Tennessee Divorce Information and
FAQ
Tennessee law permits no-fault divorces based irreconcilable
differences between the parties. Additional grounds include; impotency,
bigamy, adultery, desertion, conviction of a felony and sentence of
imprisonment, conviction of an infamous crime, attempt on the life of the
other, pregnancy of the wife without the husband’s knowledge by one
other than the husband, physical cruelty, addiction to drugs or alcohol,
cruel and inhuman treatment and abandonment. TCA 36-4-101 Residency
requirements Tennessee law requires that the acts complained of must have
been committed while the plaintiff was a resident of the state. If the
acts complained of were committed outside of Tennessee and the plaintiff
resided outside of the state at the time, either of the parties must have
resided in Tennessee for six (6) months prior to the filing of the
petition. TCA 36-4-104
Venue The petition for divorce may be filed in the county where the
parties last shared a residence, where the defendant resides if a resident
of Tennessee, or where the plaintiff resides if the defendant is a
non-resident. TCA 36-4-105 Irreconcilable differences - Procedure.
(a) (1) In all divorces sought because of irreconcilable differences
between the parties, if the defendant is a nonresident, personal service
may be effectuated by service upon the secretary of state pursuant to the
provisions of § 20-2-215.
(2) In lieu of service of process, the defendant may enter into a
written notarized marital dissolution agreement with plaintiff that makes
specific reference to a pending divorce by a court and docket number, or
states that the defendant is aware that one will be filed in this state
and that the defendant waives further service and waives filing an answer
to the complaint. Such waiver of service shall be valid for a period of
one hundred eighty (180) days from the date the last party signs the
agreement. The agreement may include the obligation and payment of
alimony, in solido or in futuro, to either of the parties, any other
provision of the law notwithstanding. The signing of such an agreement
shall be in lieu of service of process for the period such waiver is valid
and shall constitute a general appearance before the court and answer
which shall give the court personal jurisdiction over the defendant, and
constitute a default judgment for the purpose of granting a divorce on the
grounds of irreconcilable differences. (3) No divorce heretofore granted
shall be invalid because the agreement was signed and notarized or
acknowledged prior to filing under prior law before the action was filed.
(b) No divorce shall be granted on the ground of irreconcilable
differences unless the court affirmatively finds in its decree that the
parties have made adequate and sufficient provision by written agreement
for the custody and maintenance of any children of that marriage and for
the equitable settlement of any property rights between the parties. If
the court does not affirmatively find that the agreement is sufficient or
equitable, the cause shall be continued by the court to allow further
disposition by the petitioner. If both parties are present at the hearing,
they may, at that time, ratify any amendments the court may have to the
agreement. The amended agreement shall then become a part of the decree.
The agreement shall be incorporated in the decree or incorporated by
reference, and such decree may be modified as other decrees for divorce.
(c) (1) Bills for divorce on the ground of irreconcilable differences must
have been on file for sixty (60) days before being heard if the parties
have no unmarried child under eighteen (18) years of age, and must have
been on file at least ninety (90) days before being heard if the parties
have an unmarried child under eighteen (18) years of age. The sixty-day or
ninety-day period bills for divorce which must be on file shall commence
on the date the original bill was filed and not on the date the bill was
amended to include the ground of irreconcilable differences.
(2) A divorce decree or order issued prior to March 22, 1996, in which
the hearing for such divorce occurred before the specified time periods
required by this subsection, shall remain valid and the parties shall
remain divorced. Likewise, all other issues resolved in the divorce
decree, order or agreement, such as distribution of marital property,
alimony, child support and custody, shall remain valid and in full force
and effect. (d) (1) A bill of complaint for divorce where the respondent
has been personally served or acknowledged as set out in subsection (a),
which includes the ground of irreconcilable differences, may be taken as
confessed and a final decree entered thereon, as in other cases and
without corroborative proof or testimony, the provisions of §§ 36-4-107
and 36-4-114 to the contrary notwithstanding. (2) For purposes of this
section, "without corroborative proof or testimony" means that
the petitioner shall not be required to testify as to the material facts
constituting irreconcilable differences or any attempts to reconcile such
differences. » Return to top (e) If there has been a contest or denial of
the grounds of irreconcilable differences, no divorce shall be granted on
the grounds of irreconcilable differences. However, a divorce may be
granted on the grounds of irreconcilable differences where there has been
a contest or denial, if a properly executed marital dissolution agreement
is presented to the court. (f) Irreconcilable differences may be asserted
as a sole ground for divorce or as an alternate ground for divorce with
any other cause for divorce set out in § 36-4-101 or § 36-4-102.
