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- Marital Property in Tennessee
Residency Requirement for Tennessee Divorce
A divorce in Tennessee may be granted if the plaintiff or the defendant has resided in the state of Tennessee for six months preceding the filing of the Complaint.
How to Begin the Divorce Process in Tennessee
The divorce process is started by one spouse filing the “Complaint.” The spouse who files the Complaint is called the plaintiff. The other spouse is the defendant.
The Complaint and Summons must be served on the other party. This gives the defendant actual notice that the divorce has been filed. There are several ways to serve your spouse. Your attorney will explain which method of service is best for you.
The Complaint contains certain statistical information and alleges grounds for divorce. After the defendant is served, the next step is for the defendant to file an Answer. The defendant is required to file an Answer within 30 days. The defendant may also file a Counter-Complaint. If a Counter-Complaint is filed, it must also be answered.
Under Tennessee law, if the Complaint alleges fault based grounds (described below), a temporary mandatory injunction can be issued. The Mandatory Injunction prevents either party from dissipating marital assets, threatening harm to each other, and has provisions dealing with children of divorce.
At this point in the divorce process, your attorney will discuss with you the need to issue discovery and or take depositions. Discovery is composed of Interrogatories, which are questions your spouse must answer under oath, and Request for Production of Documents, which requires your spouse to produce certain documents.
Grounds for Divorce in Tennessee
In Tennessee, we have 2 types of divorces: uncontested, which is usually irreconcilable differences, and contested, which requires proof of grounds for divorce.
With a contested divorce, the parties cannot agree and must go to trial. Under Tennessee law, the grounds for a contested divorce are:
2) Habitual drunkenness or abuse of narcotic drugs
3) Living apart for 2 years with no minor children
4) Inappropriate marital conduct
5) Willful or malicious desertion for one full year without a reasonable cause
6) Conviction of a felony
7) Pregnancy of the Wife by another before the marriage without the Husband’s knowledge.
8) Refusal to move to Tennessee with your spouse and living apart for 2 years.
9) Malicious attempt upon the life of another
10) Lack of reconciliation for 2 years after the entry of a decree of separate maintenance
11) Impotency and sterility
13) Abandonment or refusal or neglecting to provide for spouse although able to do so.
In reality, most cases settle and are granted on the grounds of irreconcilable differences. If your case is unlikely to settle, your attorney will talk to you extensively about grounds, burden of proof, and any available defenses.
Tennessee Property Division
In a divorce action, marital property is divided; separate property is not.
Property division is the term used by courts and lawyers for describing this process. Property division requires that all property be identified, classified, and valued.
Tennessee is an equitable distribution state. This means that once property is classified as marital or separate, the trial court must divide marital property equitably according to the factors listed in T.C.A. § 36-4-121(c).
An equitable division does always mean an equal division of property. In other words, marital property will not always be divided 50/50. Also, equitable division does not mean each party will receive a share of every piece of marital property. Sometimes a court will give an entire asset to one spouse.
A trial court will classify all property as either marital or separate. Property acquired during the marriage is marital property. When classifying marital property, record title is not always determinative. Separate property, also known as non-marital property, generally consists of all real and personal property owned before marriage, gifts, and inheritances.
As stated above, only marital property is divided. Each spouse will keep his or her separate property. Under Tennessee law, the following factors are considered by the court in equitably dividing marital property:
1) The duration of the marriage;
2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
4) The relative ability of each party for future acquisitions of capital assets and income;
5) 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 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; (who contributed more, who performed marital role more, and why)
6) The value of the separate property of each party;
7) The estate of each party at the time of the marriage;
8) The economic circumstances of each party at the time the division of property is to become effective;
9) 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;
10) The amount of social security benefits available to each spouse; and
11) Such other factors as are necessary to consider the equities between the parties.
Tennessee law considers each spouse’s separate property in determining property division. If one spouse has substantially more separate property, the other spouse is likely to be awarded a greater division of marital property.
Under Tennessee law, it is possible for one spouse’s separate property, or the appreciation of that separate property, to become marital property. The income from and appreciation of separate property during the marriage may be classified as marital property if the non-owning spouse proves that both spouses substantially contributed to its preservation and appreciation.
Also, under Tennessee common law there are two ways that separate property becomes marital property. The first way that separate property becomes marital is by commingling.
Commingling occurs when separate property is inextricably mingled with marital property or with the separate property of the other spouse. If separate property is treated as marital property, a presumption arises that there has been a gift of the separate property to the marital estate. Tennessee also recognizes transmutation as a method in which separate property becomes marital.
According to the Tennessee Supreme Court transmutation occurs when “separate property is treated in such a way as to give evidence of an intention that it becomes marital.” Transmutation, commingling, and the appreciation of separate property are complex property division issues that do not arise in every divorce. If relevant, your attorney will explain these concepts to you in detail.
Alimony and Spousal Maintenance in Tennessee
Alimony can only be awarded at the time of divorce. There are four types of alimony in Tennessee: alimony in futuro, rehabilitative alimony, transitional alimony, and alimony in solido.
Alimony in futuro is usually awarded in long term marriages and can be awarded until death or remarriage.
Rehabilitative alimony is awarded to help a spouse “rehabilitate” him or herself. This often means returning to school or obtaining job skills.
Transitional alimony is awarded to assist the economically disadvantaged spouse adjust to life after divorce.
Finally, alimony solido is a form of property division. Your attorney will discuss with you the particulars of each type of alimony and whether they apply to your divorce.
Tennessee courts generally state that the two most important considerations in determining alimony are need and ability to pay. Tennessee law lists the following factors for courts to consider:
1) 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;
2) 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 such party’s earning capacity to a reasonable level;
3) The duration of the marriage;
4) The age and mental condition of each party;
5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic, debilitating disease;
6) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
7) The separate assets of each party, both real and personal, tangible and intangible;
8) Marital property division;
9) The standard of living of the parties established during the marriage;
10) 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;
11) The relative fault (who is more to blame) of the parties in cases where the court, in its discretion, deems it appropriate to do so; and
12) Such other factors, including the tax consequences to each party, as are necessary.
Parenting Plan in Tennessee
In Tennessee, a “Permanent Parenting Plan” is required for parents to get divorced. The Permanent Parenting Plan (or PPP) lists the rights and obligations of each parent. The PPP is very detailed. It is written on a court approved form.
However, the PPP can be created to fit your families’ needs. The PPP lays out which parent has decision-making authority. The parents can have joint decision-making authority or one parent can decide.
The PPP lists which parent the children will spend time with during the weekdays, weekend, and holiday. It lays out the specifics of how and when the children will be transported. It also lists each parent’s financial obligations – such as child support, educational expenses, and uncovered medical expenses. The PPP lists which parent will provide health insurance for the minor children.
The PPP also mandates how the parents will resolve disputes regarding the PPP. Further, the PPP lists each parent’s rights – which include the right to telephone calls with the children, the rights to medical records and the right to school records. If you are interested in knowing your other rights as a parent, be sure to ask your attorney for a copy.
In Tennessee, both parents must attend a parenting education seminar lasting at least four (4) hours.
Hopefully, parents will be able to reach an agreement regarding the permanent parenting plan. If parents are unable to agree, the parties and their attorneys will attend some form of alternative dispute resolution. Generally, this means mediation.
If the parties are still unable to reach an agreement, the parties will proceed to trial to consider the equities between the parties.