Divorce – State Law Summary – Tennessee
Notes: This summary is not intended to be an all-inclusive summary of the laws of divorce in the State of Tennessee, but does contain basic and other procedures.
Tennessee law permits no-fault divorces based on 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
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
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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
Tennessee law permits a judgment of separation. TCA 36-4-102
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
In addition to child support, a judge may require the noncustodial adult parent, who is not the legal spouse of the custodial parent, to pay an amount for the maintenance and support of the custodial parent if the custodial parent of the child is a minor. Such amount shall be determined by the court based on the noncustodial parent’s ability to pay and shall be in addition to any court-ordered child support. Any order requiring the non-custodial parent to pay an additional amount for the maintenance and support of the custodial parent shall continue to be effective after the custodial parent reaches eighteen (18) years of age if the custodial parent is in high school. Such order shall continue until the custodial parent marries or graduates from high school or until the class of which the custodial parent is a member when the custodial parent attains eighteen (18) years of age graduates, whichever occurs first. As used in this subsection (b), “maintenance and support of the custodial parent” may also include counseling and other special medical services needed by the custodial parent. TCA 36-5-102
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
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
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 duration.
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
If the court determines that it would be in the best interests of the child, grandparents may be granted visitation rights. TCA 36-6-306