Thursday, July 2, 2009

Tennessee Divorce Laws

Residency Requirements for Divorce in Tennessee
The spouse seeking divorce must have been a resident of Tennessee when the grounds for divorce arose. If the grounds for divorce arose outside of Tennessee and the petitioner resided outside of Tennessee, either spouse must have been a resident for 6 months prior to filing. The divorce may be filed for in any of the following counties: (1) the county in which both spouses lived at the time of their separation; (2) the county in which the respondent lives if he or she is a resident of Tennessee; or (3) the county in which the petitioner lives if the respondent is a non-resident of Tennessee.

Legal Grounds for Divorce in Tennessee
  1. No Fault Divorce:
    1. Irreconcilable differences if:
      • there has been no denial of this ground
      • the spouses submit a properly signed marital dissolution agreement
      • this grounds for divorce is combined with a general fault-based grounds
    2. living separate and apart without cohabitation for 2 years when there are no minor children
  2. General Divorce:
    1. Impotence
    2. adultery
    3. conviction of a felony and imprisonment
    4. alcoholism or drug addiction
    5. wife is pregnant by another at the time of marriage without husband's knowledge
    6. willful desertion for 1 year
    7. bigamy
    8. endangering the life of the spouse
    9. conviction of an infamous crime
    10. refusing to move to Tennessee with a spouse and willfully absenting oneself from a new residence for 2 years
    11. cruel and inhuman treatment or unsafe and improper marital conduct
    12. indignities that make the spouse's life intolerable
    13. abandonment, neglect, or banning the spouse from the home

Legal Separation in Tennessee
The grounds for legal separation (divorce from bed and board) are the same as for a divorce. If the legal separation has been in effect for 2 years and the spouses have not reconciled, either spouse may request that the separation be converted to an absolute divorce.

Simplified/Special Divorce Procedures in Tennessee
If the divorce is based on irreconcilable differences, the spouses may enter into a notarized marital settlement agreement. The agreement must:

  1. make specific reference to a pending divorce by the name of the court and the docket number (or)
  2. state that the respondent is aware that a divorce will be filed for in the state of Tennessee (and)
  3. state that the respondent waives service of process and waives filing an answer
The waiver of service will be valid for 120 days after the respondent signs the agreement and will constitute a general appearance by the respondent and give the court personal jurisdiction over the respondent and will constitute a default judgment. The petition for divorce must have been on file for over 60 days before a hearing will be held if the spouses have no minor children and 90 days if they have any minor children. The spouses must make adequate and sufficient provisions in their marital settlement agreement for the care and custody of any minor children and for an adequate settlement of their property. The spouses may also make provisions in their settlement for alimony. A final decree may be entered without any corroborating proof or testimony by the petitioner or respondent. If the respondent contests or denies that there are irreconcilable differences, a divorce may not be granted on those grounds, unless there is a valid marital settlement agreement. Some counties may require the respondent to sign any appearance and waiver form before the court clerk for it to be valid. In addition, in any petition for divorce, the wife's maiden name must be stated and the race and color of each spouse must be stated. Financial affidavits may also be required.

Divorce Mediation in Tennessee
Upon request, the court may delay a divorce proceeding to allow an attempt at reconciliation. In addition, in those cases which involve child custody considerations, the court may order either or both parents to an educational seminar concerning the effects of divorce on children.

Divorce Property Distribution
Tennessee is an "equitable distribution" state. The separate property of each spouse is retained by that spouse. Separate property is property that was:

  1. acquired prior to marriage
  2. by gift or inheritance
  3. in exchange for any separate property
  4. obtained from income or appreciation of separate property, if the other spouse did not contribute to the preservation and appreciation
The marital property, including:
  1. any property acquired during the marriage by either spouse
  2. any increase in value of any property to which the spouses contributed to the upkeep and appreciation
  3. any retirement benefits
is divided by the court, without regard to any marital fault, and after a consideration of the following factors:
  1. the contribution of each spouse to the acquisition, preservation, appreciation, or dissipation of the marital property, including the contribution of each spouse as homemaker, wage-earner, or parent
  2. the value of each spouse's property at the time of the marriage and at present
  3. the economic circumstances of each spouse at the time the division of property is to become effective
  4. the length of the marriage
  5. the age and health of the spouses
  6. the vocational skills of the spouses
  7. the liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income
  8. the federal income tax consequences of the court's division of the property
  9. the present and potential earning capability of each spouse
  10. the tangible and intangible contributions made by 1 spouse to the education, training, or increased earning power of the other spouse
  11. the relative ability of each party for the future acquisition of capital and income
  12. the employability and earning capacity of the spouses
  13. any social security benefits
  14. any other factors necessary to do equity and justice between the spouses