36-4-103.
Contents of petition for divorce and legal separation.
(a) (1) The complaint for divorce shall set forth the grounds for the
divorce in substantially the language of § 36-4-101 or § 36-4-102, and
pray only for a divorce from the defendant, or for a divorce and such
other and further relief to which the complainant may think to be
entitled. In cases wherein an answer is filed, the court shall, on motion
of the defendant, require the complainant to file a bill of particulars,
setting forth the facts relied on as grounds for the divorce, with
reasonable certainty as to time and place.
(2) The complaint for legal separation shall set forth the grounds for
legal separation in substantially the language of § 36-4-101, and pray
for such further relief to which the complainant is entitled. In all cases
where an answer is filed, the court shall, on motion of the defendant,
require the complainant to file a bill of particulars, stating the facts
relied on as a ground for legal separation, with reasonable certainty as
to time and place. (b) (1) The complainant shall also allege the full name
of the husband, the full maiden name of the wife, their mailing addresses,
dates and places of their birth, race or color of each spouse, number of
previous marriages of each spouse, date and place of the marriage of the
parties, the number of their children who are minors at the time of the
filing of the complaint, the social security numbers of the parties and
all children born of the marriage, and any other litigation concerning the
custody of such children in this or any other state in which either party
has participated, as specified in § 36-6-210 [repealed]. It shall be
mandatory that every complaint filed under this chapter shall contain the
foregoing, and the trial judges shall dismiss petitions and bills which do
not contain the foregoing unless it can be shown to the satisfaction of
the court that such information could not be obtained by the complainant
or petitioner by exercising due diligence. In lieu of a mailing address,
either party may designate an agent for the service of process throughout
the proceedings and, except as provided in subdivision (b)(2), the name
and address of such agent shall be the only address used for the
designating party in all petitions, pleadings, motions and orders relating
to such divorce action. » Return to top (2) If the complainant or the
defendant shows to the satisfaction of the court in which the petition is
filed that the residential address of the other party is relevant and
necessary in order to prove the allegations contained in the complaint or
to ascertain information necessary to determine value and/or ownership of
property, or to ascertain other data necessary to evaluate and agree upon
a property division or custody or defend against such allegations, the
court may order either party to reveal such residential address to the
other party. (3) If the complainant elects to designate an agent for
service of process in lieu of the mailing address as authorized by this
subsection but does not designate a specific person, the complainant's
attorney shall be deemed the complainant's agent for service of process.
(c) Notwithstanding any other provision of the law to the contrary, the
plaintiff or other party shall not be required in those counties having a
divorce proctor to file an affidavit swearing that the defendant is not in
the military service where: (1) The complaint states facts that would make
the defendant ineligible for military service; or (2) The residence
address of the defendant is set forth in the complaint, and:
(A) The defendant has been personally served with service of process,
or has been mailed a copy of the complaint by a divorce proctor; (B) The
defendant has actual notice of the commencement of the suit;
(C) Proof of mailing to the defendant of notice of the suit is
exhibited to the court; or
(D) The defendant is represented by an attorney. 36-4-106.
Verification of petition - Effect of noncompliance. (a) The bill or
petition, except those seeking a divorce from the bonds of matrimony on
the grounds of irreconcilable differences, shall be verified by an
affidavit, upon oath or affirmation, before a general sessions court
judge, notary public or the judge or clerk of the court, or as provided in
§§ 58-1-605 - 58-1-607, that the facts stated in the bill are true to
the best of the complainant's knowledge and belief for the causes
mentioned in the bill. The authority conferred in §§ 58-1-605 - 58-1-607
may be exercised beyond the continental limits of the United States.
(b) If the issue of whether the affidavit contains the complainant's
verification that the complaint is not made out of levity or in collusion
with the defendant is not raised at trial, each party waives the right to
contest such issue on appeal.
(c) A divorce decree or order issued prior to March 22, 1996, in which
the bill or petition for such divorce did not include the affidavit of
verification required by this section shall remain valid and the parties
shall remain divorced. Likewise, all other issues resolved in the divorce
decree, order or agreement, such as distribution of marital property,
alimony, child support and custody, shall remain valid and in full force
and effect. 36-4-107.
