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The laws of Tennessee governing separation, divorce, alimony, child custody, child support, and child visitation are generally contained in the Tennessee Code, here.
To fully understand Tennessee divorce law and family law, it may be necessary to read and interpret statutes with case law and regulatory law. It is also important to know if law is up to date. For these and other reasons, it is always best to consult with a qualified Tennessee family law attorney to know how the law applies to your particular situation. The following legal summaries are not intended as legal advice and should not be relied on as such. They are intended only as an introduction to the way that the law functions in these areas.
Legal Separation in Tennessee
In Tennessee, a “legal separation” is not necessary if spouses are planning on divorcing. One spouse can sue another, however, for a legal separation.
While deciding upon the matter for legal separation, the court can also address other pertinent issues attached to matrimony such as child custody, visitation, support and property issues. A legal separation does not allow any spouse to marry another person until the matrimony is legally terminated by filing for divorce or dissolution of marriage or is been declared annulled. In case the parties have not been able to reconcile even after being legally separated for a period of two years, then the court can pass a final divorce order. However, again, filing for legal separation is not a prerequisite for obtaining a divorce. Any spouse who has any of the permissible grounds as given under section 36-4-101 of the Tennessee Code can file for a divorce.
The Court can also decide on the division of marital property at the time of passing an order for legal separation or at the time of entering into final divorce. In case the marital property is divided at the time of passing an order under legal separation then any property acquired after that shall be deemed to be considered as a separate property of that spouse.
Tennessee Code does not specify residency requirements to be met before filing for legal separation, as it is required for filing of divorce petition.
Initial considerations for Divorce
Who can file for divorce (“dissolution of marriage) in Tennessee?
As mentioned earlier, residency requirements need to be met for a Tennessee divorce. There are two ways permitted under the Tennessee Code:
- a. where either of the parties should be residing in the State for a period of six months immediately before filing for a divorce
- b. where any person employed in the armed services of the United States or spouse of any such person who is stationed for not less than one year in the State, shall be considered as a resident of the State, thus, can file for divorce in the Tennessee court.
How does a person choose the proper county in which to file?
Under the Code, the proper county is the proper “venue” where the plaintiff will file for divorce. Tennessee laws states that proceedings shall take place in the county where the spouses reside at the time of their separation or in the county in which the defendant resides. In case the defendant is a nonresident or a convict, then the proceedings will take place in the county where the plaintiff resides.
Grounds for Divorce
“Grounds for divorce” are the legal reasons for a divorce. Tennessee recognizes both no fault and fault grounds for divorce under sections 36-4-103 and 36-4-101 respectively, of the Tennessee Code.
There are two kinds of no fault grounds under which either of the spouses can file for divorce:
- (a) An irreconcilable difference between the spouses is recognized as a ‘No fault’ ground under the Tennessee Code. For the court to grant divorce on this ground a proper marital dissolution agreement needs to be executed between the parties, either of parties should deny this ground, sufficient parenting plan should be mentioned in the marital dissolution agreement.
- (b) The spouses have lived separately for a period of two years or more and the separation period has commenced prior to 18 April 1985 and the spouses have not cohabited as man and wife and have no minor children.
Under Tennessee laws, you can file for divorce on the following fault grounds:
- • Impotency
- • Bigamy
- • Adultery
- • Willful or malicious dissertation or absence for one whole year
- • Convicted against commission of crime
- • Committed felony and imprisonment
- • Attempt to endanger life of the spouse
- • Refusal of a spouse to move into the state of the other spouse without a reason and willfully staying away from the residence of the other spouse in Tennessee for a period of two years
- • Marrying an already pregnant woman, not disclosing this fact to the husband at the time of the marriage
- • Habitual drunkenness and intake of narcotic drugs after marriage
- • Cruel and inhuman treatment endangering life of the spouse
- • Abandonment
The complaint or petition for divorce will be heard by the Court only after 60 days have elapsed since the time its filed, in cases where the parties have no unmarried child under eighteen years of age and only after 90 days period has elapsed in cases where the parties have unmarried child under eighteen years of age. The sixty-day or ninety-day period shall commence on the date the complaint or petition is filed.
