Divorce

In Tennessee, there are two basic routes for obtaining a divorce. A person can obtain a divorce based upon irreconcilable differences, or a person can obtain a divorce through a contested proceeding. In both proceedings, the parties will have to meet the residency requirements of the State of Tennessee.
Irreconcilable Differences Divorce
Irreconcilable Differences Divorce is a “no-fault” divorce. The grounds for this type of divorce are irreconcilable differences. To obtain an irreconcilable differences divorce, you and your spouse must enter into a property settlement agreement that completely divides all the marital assets. If there are minor children, then you and your spouse must also agree to a parenting plan. The parenting plan will set out the time each parent will have with the children (“co-parenting time”), and it will also set out the amount of child support.

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McDonald, Levy & Taylor can prepare all the necessary Court pleadings and necessary other documents and file the divorce documents with the Court. If you and your spouse have no minor children, there is a mandatory 60 day waiting period. The Court will not grant the divorce before the 60 days have passed. If there are minor children, then the mandatory waiting period is extended to 90 days. Once the waiting period has passed, the spouse filing the divorce will need to attend the final divorce hearing. No other witnesses need to attend the hearing.

The divorce will become final 30 days after the divorce decree is entered by the Court. During that 30 day period you are legally divorced. However, since the decree is not final during those 30 days, you should not remarry within that time frame.
A divorce based upon irreconcilable differences is certainly the preferable means of obtaining a divorce if you and your spouse are able to reach an equitable property settlement agreement without the Court’s intervention. The legal fees that you and your spouse will incur in a contested divorce are substantially more, compared to the legal fees for an irreconcilable differences divorce. Also, you and your spouse can usually reach a more equitable property settlement than the Court will make for you.
Contested Divorce
The second way to obtain a divorce in Tennessee is through the traditional method. This type of divorce is filed on the basis of inappropriate marital conduct, adultery, desertion, or several other reasons, specifically recognized by Tennessee law.This method of divorce is initiated by the filing of a complaint with the Court. Once the complaint is filed, it will be formally served upon your spouse. Your spouse will have 30 days to respond. If your spouse’s whereabouts are unknown, service may be obtained by publishing a notice in a local newspaper.In a contested divorce, you must prove your grounds by testifying in open Court. The Court normally requires two additional witnesses to corroborate your testimony. At the final hearing, the Court will make a decision as to the matters of co-parenting time, child support, alimony, and division of property.In the event that it is necessary, a Court often has an interim hearing for the questions of temporary support, temporary alimony, temporary attorney’s fees, and temporary co-parenting time. This hearing will determine these issues pending the final outcome of the case. This is not a final hearing. It is just an initial determination. The most frequent reason to have this type of hearing is to determine temporary child support until the divorce is granted.
Property Division

In every divorce action there will be an agreement between the parties or a Court order which divides property. Only marital property is divided. Each spouse keeps his or her own separate property. Separate property includes, but is not limited to:

Any property owned by a spouse at the time of the marriage
Any property that was given to a spouse or inherited by a spouse
Certain elements of personal injury recoveries
Income from and appreciation in value of separate property

