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Tennessee Family Law
and Divorce Resource
Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.
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 6 months preceding the filing of the complaint. Military personal must be a resident of the state for at least one year prior to 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 GROUNDS FOR DIVORCE: The following are causes of divorce from the bonds of matrimony: (1) Irreconcilable differences between the parties; (2) A two year period of separation, without cohabitation, if there are no minor children involved; (3) Impotence; (4) Bigamy; (5) Adultery; (6) Willful desertion for one whole year; (7) Conviction of an infamous crime, or sentenced to confinement in a penitentiary for a felony; (8) Cruel or inhuman treatment that makes cohabitation unsafe; (9) attempting to take the life of the other; (10) Refusal to move to this state, and being willfully absent from the spouse residing in Tennessee for two years; (11) The woman was pregnant at the time of the marriage, by another person, without the knowledge of the husband; (12) Habitual drunkenness or drug abuse after the marriage; (12) Indignities that render the spouse's position intolerable, and force the spouse to withdraw; and (13) Abandonment and refusal to provide for the spouse while having the ability to do so. [Based on Tennessee Code - Title 36, Sections 36-4-101]
LEGAL SEPARATION: 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 either party for an absolute divorce files a petition. [Based on Tennessee Code - Title 36, Sections 36-4-102] » Return to top
PROPERTY DISTRIBUTION: Tennessee is an equitable distribution state that divided the marital property equitably without regard to marital faulty. Marital property is all property acquired during the marriage, regardless of whose name is on the title. Property acquired before the marriage or after a legal separation, inheritances and gifts, and pain and suffering awards are considered separate property. The court shall consider the following factors when determining an equitable distribution of the marital property: (1) the length of the marriage; (2) the age, physical and mental health, employability, and financial needs of each spouse; (3) the contribution of one spouse to the education or increased earning power of the other spouse; (4) the relative ability of each spouse for future employment and asset acquirement; (5) contributions as a homemaker, wage earner, or parent; (6) the value of the separate property of each spouse; (7) the economic circumstances of each spouse at the time of the divorce (8) the tax consequences of the proposed property settlement; (9) the social security benefits available to each spouse; and (10) any other factors relevant to an equitable distribution settlement.
The court may award the family home and effects, or the right to live there for a reasonable period of time, to either party, but shall give special consideration to the spouse having physical custody of a child or children of the marriage. [Based on Tennessee Code - Title 36, Sections 36-4-121]
ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: 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, taking the following factors into consideration: (1) The relative earning capacity, obligations, needs, and financial resources of each party; (2) The relative earning capability of each party, and the necessity of a party to secure further education and training to improve such party's earnings capacity to a reasonable level; (3) The duration of the marriage; (4) The age, mental, and physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease; (5) Whether the custodial parent is unable to work outside the home due to the care of a minor child; (6) The separate assets of each party; (7) the property apportioned to the party; (8) The standard of living established during the marriage; (9) The contributions as a homemaker and to the education, training or increased earning power of the other party; (10) The relative faulty of the parties; (11) Any other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties. [Based on Tennessee Code - Title 36, Sections 36-5-121]
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 to both parents in the case of joint custody or shared parenting based on the best interests of the child, taking the following factors into consideration:
1. The emotional ties, love, and affection between the parents and the child;
2. The ability of the parents to provide adequately for the child;
3. 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;
4. The stability of the family unit, as well as the mental and physical health of the parents;
5. 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;
6. Evidence of abuse to the child, the other parent, or any other person;
7. The character of any other person who resides with or frequently interacts with the child;
8. 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, and the provisions are outlined in the following child support guidelines (this is a PDF file that opens in a new browser). 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. [Based on Tennessee Code - Title 36, Sections 36-5-501]
PREMARITAL AGREEMENT: Any antenuptial or prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of such agreement shall be binding upon any court having jurisdiction over such spouses and/or such agreement if such agreement is determined, in the discretion of such court, to have been entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse. The terms of such agreement shall be enforceable by all remedies available for enforcement of contract terms.
HOW TO ENFORCE CHILD SUPPORT IN TENNESSEE – THE FEDERAL OPTION
Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.
How and where do I apply?
In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.
Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.
What are the steps to collecting support?
The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.
Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.
The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.
At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.
The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.
Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.
For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:
ACF OCSE National Reference Center
370 L'Enfant Promenade, S.W.
4th Floor Washington, DC 20447
IS A LAWYER NECESSARY FOR MY CASE?
If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.
No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.
Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.
Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.
If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.
CHOOSING THE RIGHT FAMILY LAWYER
If you have chosen to go with a lawyer you have a very important choice to make.
You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.
Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:
Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.
No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.
Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.
Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.
Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:
Is this lawyer’s office convenient to your home or office?
How much does the lawyer charge?
GET CURRENT WITH THE 2008 FAMILY LAW CODE OF TENNESSEE: