Beginner’s Guide to Tennessee Divorce Laws
Here are some of the most common legal questions and issues that come up during a divorce in Tennessee:
Marital Property in Tennessee
Tennessee is an equitable distribution state and as such, assets identified as marital property must be classified and valued before they can be divided between divorcing spouses. Courts must divide marital property according to the factors listed in T.C.A. § 36-4-121(c). It does not mean that the division will be a 50/50 split, but rather what is considered appropriate based on a number of circumstances.
Marital property is generally all assets acquired during the marriage. Assets acquired before a marriage or after a couple separates, or property that was given to one spouse as a gift or through inheritance, as well as some personal injury settlements, are deemed non-marital property in most cases.
Transmutation, commingling and the appreciation of separate property at the exceptions to when separate property can become marital property. The laws governing these division issues can be complex and best sorted out by an attorney.
Because Tennessee is an equitable distribution state, this means debts are also distributed in a fair manner which may or may not mean a 50/50 split. In some cases, a spouse with more income will be required to take on more debt. Debt secured by specific property usually becomes the responsibility of the spouse who receives it. For example, if you get the car, then you also get the car payment.
Division of Assets in Tennessee
Tennessee is an equitable distribution state and that means assets will be divided in a fair and equitable manner, but not necessarily with a 50/50 split. Judges will start with the premise of making an equal distribution but will then adjust the division based on several possible factors that may result in one spouse receiving more than the other, including:
- the length of the marriage
- the age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities, and financial needs of each spouse
- the tangible or intangible contribution by one spouse to the education, training, or increased earning power of the other
- the relative ability of each party for future acquisitions of capital assets and income
- the contribution each spouse has made to the acquisition, preservation, appreciation, or dissipation of the marital or separate property, including the contribution of a spouse to the marriage as homemaker, wage earner, or parent, with the contribution of a homemaker and wage earner to be given the same weight if each spouse has fulfilled his or her role
- the value of each spouse’s separate property
- the estate of each spouse at the time of the marriage
- the economic circumstances of each spouse at the time the division of property is to become effective
- the tax consequences to each spouse
- the amount of Social Security benefits available to each spouse
- other factors as are necessary to consider the equities between the parties.
Gifts to one spouse only in Tennessee are considered separate property and not subject to asset division. However, if the gift is commingled with marital assets during the marriage, then it may become a marital asset and must be divided accordingly.
Inheritance is considered separate property in Tennessee. However, if inheritance is commingled with marital assets, then it will also become a marital asset. For example, if you inherit a home but both you and your spouse move into the home, it could be considered marital property or if you inherit cash and put it into the upkeep of the house.
Separate property is also a factor when dividing marital property. If you keep your inheritance separate, it may mean you get a smaller share of marital property when you divorce.
Pensions, IRAs, 401Ks and Retirement Plans
Just like any other asset in a Tennessee divorce, pensions, IRAs, 401Ks and retirement plans are considered marital property. However, only the amount of the retirement asset that was earned during the marriage is subject to division.
Legally splitting pensions and other retirement funds are a multiple step process. First, a divorce decree must order that these assets be divided. A qualified domestic relations order, commonly referred to as a QDRO, must then be created.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
QDROs can be somewhat difficult to draft, and can get expensive when you need to ask your attorney to write it for you. That’s why we recommend QDRO Counsel, an online firm that has dedicated itself to drafting expert-level QDROs at a reasonable price (and you don’t even have to leave your home!).
All property and all debt accumulated during the marriage in Tennessee belongs to both spouses.
However, any assets acquired before a marriage or after a couple separates, or property that was given to one spouse as a gift or through inheritance, as well as some personal injury settlements, are deemed separate property as long as the assets were not commingled during the course of the marriage.
Alimony and Child Support
Alimony in Tennessee
Many types of alimony can be granted in Tennessee, either on a temporary or permanent basis. Determining the nature, amount, term and manner of payment are governed by several factors:
- The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources
- The relative education and training of each party, the ability and opportunity of each party to secure such education and training
- The duration of the marriage
- The age and mental condition of each party
- The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease
- The 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
- The separate assets of each party, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property as defined by state statutes
- The standard of living of the parties established during the marriage
- The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party
- The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so
- Other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties
Child Support in Tennessee
Child support begins with the application of Tennessee Child Support Guidelines. Calculations are made based on Tennessee Child Support Worksheets that parents must complete. This discloses income from all sources. Based on this information, the courts will use both the Guidelines and the Worksheets to establish how much money should be paid to support one or more children in a divorce.
Under Tennessee law, both parents have a legal obligations to support their children. Both parents are equally and jointly responsible for their minor child’s “care, nurture, welfare, education and support.”
Child support continues until a child turns 18, or until the child’s high school class graduates if the child is a 19-year-old.
The Department of Human Services administers the Child Support Program in Tennessee. Offices are located across the state in all 31 Judicial Districts. The services are provided through local district attorneys, DHS staff and private agencies under contract with the state.
Parents who fall behind on child support payments or completely disregard their obligation based on the divorce decree can face legal repercussions if they do so. The state may step in to assist in collecting payments and could resort to income withholding, intercepting income tax refunds, property liens or seizures, revoking professional licenses or driver’s licenses, and in serious cases, filing contempt of court charges which could result in jail time.
