally. Having said as much, there are a number of issues that should be considered when contemplating your divorce proceedings. The following discussion gives a brief treatment of some of those issues and is intended to provide some idea of what may be encountered, and not to be relied upon by the reader as legal advice.
FILING FOR A DIVORCE IN TENNESSEE:
You can file for a divorce in Tennessee if: 1) the grounds for divorce occurred while the plaintiff was a resident of Tennessee; 2) if the grounds for divorce occurred outside of the state, either person must have resided in Tennessee for 6 months prior to the filing of the complaint; and 3) military personal must be a resident of the state for at least one year prior to filing.
The petition for divorce must be filed in the chancery or circuit court (though some smaller counties allow divorces in general sessions court) in the county where the parties reside at the time of their separation, or in either the county where the defendant resides, or where the plaintiff resides if the defendant is a non-resident of the state or a convict.
[Tennessee Code Annotated, § 36-4-104 and § 36-4-105]
LEGAL GROUNDS FOR DIVORCE:
You may be granted a divorce (or annulment) in Tennessee on the following grounds:
- Irreconcilable differences between the parties (the typical grounds for a divorce that is completely agreed)
- A two year period of separation, without cohabitation, if there are no minor children involved.
- Impotence (note that I have never seen a divorce granted on this grounds, but I am open to trying).
- Willful desertion for one whole year.
- Conviction of an infamous crime, or sentenced to confinement in a penitentiary for a felony.
- Inappropriate marital conduct, also known as cruel and inhuman treatment ( this often acts as a “catchall” in a contested divorce scenario).
- Attempting to take the life of the other.
- Refusal to move to this state, and being willfully absent from the spouse residing in Tennessee for two years.
- Wife was pregnant at the time of the marriage, by another person, without the knowledge of the husband.
- Habitual drunkenness or drug abuse after the marriage.
- Indignities that render the spouse’s position intolerable, and force the spouse to withdraw.
- Abandonment and refusal to provide for the spouse while having the ability to do so.
[Tennessee Code Annotated § 36-4-101]
The grounds to file a complaint for a legal separation are the same as for a divorce. The court can address matters such as child custody, visitation, support and property issues during legal separation upon motion by either party or by agreement of the parties. The court has the power to grant an absolute divorce to either party if there has been an order of legal separation for more than two years, the parties have not reconciled, and a petition is filed by either party for an absolute divorce, but may also do so prior to the two year period if one party files for an absolute divorce before the completion of that period.
[Tennessee Code Annotated § 36-4-102]
In Tennessee, there is a highly specific set of circumstances required to grant an annulment. In order to be eligible for an annulment in Tennessee, the marriage must have been void due to public policy or voidable at the discretion of the party determined to be the victim. A marriage void due to public policy is generally one of three situations: a homosexual marriage, an incestuous marriage, or a bigamous marriage. A marriage voidable at the discretion of the victim party is usually voidable because consent to marriage was not properly available. This can arise due to an underage party, duress, mistake, or lack of capacity to contract. A marriage can also be voidable due to impotence in some situations, or if the woman becomes pregnant by a man other than her husband without her husband’s knowledge.
A void marriage is treated by the state of Tennessee as if it had never occurred, and is eligible for annulment. A voidable marriage is treated by the state of Tennessee as if it had occurred, but should not have and can be eliminated legally as if it had never occurred. Annulment is not so much a form of ending a marriage but a method of giving official and legal recognition of a false marriage.
In most situations, parties to a divorce ask for an annulment because they regret the decision to marry. If that decision was made knowingly by two non-related single adults of opposite gender with the capacity to contract, an annulment is probably not available.
Prior to a divorce being filed, it is important for both parties to consider the various issues that will come into play when either attempting to reach an agreement or litigating their case before the court. It is important to remember that the court will accept an agreement on some issues, even if you cannot agree on everything. Often, parties refuse to agree on any issues as they view all issues as intertwined for purposes of leverage against the opposing party. This may be the case in some instances, but it can also lead to increased litigation costs and exasperation on the part of the court so such stances must be carefully considered and litigated with caution.
By statute, Tennessee is an equitable distribution state that divides the marital property equitably without regard to marital fault. Marital property is all property acquired during the marriage by either party, regardless of whose name is on the title. Marital property may often include, but is not limited to real estate, vehicles, boats, financial accounts, investments, livestock, retirement accounts, jewelry, interest in a business, partnership, corporation, etc., household furnishings, personal property, artwork, and even family pets. Many people mistakenly believe equitable means even or equal, which is not the case. The principles of equitable distribution are broad and, in Tennessee, are based on the factors listed herein-below. While many times, courts will attempt to effectuate a 50/50 split, the law provides for an equitable distribution of property.
The court shall consider the following factors when determining an equitable distribution of the marital property:
- Length of the marriage.
- Age, physical and mental health, employability, and financial needs of each spouse.
- Contribution of one spouse to the education or increased earning power of the other spouse.
- Relative ability of each spouse to obtain future employment and asset acquirement.
- Contributions of each spouse as a homemaker, wage earner, or parent.
- Value of the separate property of each spouse.
- Economic circumstances of each spouse at the time of the divorce.
- Tax consequences of the proposed property settlement.
- Social security benefits available to each spouse.
- Any other factors relevant to an equitable distribution settlement. (Obviously, this is broad and provides courts with some latitude in their awards).