In many cases, however, assets that were originally separate property become commingled with marital assets such that the separate property is no longer traceable. Also, separate property may be transmuted into marital property if a spouse intends for separate property to become marital property.Once there has been a determination of which assets are separate property and which assets are marital property, the Court will determine how to divide the marital property. The law requires that the marital property be “equitably” divided. “Equitably” does not necessarily mean “equally.” In other words, the Court may not split the marital property 50/50 between the spouses, but it will split the marital property in a fair manner. Also, the Court will not consider the relative fault of the parties. Some of the factors that the Court does consider in making an equitable division of property are:
Duration of the marriage
Age, health, earning capacity, and financial needs of each party
Contribution by one party to the education or earning power of another
Ability of the parties to earn
The separate property of each spouse
The Court will also allocate debts between the parties. In determining who should be held responsible for payment of a given debt, the Court will consider the debt’s purpose, who incurred the debt, who benefited from the debt, and who is able to repay the debt.
Spousal Support/Alimony
Spousal support, or alimony, is money paid by one spouse to the other spouse due to the economic impact of the divorce. After equitably dividing the marital property (or “marital estate”), the Court will decide if an award of spousal support is appropriate. Generally, the award is based upon the need of one spouse and the ability of the other spouse to pay. However, there are many specific factors that the Court will consider when it determines whether to award alimony, the type of alimony award, and the amount of the award. Some of the factors are:
Relative earning capacities of the parties
Education and training of the parties
Length of the marriage
Age and condition of the parties
Need for a parent to stay at home with children
Separate assets and how the marital property was divided
Standard of living
Contribution to the marriage, both tangible and intangible
Relative fault, if appropriate
In Tennessee, there are four types of spousal support: alimony in solido, rehabilitative alimony, alimony in futuro, and transitional alimony. Each type of alimony has a distinct purpose and definition.
Alimony in solido is an award that is sum certain, or in other words, that is a definite calculated amount. Alimony in solido may be payable in installments or a lump sum, and it is non-modifiable unless the parties agree otherwise. The purpose of alimony in solido is to award property to a low-income spouse so it can be used as a source of future income.
Rehabilitative alimony is an award that lasts for a set period of time. Rehabilitative alimony is modifiable if a spouse shows a substantial and material change in circumstances that warrant’s adjustment of the award. The purpose of rehabilitative alimony is to rehabilitate a disadvantaged spouse’s earning capacity relative to the other spouse.
Alimony in futuro is an award that is sum certain and is payable at periodic times until the death or remarriage of the recipient spouse. Alimony in futuro is modifiable if a spouse shows a substantial and material change in circumstances that warrant adjustment of the award. The purpose of alimony in futuro is to award income to a spouse who has need of the income when the other spouse has the ability to make the payments.
Transitional alimony is an award to an economically disadvantaged spouse for the purpose of making the transition from the marriage household to an independent household. Transitional alimony is non-modifiable unless the parties agree otherwise, the Court orders otherwise, or sometimes when the recipient spouse moves in with a third person.
Spousal support can be awarded during the pendency of the divorce litigation. Support awarded before the final decree of divorce is temporary and does not last longer than the period of time necessary to resolve the divorce lawsuit.
Order of Protection
In some cases it is desirable to have an order of protection or an injunction issued to prohibit your spouse from undertaking certain activities such as physically abusing you, destroying property, or taking the children from your custody. In order for the Court to grant an order of protection or an injunction, it is necessary that you prove the allegations set forth in the pleadings.
Other Cautionary Action
When it is apparent that you are planning to file for a divorce, we often recommend that you take certain precautions to protect your financial interests. It is often desirable to withdraw a certain amount of monies from any checking or savings account you hold jointly with your spouse. This will ensure that you have funds for your living expenses during the pendency of the divorce. In addition, we often suggest that you take the necessary steps to prevent your spouse form incurring any additional debt on joint accounts such as credit cards and home equity loans.Before taking any of these actions, however, you should consult with M,L & T or another attorney. When you take this type of cautionary action, you will be required to prove to the Court that you did not waste the funds.
Frequently Asked Questions
Q: Can one spouse move to a different state to get a divorce?A: Yes. If the person meets the requirements for residency they may file for divorce in that state.
Q: How long must I live in Tennessee before I can file for divorce in a Tennessee Court?A: If the acts complained of were committed outside of Tennessee and the plaintiff resided outside of Tennessee at that time, one of the parties must have resided in Tennessee for 6 months prior to the filing of the petition. If the acts complained of were committed while the plaintiff was a resident of Tennessee, then the petition may be filed at any time.
Q: Are there any waiting periods associated with a divorce?A: Divorce filed upon the grounds of irreconcilable differences require that there be a 60 day waiting period between the time of the filing of the petition and the final hearing of the divorce, if the parties have no minor children. If the parties do have minor children, Tennessee law requires a 90 day waiting period between the filing of the petition and the hearing of the divorce. Divorces on other grounds will be set and heard by the Court according to the availability of the judge or chancellor.
Q: What is meant by “grounds for divorce”?A: A “ground” for a divorce is a “reason” for divorce. The State of Tennessee has recognized certain reasons for divorce. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Tennessee?A: Tennessee law permits divorces based upon irreconcilable differences, impotency, bigamy, adultery, desertion, criminal conviction of a felony and sentence to confinement, conviction of an infamous crime, attempt upon the life of the spouse, willful refusal of a defendant spouse to join the plaintiff spouse at the plaintiff’s domicile for two years, failure to reconcile for two years after entry of a decree of legal separation, pregnancy of the wife by another man at the time of the marriage and without the husband’s knowledge, habitual drunkenness or abuse of narcotic drugs, cruel and inhuman treatment (often termed “inappropriate marital conduct”), indignities, abandonment or turning out a spouse without cause or refusal or neglect to provide for the other spouse while having the ability to do so, and living in separate residences for two continuous years.

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