Custody and Visitation
Child Custody in Tennessee
As it is in all other states, the court puts the best interests of a child first when determining child custody in Tennessee. There are several factors that courts will consider in making this determination:
- The best interests of the child, including his or her emotional and physical well-being
- The love and affection and overall relationship between the child and the child’s parents or caregivers
- The mental and physical health of the parents or caregivers
- The child’s stated preference. This applies only if the child is old enough (generally 12 or older) and mature enough to make a reasonable choice
- The parent or caregiver’s ability to provide food, clothing, a proper education, and medical care for the child
- The child’s home, school, and community record
- Any history of physical, emotional or domestic abuse
- Each parent’s willingness to foster and encourage a relationship between the child and the child’s other parent
When deciding custody, courts may grant one parent ultimate decision-making responsibility for major decisions regarding welfare such as education, medical and dental care, religious affiliations and other major life defining issues. In other instances, both parents may share those responsibilities, depending on what is determined to be the best interests of the child.
Sharing parenting responsibilities can be difficult and stressful without some assistance. That’s why we recommend using Our Family Wizard to mitigate your troubles! Our Family Wizard is an app that is specially designed for co-parenting and working with any custody plan. Learn more here!
Substance abuse in Tennessee can be one of the fault-based reasons that can be cited for divorce. Substance abuse must be proven for a divorce to be granted based on that ground.
Another way substance abuse may impact a divorce is if it can be shown that one spouse spent considerable community asset resources to feed their habit. This will influence the courts regarding a division of assets and possibly on spousal support as well.
Bifurcation of Martial Status
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
In Tennessee, bifurcation is allowed in some instances. The court can refuse to bifurcate the issues if it believes doing so will create inefficiency and additional unreasonable costs and expenses both to the parties and to the court.
Bifurcation is generally granted when spouses are not able to reach reasonable solutions and time is of the essence, or there are other legitimate necessary reasons as to why all of the issues cannot be resolved at the hearing.
You are required to make mandatory disclosures about your assets when you get a divorce in Tennessee. This is so that your assets can be classified as either marital or separate and then divided equitably.
Each spouse must submit this information under the penalty of perjury. If a spouse lies, they could be liable for civil and criminal penalties. If a spouse refuses to exchange information, then the court can order the spouse to do so and hold them accountable for any associated fees.
Spouse’s Default in Tennessee
When one spouse fails to respond to a divorce complaint in Tennessee, the courts may award a divorce by default. After a spouse has been served with papers, they have 30 days to respond in writing to any claims made in the complaint. If no response is filed, the plaintiff may seek a default judgment and award what was requested in the original complaint.
Other Divorce Issues
Tennessee does not have specific grounds for divorce related to domestic violence but there are grounds that are similar. One of the fault-based grounds is that one spouse has subjected the other to such cruel and inhuman treatment that cohabitation is unsafe.
Courts can issue temporary protective orders before or after a spouse files for divorce. it is effective for 15 days or until the court is able to hold a full hearing. Spouses can also seek a permanent protective order that can last up to one year or longer if an extension is requested.
Domestic violence will most certainly have an impact on child custody and visitation rights in Tennessee. A judge will not order shared custody where the threat of violence may be present. No visitation or supervised visitation may be ordered depending on the nature of the violence and whether it was directed specifically at the children.
Tennessee law states that you cannot remove your spouse from a health insurance policy before a divorce is finalized. Technically, there is no change in circumstances when a couple is only separated. Nothing officially changes until a final divorce decree has been issued. After a divorce, most employers and health plans will not continue to cover an ex-spouse. At that time, they will be removed from coverage.
However, it may be possible to negotiate a spouse paying for health insurance as part of spousal support or a spouse can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows coverage for up to three years as long as premiums are paid
If children are involved, then any child support will need to include health insurance coverage for children, either by one or both of the parents’ contributions.
Infidelity and Adultery
Infidelity and adultery, more commonly known as “cheating” takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse.
In Tennessee, it is one of the fault-based reasons that can be cited when filing for divorce. To be granted a divorce based on adultery, the plaintiff must provide proof of the defendant’s actions.
Military Divorces in Tennessee
Certain state and federal laws come into play if a member of the military is involved in a divorce in Tennessee.
Once forms have been filed to begin the divorce, copies must be served on the spouse to give him or her a chance to respond. When one spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act that allow them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.
Federal law dictates that child and spousal support awards may not exceed 60% of a servicemembers pay and allowances if they are single. That amount drops to 50% if the servicemember remarries and has a new family they must support. Child support is determined using normal Tennessee child support guidelines and worksheets to determine an appropriate amount that must be paid.
A service member’s parenting rights are the same as a civilian’s, but when reassignment and deployment to takes place, this will create the need for changes in the parenting schedule, which could happen several times in a military career.
Since the passage of the Uniformed Services Former Spouses’ Protection Act, military pensions are now considered “property” rather than “income,” and as such, a divorce court can divide it between a member of the military and their ex-spouse. The military is willing to send such payments directly to the ex, provided that the marriage lasted at least 10 years and that those 10 years “overlapped” with a minimum of 10 years’ service by the service member.
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