Alimony and Spousal Support
Spousal support may take the form of lump sum, periodic, or rehabilitative support. Tennessee favors rehabilitative support; however, if this is not feasible, the court may grant long-term alimony until the death or remarriage of the supported spouse. Spousal support may be awarded to either spouse, based on a consideration of the following:

  1. the value of any separate property and the value of the spouse's share of any marital property
  2. whether the spouse seeking alimony is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment
  3. the need for sufficient education and training to enable the spouse to find appropriate employment
  4. the standard of living during the marriage
  5. the duration of the marriage
  6. the comparative financial resources of the spouses, including their comparative earning abilities in the labor market and any retirement, pension, or profit-sharing benefits
  7. the needs and obligations of each spouse
  8. the tangible and intangible contributions of each spouse to the marriage, including services rendered in homemaking, childcare, and contributions to the education, earning capacity, and career-building of the other spouse
  9. the relative education and training of the spouses and the opportunity of each party to secure education and training
  10. the age of the spouses
  11. the physical and mental condition of the spouse
  12. the tax consequences to each spouse
  13. the usual occupation of the spouses during the marriage
  14. the vocational skills and employability of the spouse seeking alimony
  15. the conduct of the spouses during the marriage
  16. any other factor the court deems just and equitable
The court may require that spousal support payments be made through the clerk of the court. Spousal support payments may include expenses of job training and education.

Spouse's Name After Divorce
There is no statutory provision in Tennessee for the restoration of a wife's name upon divorce. However, case law provides that a wife may resume the use of her former or maiden name

Child Custody After Divorce
Joint or sole custody is awarded according to the best interests of the child and considering the child's preference. There is a presumption that joint custody is in the best interests of the child when the parents have an agreement to that effect or agree in open court to joint custody. There is no presumption that either parent is more suited to obtain custody. However, if the child is of tender years, the sex of the parent seeking custody is a factor which may be taken into consideration. Custody will be granted based on the best interests of the child and a consideration of the following:

  1. the love, affection, and emotional ties between the parents and child
  2. the importance of continuity and the length of time the child has lived in a stable and satisfactory environment
  3. whether there has been any domestic violence or physical or mental abuse to the child, spouse, or any other person and whether a parent has had to relocate to avoid such violence
  4. the stability of the family unit
  5. the mental and physical health of the parents
  6. the home, school, and community record of the child
  7. the reasonable preference of a child over 12 years of age
  8. the character and behavior of any person who lives in or visits the parent's home and such person's interactions with the child
  9. each parent's past and potential performance of parenting duties, including a willingness and ability to facilitate and encourage a close and continuing parent-child relationship with the other parent

Child Support After Divorce
Either or both of the parents may be ordered to provide child support. The factors for consideration are as follows:

  1. the financial resources of the child
  2. the standard of living the child would have enjoyed if the marriage had not been dissolved
  3. the physical and emotional conditions and educational needs of the child
  4. the financial resources, needs, and obligations of the parents
  5. the earning capacity of each parent
  6. the age and health of the child
  7. the monetary and non-monetary contributions of each parent to the well-being of the child
  8. any pension or retirement benefits of the parents
  9. whether the non-custodial parent's visitation is over 110 days per year or under 55 days per year
  10. any other relevant factors
The court may require that health insurance coverage be provided for the child or that the spouse to who is to pay the support maintain a life insurance policy for the benefit of the child. The court can require that the child support payments be paid through the clerk of the court. The posting of bond, wage assignments, and wage withholding may also be ordered. There are official Tennessee Supreme Court child support guidelines which are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances of the case. Standardized forms for determining child support are also available.

1 comment:

CPSL said...

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