Proof required. If the defendant admits the facts charged in the bill
or petition and relied upon as the ground for a divorce, or the bill is
taken for confessed, the court shall, nevertheless, before decreeing a
divorce, except a divorce on the ground of irreconcilable differences,
hear proof of the facts alleged as aforementioned, and either dismiss the
bill or petition or grant a divorce, as the justice of the case may
require. 36-4-114. Name of court and title of action/parties An action for
divorce filed in the State of Tennessee is filed in the Circuit or
Chancery Court. The title of the action initiating the divorce is the
Petition for Divorce, while the title of the action granting the divorce
is referred to as the Final Decree of Divorce. The party filing the action
for divorce is called the Petitioner, while the other party is referred to
as the Respondent. TCA 36-4-105
Legal separation Tennessee law permits a judgment of separation. TCA
36-4-102 Waiting period Divorces filed upon the grounds of irreconcilable
differences require that there be a sixty (60) day waiting period between
the time of the filing of the petition and the hearing of the divorce if
the parties have no minor children. If the parties have minor children,
the Tennessee law requires a ninety (90) day waiting period between the
filing of the petition and the hearing of the action. TCA 36-4-103
Alimony The courts may award alimony to either spouse. Alimony may be
periodic, lump sum, or rehabilitative. Some of the factors the court
considers in determining the amount and term of alimony include: 1. The
value of any separate property and the value of each party’s marital
property. 2. Whether the spouse seeking alimony is the custodian of a
child whose circumstances are such that the spouse not seek employment. 3.
The need of the spouse seeking alimony to seek additional training or
education to find appropriate employment. 4. The standard of living
established during the marriage. 5. The duration of the marriage. 6. The
needs and obligations of each spouse. 7. The comparative financial
resources of each spouse, and 8. Any factor the court deems equitable and
just. TCA 36-6-100
Distribution of property Tennessee is an equitable distribution state.
This means that the court will divide the marital property between the
parties as it deems equitable and just, after setting aside to each spouse
the separate property of each. Some of the factors the court considers in
dividing the property between the parties include: 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 the spouses. 3. The tangible and intangible
contributions of each spouse to the education, training, or increased
earning power of the other. 4. The relative ability of each party for
future acquisitions of capital assets and income. 5. The contributions of
each party to the acquisition, preservation, appreciation, depreciation or
dissipation of the marital or separate property. 6. The value of each
party’s separate property. 7. Any other factors necessary to achieve an
equitable distribution. TCA 36-4-121
Child custody Tennessee courts will decide the issue of custody based
upon the best interests of the child. In determining the best interests of
the child, the court must consider the child's reasonable preference for
custody. Joint custody is presumed to be in the child’s best interests.
There is no presumption that either spouse is more suited than the other
for custody of the child. The court shall consider all relevant factors
including the following where applicable: 1. The love, affection and
emotional ties existing between the parents and child. 2. The ability of
the parents to provide the child with food, clothing, medical care,
education and other necessary care and the degree to which a parent has
been the primary caregiver, and 3. The importance of continuity in the
child's life and the length of time the child has lived in a stable,
satisfactory environment. TCA 36-6-106
Child support In a proceeding for dissolution of marriage or legal
separation, the court may order either or both parties to pay a reasonable
amount necessary for the support of a child of the marriage. The Tennessee
legislature has established child support guidelines which establish the
presumptive correct amount of child support. Deviation from the guidelines
require a specific finding by the court that application of the guidelines
would be unjust or inappropriate and such findings must be included in the
judgment. TCA 36-5-101 Rights of non-custodial parent The non-custodial
parent is entitled to various rights under Tennessee law, including, but
not limited to:
1. Unimpeded telephone conversations with the child at least twice a
week at reasonable times and for reasonable durations.
2. To send mail to the child which the other parent shall not open or
censor.
3. To receive notice and relevant information as soon as practicable
but within twenty-four (24) hours of any event of hospitalization major
illness or death of the child.
4. To receive directly from the child's school copies of the child's
report cards, attendance records, names of teachers, class schedules,
standardized test scores and any other records customarily made available
to parents.
5. To receive copies of the child's medical, health or other treatment
records directly from the physician or health care provider who provided
such treatment or health care, and,
6. To be free of unwarranted derogatory remarks made about such parent
or such parent's family by the other parent to or in the presence of the
child. TCA 36-6-110
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