Division of Property
Tennessee is referred to as an equitable distribution state. This means that a certain type of property, "marital property", will be distributed "equitably" among the spouses in a divorce.
“Marital property” under section 36-4-121-B-1 of the Tennessee Code, is explained as real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of on the date of filing of a complaint for divorce.
“Separate property” under section 36-4-121-2 of the Code, is explained as all real and personal property acquired before marriage, by way of exchange of property acquired before marriage, by way of gift, devise, descent or inheritance, compensatory awards, money received to meet future expenses for medical reasons or loss in wages, property awarded or divided in the legal separation matter.
There are 11 factors that the court will consider to determine the division of marital property. These include:
- (1) Length of marriage
- (2) Age, health, vocational skills, earning capacity, employability, estate, financial liabilities and financial needs of each spouse
- (3) Contribution by one party to the education, training, or increased earning potential of the other party
- (4) Opportunity of each party to acquire future assets and income
- (5) Contribution of each party towards acquiring of marital or separate property, this also includes contribution made by a spouse as a homemakers, wage earner or parent in the marriage
- (6) Value of separate property owned by each spouse
- (7) Estates held by each party at the time of marriage
- (8) Estimate the condition of each party that will be in terms of economics after the marital property is divided.
- (9) Tax consequences to be faced by each party
- (10) Amount of social security benefits available with each spouse
- (11) Other miscellaneous factors
Alimony in Tennessee
Alimony (sometimes referred to as spousal support or maintenance) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.
In Tennessee, alimony can be granted by the court in cases of legal separation, dissolution of marriage, out of the spousal’s property or his or her income depending upon the nature of the cases and conditions of the parties.
The order for alimony can be modified or terminated if the circumstances have changed of either of the parties since the time of fixing the alimony amount. While determining the alimony amount, the court will also take into account the expenses that will be borne by the spouse to receive vocational training and employment after the divorce. It shall also take into account the financial needs of each spouse and ability of each spouse to fend for oneself financially.
There are four types of alimony that can be granted under the Tennessee Code such as rehabilitative alimony, alimony in futuro, also known as periodic alimony, transitional alimony, or alimony in solido, also known as lump sum alimony. The Court can grant a combination of these alimonies if the need arises.
Rehabilitative alimony will be granted when the spouse is found to be in extremely disadvantaged circumstances. The alimony amount will enable the disadvantaged spouse to find a suitable employment and to make the standard of living of such a spouse comparable to the standard of living that he or she lived during the marriage.
Alimony in futuro, also known as periodic alimony is awarded when the spouse is required to be partially rehabilitated and a complete rehabilitation is not feasible. This type of alimony can be granted in addition to the rehabilitative alimony.
When there is no requirement to rehabilitate the spouse and the spouse only requires some support to adjust to the economic consequences resulting out of a divorce, legal separation or any other such proceedings, then the court can award transitional alimony.
Alimony in solido may be awarded in lieu of or in addition to any other alimony award to provide support, including attorney fees, wherever appropriate.
Factors Affecting the Amount, Nature and Duration of Alimony in Tennessee
In determining whether to grant alimony, a court will consider all relevant factors to decide upon the nature, amount, kind and duration to pay alimony, they are as follows:
- • Earning capacity and financial resources of each spouse
- • Level of education and training acquired by each spouse, the ability to secure education or training and the necessity for the spouse to acquire education or training to improve his or her earning capacity to a certain level
- • Length of marriage
- • Age and mental condition of each spouse
- • Physical condition of each spouse
- • Whether its feasible for the spouse to get an employment if the spouse is given custody of the child
- • Separate assets of each spouse
- • Provisions made with respect to marital property
- • Standard of living enjoyed during marriage
- • Commission of faults by the spouse
- • Miscellaneous factors such as tax consequences to be borne by each spouse
Tax Consequences of Alimony
It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.
However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:
- (1) The payment is be a cash payment (such as a check or money order)
- (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
- (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
- (4) The payer and payee are not members of the same household at the time payments are made
- (5) There is no liability to make payments after the death of the recipient spouse
Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.
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