Tennessee Divorce FAQ

Basic Questions

Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?

Tennessee does not grant common law marriages. However, if a party is validly married in a sister state that permits common law marriage, Tennessee will recognize the marriage.

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What if my spouse does not want the divorce?

If one party does not want the divorce, grounds for divorce must be proven. For grounds, see above.

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At what point during the process can a spouse remarry or start dating?

You cannot remarry until after the divorce has been final for 30 days. After the final hearing, there is a 30-day appeal period. You should not get married until the expiration of this 30-day period.

While many spouses start dating during separation, it is not recommended.  You are married until the judge approves the final divorce decree. Dating during separation is adultery.

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Can I get an annulment in Tennessee?

If a marriage is annulled, the marriage is treated as if it never existed. Marriages can be void or voidable. A marriage is voidable if: either party is under age; one or both parties lack capacity; there is no consent; fraud; mistake; force; impotency; the woman is pregnant by another; or the marriage is not consummated.

Void marriages are serious violations of public policy. A marriage is void if either of the parties is already married (bigamy), the parties are closely related (incestuous), or if either party has been adjudicated insane at the time of the marriage ceremony.

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Does Tennessee grant divorces based on marital fault?

Yes. If divorcing spouses do not agree to get divorced, the spouse seeking the divorce must prove grounds.

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Do I really need to hire an attorney?

You do not have to hire an attorney. However, it is strongly recommended you do. If you have children, your divorce will forever change your parenting time. A divorce will have a huge impact on your financial planning. You will need the help of a professional to fully understand all your rights and obligations.

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What are the grounds for divorce in Tennessee?

In Tennessee, we have two types of divorces: uncontested, which is usually irreconcilable differences, and contested, which requires proof of grounds for divorce.

With a contested divorce, the parties cannot agree and must go to trial.  The grounds for a contested divorce are:

  • Adultery
  • Habitual drunkenness or abuse of narcotic drugs
  • Living apart for two years with no minor children
  • Inappropriate marital conduct
  • Willful or malicious desertion for one full year without a reasonable cause
  • Conviction of a felony
  • Pregnancy of the wife by another before the marriage without the husband’s knowledge
  • Refusal to move to Tennessee with your spouse and living apart for two years
  • Malicious attempt upon the life of another
  • Lack of reconciliation for two years after the entry of a decree of separate maintenance
  • Impotency and sterility
  • Bigamy
  • Abandonment or refusal or neglecting to provide for spouse although able to do so.
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Children, Support, and Property

Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

Yes, all issues must be decided before a judge approves the final divorce decree. If the parties settle, a Marital Dissolution Agreement will divide all assets and debts. If alimony is awarded, the Marital Dissolution Agreement will also identify the type and terms of the alimony.

A Permanent Parenting Plan will decide child related decisions. The Permanent Parenting Plan will designate a parenting schedule and make other provisions for any minor children. If the parties do not settle, a divorce trial will determine all issues.

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Can I get maintenance or will I have to provide maintenance to my spouse?

In Tennessee, we refer to maintenance as “alimony.” There are several different types of alimony. The factors for determining alimony are:

In determining whether the granting of an order for payment of support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including:

    • 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, and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;
    • 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 in s 36-4-121;
    • 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; and
    • Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
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What if my wife tries to move the kids out state?

Neither party can relocate out of the state while a divorce is pending. After the divorce, the primary residential parent can relocate after giving the appropriate notice to the other parent. For the alternative residential parent to defeat a relocation of the child by the primary residential parent, the parent must prove a substantial risk of harm to the child if custody remained the same.

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Do courts favor the mother over the father?

No, in Tennessee gender is not a de juris factor in awarding custody. In years past, the court favored awarding mother custody if the children were of tender years. However, the “tender years presumption” no longer exists in Tennessee.

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Can my child decide which parent to live with?

Under Tennessee statute, the court shall consider the reasonable preference of the child over the age of 12. The court may choose to hear the preference of a child under the age of 12. The preference of the child is one factor that the court will consider in determining the best interests of the children.

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Can a parent refuse to allow visitation if child support is not paid?

No, child support is a completely different and independent issue from the right of visitation. If a parent refuses to pay child support, the other parent should file a Petition for Contempt.

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If both parents share custody does anyone pay child support?

Yes, in Tennessee child support is based off the Tennessee Child Support Guidelines. If parents share 50-50/equal parenting time, child support is based upon each parent having one hundred eighty-two and one-half (182.5) days of parenting time.

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Who will get custody of our child?

If you and your spouse can agree to a custody arrangement, you will decide which spouse gets custody of your children. If you and your spouse do not agree, the court will determine the custodial arrangement based on the best interest of the child.

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Divorce Procedure

How is a divorce granted? Will I have to go to court?

The divorce is granted at a Final Hearing. One party will appear and testify. At a final hearing, the divorce documents will be approved by a judge. The judge will sign the final divorce decree.

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How and where is a divorce complaint filed?

You divorce will be filed in your county’s courthouse. In some counties, the Chancery Court handles all divorce. In other counties, like Shelby County, a divorce may be filed in Chancery or Circuit Court.

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What forms do I need to file for a divorce in Tennessee?

The forms needed to file for a divorce are: Complaint for Divorce; Certificate of Divorce; and Summons.

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How long do I have to live in Tennessee to obtain a divorce?

A divorce may be granted in Tennessee if the plaintiff or the defendant has resided in Tennessee for six months preceding the filing of the Complaint for Divorce.

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Do I have to go to court?

Not always. If the parties can reach an agreement on all issues, they will “settle.” A settlement can be reached between the parties by exchanging settlement agreements or at mediation. If a settlement is reached, only one spouse will go to court for the final hearing. If an agreement cannot be reached, the parties must go to court.

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When can I file for divorce in Tennessee?

You can file for divorce at anytime in Tennessee. There is no waiting period in Tennessee.

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Will my child need to appear in court?

Probably not. Most of the time the judges, lawyers, and parties prefer to keep children, especially young children, out of court.

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Can I collect my own evidence to use if my custody case goes to court?

Yes. You should discuss with your attorney any evidence that you plan to collect. You should be aware that there are state and federal wiretapping laws that must be strictly complied with by you and your attorney.

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