Tennessee Divorce FAQ

Frequently Asked Questions About Divorce in Tennessee

The following sections provide general information on the various procedural and administrative aspects of divorce, custody, support, visitation, and property division settling the marital estate. You can bank on the fact that there is an exception to every answer in this guide. Thus, the need for an attorney to evaluate your specific situation.

Who can file for divorce in Tennessee?

To file for divorce in Tennessee, the court must have jurisdiction (power) over the parties. The spouse filing for divorce must be a resident when the grounds for divorce arose. If the grounds for divorce arose outside Tennessee, at least one of the spouses must have been a Tennessee resident for 6 months prior to filing. Divorce may be filed in any of the following counties:

• the county in which both spouses lived at the time of their separation
• the county in which the defendant lives if he or she is a resident of Tennessee
• the county in which the plaintiff lives if the defendant is a non-resident of Tennessee.

What are the grounds for divorce in Tennessee?

• No Fault - Irreconcilable differences; This must be agreed to by the parties
• Fault Based Grounds
  • impotence;
  • adultery;
  • conviction of a felony and imprisonment;
  • alcoholism and/or drug addiction;
  • wife is pregnant by another at the time of marriage - without husband's knowledge;
  • willful desertion for 1 year
  • bigamy;
  • endangering the life of the spouse;
  • commission and/or conviction of an infamous crime;
  • refusing to move to Tennessee with a spouse and willfully absenting oneself from a new residence for 2 years.
  • Living separate and apart for 2 years without cohabitation when there are no minor children.

What is a legal separation?

This may be sought instead of a divorce and is awarded based upon the same grounds as a divorce. The agreement or court order resolves many of the same issues as in a divorce, but leaves the parties married. Note that after two years a divorce may be sought based upon the parties living apart. This action is seen by some as a way to try to save the marriage, it rarely works.

How long does it take to get a divorce in Tennessee?

For uncontested divorces Tennessee has a 60 day waiting period, if there are no minor children, and 90 days if there are minor children of the parties from the date the divorce is filed, before the divorce can be final. Contested divorces can take as much as one or two years or more to finish, depending on the level of cooperation between the parties and their willingness to compromise. If either or both parties decide to appeal the judge's ruling to a higher court, the process is much longer.

What is "Service" of Process?

Unless the defendant spouse signs an acknowledgment of service, (agreed divorce), he or she is entitled to legal 'service' i.e. notice that a divorce has been filed. Personal service may be by either a Sheriff or other person appointed by the court to make legal service. The Sheriff or process server actually hands the divorce papers to the defendant and completes a return of service stating that they did in fact personally deliver the divorce papers to the defendant. The Return of Service is then filed with the clerk as proof that the defendant was duly served. The defendant is not required to sign anything when they are served with divorce papers. They are entitled to notice. They are not required to sign anything or give their consent to a divorce. (See the section below for service of a 'missing' spouse).

Can a divorce be granted if the defendant's whereabouts are unknown?

If the filing spouse has made a 'good faith effort' to locate the missing spouse, and can swear under oath and penalty of perjury that they do not know the current whereabouts of the defendant and have made an effort to locate them, the missing defendant can be 'served' by publication of a notice in a local newspaper.

How is property divided in a Tennessee divorce?

Tennessee is an "equitable distribution" state, generally meaning that all marital property acquired during the marriage is subject to division. Property brought into the marriage i.e. that a person had before the marriage are not subject to division in a divorce.

How are marital debts divided in a Tennessee divorce?

Most divorcing spouses set out who will pay what debts as part of their marital settlement agreement during the divorce process, and close all of their joint accounts.

Does Tennessee have Alimony?

Yes. Tennessee has a specific statute setting out the guidelines used by Courts to determine alimony. Alimony may be awarded to either spouse for their support and maintenance after the divorce. It is generally based on the financial circumstances of the divorcing spouses. The needs of one spouse and the ability of the other spouse to pay are the primary factors in determining alimony.

How is Child Support determined in Tennessee?

Tennessee has guidelines for determining the amount of child support to be paid. The guideline amount is presumed to arrive at an amount of support that is in the child's best interest. Parents are generally NOT able to agree to pay child support below the guidelines.

How permanent are the provisions for child custody?

Orders providing for the support and custody of children is subject to modification after the divorce if there is a substantial change in the circumstances of the parties, such that the children have been exposed to some substantial risk by the custodial parent. The children's "best interest" is the standard used by the Court. A comparative analysis of the parties is made at the time of the divorce, so initial custody can be an insurmountable advantage.

What is a "Parenting Plan"?

The Tennessee legislature has passed legislation that requires parents to attempt to settle their differences in a divorce by the use of mediation and parenting plans where the parties attempt to agree as to where the children will stay and when.

What is a default divorce?

In a default divorce, only one spouse (the one filing the divorce) is required to sign the anything. One spouse files the divorce papers. The other spouse is then notified by being delivered a copy of the divorce papers by the Sheriff, other authorized process server, or by certified mail. The spouse being "served" with the divorce papers is not required to sign anything. All that is required is proof that they were notified - not their consent. You cannot force someone to stay married to you. However, by allowing a default divorce to be taken against you, you may be giving up life changing rights. This is not suggested.

Under what circumstances will the court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse economically disadvantaged and the other spouse with enough income to contribute to the economically disadvantaged spouse, the court will usually award alimony, at least temporarily.

The amount and duration of alimony depends on several factors, including:

• Earning capacity and financial resources of both parties
• Education and training of each party
• Duration of the marriage
• Age and mental condition of each party
• Physical condition of each party
• 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
• Separate assets of each party
• Provisions made with regard to marital property
• Standard of living established during the marriage
• Extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contribution, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party.

How is the amount of child support calculated?

Tennessee has guidelines for determining the amount of child support paid. These guidelines are based on an "income shares model." This means that the Tennessee Child Support Guidelines use a formula which considers the amount earned by each party, and the amount of time each parent spends with the children.

Once a court issues a child support order, can the amount of child support be changed?

A significant variance is required before a child support order can be modified. A significant variance is typically defined by at least a 15% change in the gross income of the Alternate Residential Parent. There are other circumstances that may qualify as a 'significant variance' as determined by the Tennessee Child Support Guidelines, but a change in income is the most common.

How does a court determine which parent will be designated as the Primary Residential Parent?

When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the emphasis being the child's best interest. To make that determination, the court considers:

1. The parent's ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society which the child faces as an adult;
2. The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;
3. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;
4. Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent's lack of good faith in these proceedings;
5. The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
6. the degree to which a prent has been the primary caregiver, defined as the parent whoc has taken the greater responsibility for performing parental responsibilities;
7. The love, affection, and emotional ties existing between each parent and the child;
8. the emotional needs and developmental level of the child;
9. the character and physical and emotional fitness of each parent as it relates to each parent's ability to parent or the welfare of the child;
10. the child's interaction and interrelationships with siblings and with significant adults, as well as the child's involvement with the child's physical surroundings, school, or other significant activities;
11. the importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
12. Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
13. 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;
14. the reasonable preference of the child if twelve years of age or older.
15. Each parent's employment schedule, and the court may make accommodations consistent with those schedules