Every divorce begins the same way: One person decides that they don't want to be married anymore. What happens after that can be smooth sailing, or a roller coaster ride for a family in the midst of a divorce.
Tennessee divorce laws are extensive, and they cover a number of things including how to dissolve a marriage and your property, alimony, child support, custody, and visitation. There are many many considerations in ending a marriage that will effect you, your spouse, and your children forever. But, what happens first?
1. File for divorce. Every divorce starts with what is called a Complaint for Divorce. In the complaint, the party filing for divorce asks for what they want. Of course, they ask to be divorced and for whatever other relief they want, such as custody of the children, awarding them property, awarding them alimony, child support, returning their maiden name, temporary or emergency matters, and any other thing they want from the divorce.
The trick of the complaint is that if you don't ask for something, you can't get it. But, you don't have to be super specific in what you ask for. For example, say that you want the court to award you alimony. If you don't ask for alimony in your Complaint, you don't get it. However, you don't need to ask for something as specific as $230.15 in alimony each month. Also, if your spouse doesn't answer your Complaint, you can get whatever you asked for in the complaint by default. So, the drafting of the Complaint is important.
2. Serving the Complaint. After a Complaint is filed, it has to be delivered to the Defendant (the other spouse). There are rules to how to serve process, and there are different ways to serve different Defendants in a divorce. One common myth is that if you don't know where your spouse is, you can automatically just serve them in the local paper. That isn't true. There are steps that you have to take before you can serve with publication.
If service of process isn't accomplished, or if it isn't accomplished correctly, you can't move forward with your divorce.
When service is accomplished, there is a 30 day time frame to answer the Complaint for divorce. If YOU are the one that was served, you need to answer within 30 days or a default can be filed against you and your spouse can win all of the things they asked for in the divorce.
When an answer is filed, that begins the litigation process.
3. Find out information. The formal name for this is called discovery. If it is needed, a series of questions will be asked of either or both spouses, and those questions are answered under oath and considered to be testimony. Those questions can be asked in written form, by deposition, or both. Discovery isn't needed if both parties agree on the terms of the divorce; however, if there is going to be a trial, discovery is most often necessary.
4. Mediation. Pursuant to law, mediation is required in Tennessee. If necessary, a mediator who is trained in family matters will assist you in settling your case. The purpose of mediation is to settle your case, but if after mediation your case is not settled, you can still go to trial. Nothing that is discussed in mediation can be used for or against either party at trial.
5. Trial. Truthfully, most divorces don't get to this step. They are settled at mediation or at some point before trial. If you get here, you've spent a lot of money so you need to be prepared. Keep in mind that whatever the judge decides in trial is the final word, so don't go to trial thinking that you will have an option to negotiate anything about your case once the judge rules. Going to trial never guarantees a certain outcome. Most people believe that once the Court hears their side of the story, they have a sure win. Don't count on that. The only certain outcome is one that you can agree upon with your spouse.
The steps above are generally what happens in a contested divorce, but that may not be your situation. In an Uncontested Divorce, things are different.
What Happens in an Uncontested Divorce?
You both agree to be divorced, and you both agree on how to separate your property and on how the children are going to be managed. What do you do now? Now, you file a complaint for divorce, and file the necessary documents, which are a Marital Dissolution Agreement (in all cases), and a Tennessee Permanent Parenting Plan (in cases with children). When the statutory waiting period of either 60 or 90 days has expired, a hearing will be held to complete your divorce. Only the person who filed the divorce needs to be present to testify at the hearing.
In some counties, a hearing is not required so long as the proper documents are submitted. Check with an attorney who regularly practices in your area on the process for an uncontested divorce.
What about A Contested Divorce?
There are two ways to be divorced in Tennessee: agree to be divorced because of irreconcilable differences, or allege grounds for divorce against your spouse in your Complaint for Divorce. The grounds for a contested divorce in Tennessee are:
- Habitual drunkenness or abuse of narcotic drugs;
- Living apart for two years with no minor children;
- Inappropriate marital conduct;
- Willful or malicious desertion for one full year without a reasonable cause;
- Conviction of a felony;
- Pregnancy of the wife by another before the marriage without the husband’s knowledge;
- Refusal to move to Tennessee with your spouse and living apart for two years;
- Malicious attempt upon the life of another;
- Lack of reconciliation for two years after the entry of a decree of separate maintenance;
- Impotency and sterility;
- Bigamy; and
- Abandonment or refusal or neglecting to provide for spouse although able to do so.
Here’s why grounds for divorce are important: If you and your spouse don’t agree to be divorced, then grounds must be proven. This meant that you must prove to the Court that you are entitled to be divorced and you’ll need a witness to agree with your story.
For example, say that you believe that your spouse has committed adultery and you decide to file for divorce on that ground. If your spouse agrees to the divorce, then you can both be divorced on the grounds of irreconcilable differences. However, if your spouse does not want to be divorced, or for some reason contests, then you will have to prove that your spouse committed adultery. If you cannot prove with clear and convincing evidence that your spouse committed adultery, then you cannot prove your grounds for divorce and you aren’t entitled to a divorce. Yes, that means that you stay married. This is true for any one of the grounds for divorce.
How do you prove the grounds? Well, you'll need evidence and a witness. In a trial, your lawyer will need evidence to present that is more than hearsay. Make sure that you keep a copy of anything that you think may be helpful to prove your grounds and give it to your attorney.
How is our Property Divided?
Contrary to popular belief, everything is not a 50/50 split in a divorce. The court will divide your property based on what is fair. That is called equitable distribution. It may be fair to divide everything 50/50, but it may also be fair for one spouse to keep the house and the other spouse to keep all the retirement. There is no one size fit all answer in divorces, a divorce is truly specific to the two people who are in the marriage.
There’s a process to determining how the property is divided.
1. Identify the assets. This means that both spouses need to list the assets that they both own, to include bank accounts, business interests, real property (land), personal property, and anything else that may be an asset.
2. Categorize. This is where we determine whether the property is marital property or separate property, depending on when and how the property was acquired. Most often, property that each party had before the marriage or property that given to one spouse as a gift or an inheritance during the marriage is separate property. Property that was acquired by either party during the marriage is marital property. This includes retirement, homes, cars, and any type of valuables.
3. The next step is to determine the value of the property. This can be as easy as how much is in a retirement or bank account, or the fair market value of a home, or as hard as how much a multi-million dollar business started by the parties is worth.
4. Now, the assets must be divided. Everything must be disposed of by being awarded to one spouse or the other. Again, this can be as easy as dividing a bank account, or as hard as dividing the value of stocks and bonds.
What About Alimony?
There are four kinds of alimony that a spouse can be awarded in Tennessee. They are:
- Rehabilitative Alimony. This type of alimony is generally awarded to spouses who have not been working, or those who do not have the ability to earn much income. Rehabilitative alimony is designed to help that spouse develop the ability to earn more money so that he or she will be able to enjoy a standard of living that is comparable to the other spouse.
- Periodic Alimony. This type of alimony is generally awarded to spouses who were part of a long marriage and are unable to enter the workforce at full capacity. Periodic alimony is designed to be paid over a long period of time, and can be awarded at the same time as rehabilitative alimony.
- Transitional Alimony. This type of alimony applies when the spouse doesn’t need to be rehabilitated, but needs time to adjust to the standard of living after the divorce.
- Lump Sum Alimony. This type of alimony is long term and is strictly for support.
Before awarding alimony, the Court considers twelve (12) factors:
- each spouse’s earning ability, obligations, needs, and financial resources (including from pension or retirement accounts);
- each spouse’s training and education, and whether they have the need and ability to obtain further education and training to improve their earning ability;
- the length of the marriage;
- the age and mental condition of each spouse;
- the physical condition of each spouse, including any physical incapacity due to a chronic disease;
- whether a spouse has custody of a minor child of the marriage and as a result, finds it difficult to work outside the home;
- each spouse’s separate property;
- how the court divided the marital property in the divorce or separation;
- the standard of living the spouses shared during the marriage;
- how each party contributed to the marriage financially or as a homemaker, and whether either spouse helped the other achieve training, education, or increased income;
- the fault of each spouse, if the court finds it appropriate to consider fault; and
- tax consequences of support payments to each spouse.
Alimony can be awarded temporarily in a divorce. In Tennessee, this is called “pendente lite” alimony (pronounced pen-den’-tay lite). There is no way to tell how much alimony will be awarded, but part of the reason for most pendente lite alimony awards is to maintain the status quo, meaning to keep up with existing mortgages and bills, to assist with personal living expenses, and to assist with attorney’s fees. However, the main rule of alimony is that one spouse has a need for support and the other spouse has the ability to pay. Both of these things must occur.
Alimony is always an important question in a divorce, so it is important that you understand how and what you are entitled to in your divorce. It can also be difficult to determine, so make sure that if alimony is an issue for you or your spouse, you select an attorney that is well-versed in this subject.
How is Custody Decided if we can't Agree?
There are custody factors that the court must consider in awarding custody in a divorce. They are:
(1) The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
(2) 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. In determining the willingness 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, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between each parent and the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
(9) The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
(14) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
As you can see, the Court has to make a lot of considerations on all of the issues in your divorce. Very few, if any, issues are left up to the Court's sole discretion to be used without any guidance. You need guidance, as well. Searching this site is a great way to gain common knowledge on divorce laws in Tennessee and on how things work in divorce practice. Use it to prepare yourself for your own proceedings and to help in your discussions with the lawyer of your choice.
Frequently Asked Questions About TN Divorce
+ When can I file for divorce?
When you have lived in the State of Tennessee for 6 months, you are a resident and you can file for divorce in the county where you live. It doesn't matter how long you have been married, you can file for divorce at any time during your marriage.
+ How long does it take?
A divorce without children has to be on file for at least 60 days. A divorce with children has to be on file for at least 90 days. A contested divorce won't be over soon. Plan for a minimum of six months for the completion of a contested divorce.
+ Will I have to appear in court?
If you are the person who filed the divorce, you will have to go to court and provide testimony even if a settlement is reached. If you are the Defendant and a settlement is reached, you may not have to appear. If a settlement is not reached, both parties must appear in court.
+ Do I have to hire a lawyer?
No, you don't. However, you probably should. If you have an uncontested divorce, forms and instructions are available online at tncourts.gov.Your local clerk may also be able to give you guidance on where to go and what forms to fill out. Remember, there are many forms that need to be submitted and langauge needs to be specific. So, if you are considering doing your own divorce, it won't be simple and it will take a lot of tries. If you have a contested divorce, it's simply best to get help.
+ How much will this cost?
No one can determine how much a contested divorce will cost. However, there are some firms that do contested divorces for a flat fee. For some couples, divorce is not expensive, but for others it can be. Some factors depend on how many assets you have, how your spouse reacts to the divorce, who is hired by your spouse, whether experts will be needed, and mostly how agreeable the two of you will be.
+ Can a contested divorce turn into an uncontested one?
Yes. Anytime you and your spouse agree to be divorced and on the terms, your divorce can be concluded without a trial. As long as the two of you can submit an agreed marital Dissolution Agreement (MDA) and parenting plan, you can be divorced without proving grounds.
+ Is a divorce public record?
Yes, anything that is filed with the clerk in your divorce case is public record.
+ Can I change my name?
A woman can ask that her name be changed in a divorce, and it is up to the Courts whether they will allow it. Sometimes, if there are children involved that carry the last name of both the mother and father, it may not be allowed.
+ What will happen to my pets?
In Tennessee, pets are property. To a judge, they are not family. If you can't agree on what to do with your pet, the judge will award them to one person or the other. Some people even consider a visitation arrangement for pets, as well.
+ What if I am not a US Citizen?
U.S. Citizenship is not required for divorce in Tennessee.
+ Can we get back together after filing for divorce?
Yes. In fact, it is encouraged. If you decide to reconcile, the court can suspend your divorce proceedings , or you can dismiss your case.
+ When can I remarry after my divorce?
When your divorce has been final for 30 days, you can remarry.