Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Tennessee have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
GROUNDS FOR DIVORCE AND SEPARATION REQUIREMENT
States like Tennessee requires parties to live apart for a minimum length of time (2 years – see separation requirements below) before seeking a no-fault divorce. Irreconcilable differences may be asserted as a sole ground for divorce or an alternate basis for divorce with an action cause.
FOR CAUSE STATUTORY GROUNDS FOR DIVORCE
The following is a for-cause statutory basis for divorce: Impotence; Bigamy; Adultery; Willful desertion for one whole year; Conviction of an infamous crime or sentenced to confinement in a penitentiary for a felony; Cruel or inhuman treatment that makes cohabitation unsafe; 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; The woman 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.
RESIDENCY REQUIREMENTS
The plaintiff must be a resident of this state, or if the grounds for divorce occurred outside of the state, either the party must have resided in the state for six months preceding the complaint filing. Military personnel must be a resident of the state for at least one year before filing. The petition must be filed in the chancery or circuit court in the county where the parties reside at the time of their separation or in either the country where the defendant resides or where the applicant resides.
LEGAL SEPARATION
For a continuous period of two or more years (that commenced before 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.
The grounds to file a complaint about 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 either party for an absolute divorce files a petition.
PROPERTY DISTRIBUTION
Tennessee is an equitable distribution state that divides marital property equitably without regard to marital fault. Marital property is all property acquired during the marriage, regardless of whose name is on the title. Property acquired before the marriage or after legal separation, inheritances, gifts, and pain and suffering awards are considered separate property.
The court will consider many equitable factors, including:
- The length of the marriage;
- The age, physical and mental health, employability, and financial needs of each spouse;
- The contribution of one spouse to the education or increased earning power of the other spouse;
- The relative ability of each spouse for future employment and asset acquirement;
- Contributions as a homemaker, wage earner, or parent;
- The value of the separate property of each spouse;
- The economic circumstances of each spouse at the time of the divorce
- The tax consequences of the proposed property settlement;
- The social security benefits available to each spouse; and any other factors relevant to an equitable distribution settlement.
Note: The court may award the family home and effects, or the right to live there for a reasonable period, to either party but shall give special consideration to the spouse having physical custody of a child or children of the marriage.
ALIMONY-MAINTENANCE SUPPORT
According to the nature of the case and the parties ‘ circumstances, the court may award alimony for being paid by one spouse to the other or out of either spouse’s property.
The court may award rehabilitative alimony, periodic alimony, transitional alimony, or lump sum alimony, or a combination of these, considering the following factors:
- The relative earning capacity, obligations, needs, and financial resources of each party;
- The relative earning capability of each party and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;
- The duration of the marriage;
- The age, mental, and physical condition of each party, including, but not limited to, physical disability or incapacity due to chronic debilitating disease;
- Whether the custodial parent is unable to work outside the home due to the care of a minor child; (
- The separate assets of each party;
- The property was apportioned to the party;
- The standard of living established during the marriage;
- The contributions as a homemaker and to the education, training, or increased earning power of the other party;
- The relative faulty of the parties;
- Any other factors, including the tax consequences to each party, are necessary to consider the equities between the parties.
SPOUSE’S NAME
There is no provision in the Tennessee Code for the restoration of a wife’s name upon divorce. However, a wife may resume the use of her former or maiden name after a divorce.
CHILD CUSTODY
The court may award custody to either parent or both parents in the case of joint custody or shared parenting based on the best interests of the child, considering the following factors:
- The emotional ties, love, and affection between the parents and the child;
- The ability of the parents to provide adequately 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 is 12 years of age or older. The court may also hear the choice 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;
- The character of any other person who resides with or frequently interacts with the child;
- The parenting abilities of each parent, including their willingness to encourage a close and continuing relationship between the child and the other parent.
CHILD SUPPORT
Child support in Tennessee is based on the “Income Shares” Model. Learn how Tennessee enforces and calculates Child Support. The factors may include court 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
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