[Tennessee Code Annotated § 36-4-121]
Property acquired before the marriage or after a legal separation, inheritances and gifts, and pain and suffering awards are considered separate property. However, it must be noted that such funds, if such separate property is used to purchase other property, or transformed in nature through conversion into other assets or investments, it may be treated as marital assets through a principle known as “transmutation.” Many people mistakenly believe that property acquired after the filing of their divorce is separate, however it is important to note that property acquired up to the date of the final divorce hearing may be treated as marital property. Additionally, the court has the power to retroactively determine certain transactions disposing of marital property, prior to and during the divorce, to be fraudulent and either declare them void, or adjust its property distribution, accordingly.
Similar to the distribution of marital property, Tennessee courts are charged with the equitable distribution of marital debt. Marital debt is debt acquired by the parties during the marriage. It is important to note that any agreement between the parties or order of the court, as to how marital debt should be divided, is not binding on their creditors. Creditors may go after one party for collection of the indebtedness, despite an agreement or order stating the other party is responsible for that debt. As such, the remedy to that party is to file for post-divorce relief against the other party for failing to abide by the terms of the agreement between the parties. Marital debt often includes, but is not limited to mortgages, loans, credit cards, medical bills, student debt and other indebtedness incurred through contracts with third parties.
The court may award alimony to be paid by one spouse to the other, or out of either spouse’s property, according to the nature of the case and the circumstances of the parties. The court may award rehabilitative alimony, periodic alimony, transitional alimony, or lump sum alimony, or a combination of these. Tennessee courts currently favor rehabilitative alimony as a means to assist an economically disadvantaged spouse in acquiring additional education or training which will enable the spouse to achieve a standard of living comparable to the standard of living that existed during the marriage or the post-divorce standard of living expected to be available to the other spouse. Rehabilitative alimony thus serves the purpose of assisting the disadvantaged spouse in obtaining additional education, job skills, or training, as a way of becoming more self-sufficient following the divorce. This purpose is markedly different than the purpose of alimony in futuro, which is to provide long-term support when the economically disadvantaged spouse is unable to achieve self-sufficiency.
Any or all of the following factors may be taken into consideration of the nature, amount, length of time, and manner of payment in awarding alimony, in Tennessee:
- Relative earning capacity, obligations, needs, and financial resources of each party , including pension, profit-sharing or retirement plans;
- 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 such party’s earnings capacity to a reasonable level;
- Length of the marriage;
- Age, mental, and physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
- Whether the custodial parent is unable to work outside the home due to the care of a minor child.
- Separate assets of each party;
- Distribution of marital property as previously stated herein-above;
- Standard of living established during the marriage;
- Marital contributions, such as monetary contributions or as a homemaker contributions, and contributions by one party to the education, training or increased earning power of the other party;
- The fault of each party;
- Any other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties;
[Tennessee Code Annotated § 36-5-101]
Generally, I would begin any discussion of divorce with child custody considerations, as that is the most important issue for parents of minor children involved in a divorce situation. For purposes of this informative discussion, I chose to begin with property concerns, as many people do not have minor children with their spouses. Having said that, child custody and support are often the most difficult issues to agree upon, as both parents love their children deeply and desire as much time with them as possible.
As part of their determination of child custody, Tennessee courts require the entry of a parenting plan. Parenting plans can be both temporary, providing for the care, custody and support of the child during the divorce, and permanent, which are intended to remain in effect until the child reaches majority, unless later modified by a court of jurisdiction. In making custody determinations, Tennessee courts base the same on the “best interests of the child” and in doing so will consider the following relevant factors:
- Emotional ties, love, and affection between the parents and the child;
- Ability of the parents to provide adequately for the child and the degree to which a parent has been primary caregiver for the child;
- The quality of the child’s adjustment to the child’s present environment, including the home, school, and community, provided there is no evidence of child abuse;
- The stability of the family unit, as well as the mental and physical health of the parents;
- The preference of the child if 12 years of age or older. The court may also hear the preference of a younger child upon request, but it will not be given as much weight as that of an older child;
- Evidence of abuse to the child, the other parent, or any other person;
- Character of any other person who resides with or frequently interacts with the child;
- Parenting abilities of each parent, including their willingness to encourage a close and continuing relationship between the child and the other parent.
It is important to note that child custody is often modified by the divorce court or another court having proper jurisdiction based on a material change in circumstances between the parties.
[Tennessee Code Annotated § 36-6-106]
Child support in Tennessee is based on the Income Shares Model, and the provisions are outlined in the Tennessee child support guidelines. Courts will generally require child support to be included in setting a parenting plan, as well as an Income Shares Worksheet demonstrating the calculation of that support. In order to calculate the proper support, there is a program that can be downloaded to the desktop known as the “Tennessee Income Shares Child Support Calculator.” The formula is based on a number of factors, but generally the program takes the following into consideration:
- Number of days the child spends with each parent;
- Income or imputed earning capacity of each parent (evidence of income and the earning capacity of the parties are often contested issues determined by the court);
- Cost of health care, daycare, and other recurring expenses;
- Additional children not of the marriage, either in the residence of the parent, or outside of the residence of the parent, for whom, the parent may have a child support obligation.
The court may require health insurance coverage for each child of the marriage, with either party to pay all, or each party to pay a pro rata share of, the health care costs not paid by insurance proceeds.
[Tennessee Code Annotated §§ 36-5-101(e), 71-1-105(15), and 71-1-132]