Tennessee Divorce Process: What You Need to Know (A Primer)

Tennessee Basic Divorce Procedure:

Grounds for Divorce.

Help Yourself Divorce is a no-fault divorce service, so we will prepare your divorce papers based on the ground of “irreconcilable differences.” This means you and your spouse agree to file a “no-fault” divorce.

Tennessee Residency Requirements.

If you use our services to file in Tennessee, you must meet one of the following residency requirements:

The grounds for divorce (“irreconcilable differences”) occurred while the plaintiff was a resident of the state of Tennessee; or
The grounds for divorce (“irreconcilable differences”) occurred outside Tennessee and the plaintiff resided out of the state at the time, but at least one spouse has resided in Tennessee for at least 6 months before filing for divorce; or
You are in the military and have been stationed at a military base in the state of Tennessee for at least one year.

If you and your spouse have minor children, the court must have jurisdiction over them. Generally this means your children must have lived in Tennessee for at least six months and currently live in Tennessee, or have lived in Tennessee within six months of filing.

Please note that you may be able to qualify for residency based on other requirements. If you are not sure whether you fall into one of the above categories, please seek advice from an attorney.

Filing Divorce in Tennessee.

The petition for divorce may be filed in the county where the parties resided at the time of their separation; in the county where the defendant resides, if the defendant resides in Tennesee; or in the county where the petitioner resides if the defendant is a nonresident of Tennessee or a convict.

Tennessee Divorce Filing Fees.

When you file the papers, you will have to pay a separate filing fee to the Courts. Please check with your local court clerk to find out how much the current filing fee is.

Serving Your Spouse.

After filing the divorce papers with the court, you must “serve” your spouse with a copy of the divorce papers. However, in an agreed case, you do not have to use formal service like a Sheriff or process server. All you have to do is hand-deliver, or mail by regular mail, a copy of the divorce papers to your spouse. Your spouse will then sign a form stating he or she has received the papers, and that form can be filed with the court by either spouse.

Waiting Period Before Divorce is Finalized in Tennessee.

If you and your spouse do not have any minor children, there is a 60 day waiting period before your divorce can be finalized. If you and your spouse do have minor children, there is a 90 day waiting period before your divorce can be finalized.

Tennessee Final Divorce Hearing.

An uncontested divorce is finalized during a hearing. The court regularly holds uncontested dockets, where many uncontested divorces are granted during the same hearing. You will either schedule a specific time and date to come for the hearing, or you can show up during any of the times when the court regularly holds the uncontested docket. The specific procedure will depend on the scheduling procedure in the county where you file.

Alimony in Tennessee Divorce:

Types of Alimony.

The court may award rehabilitative alimony, alimony in futuro, also known as periodic alimony, transitional alimony, or alimony in solido, also known as lump sum alimony or a combination of these.

Rehabilitative Alimony.

It is the intent of the general assembly that a spouse, who is economically disadvantaged relative to the other spouse, be rehabilitated, whenever possible, by the granting of an order for payment of rehabilitative alimony. To be rehabilitated means to achieve, with reasonable effort, an earning capacity that will permit the economically disadvantaged spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

An award of rehabilitative alimony shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of a substantial and material change in circumstances. For rehabilitative alimony to be extended beyond the term initially established by the court, or to be increased in amount, or both, the recipient of the rehabilitative alimony shall have the burden of proving that all reasonable efforts at rehabilitation have been made and have been unsuccessful.

Rehabilitative alimony shall terminate upon the death of the recipient. Rehabilitative alimony shall also terminate upon the death of the payor, unless otherwise specifically stated.

Alimony in Futuro.

Where there is relative economic disadvantage and rehabilitation is not feasible, in consideration of all relevant factors, the court may grant alimony in futuro, also known as periodic alimony, which is an order for payment of support and maintenance on a long-term basis or until death or remarriage of the recipient.

The court considers rehabilitation to be not feasible when the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

An award of alimony in futuro shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances.

In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is raised that:

The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

An award for alimony in futuro shall terminate automatically and unconditionally upon the death or remarriage of the recipient. The recipient shall notify the obligor immediately upon the recipient’s remarriage. Failure of the recipient to timely give notice of the remarriage shall allow the obligor to recover all amounts paid as alimony in futuro to the recipient after the recipient’s marriage. Alimony in futuro shall also terminate upon the death of the payor, unless otherwise specifically stated.

Transitional Alimony.

Transitional alimony means a sum of money payable by one party to, or on behalf of, the other party for a determinate period of time. Transitional alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded, such as a petition for an order of protection.

Transitional alimony shall terminate upon the death of the recipient. Transitional alimony shall also terminate upon the death of the payor, unless otherwise specifically stated in the decree.

Alimony in Solido.

Alimony in solido may be awarded in lieu of or in addition to any other alimony award, in order to provide support, including attorney fees, where appropriate. Alimony in solido, also known as lump sum alimony, is a form of long term support, the total amount of which is calculable on the date the decree is entered, but which is not designated as transitional alimony. Alimony in solido may be paid in installments; provided, that the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. The purpose of this form of alimony is to provide financial support to a spouse.

-From Section §36-5-121 of the Tennessee Code.

Alimony Guidelines.

In any action for divorce, legal separation or separate maintenance, the court may award alimony to be paid by one spouse to or for the benefit of the other, or out of either spouse’s property, according to the nature of the case and the circumstances of the parties.

The general assembly finds that the contributions to the marriage as homemaker or parent are of equal dignity and importance as economic contributions to the marriage. Further, where one spouse suffers economic detriment for the benefit of the marriage, the general assembly finds that the economically disadvantaged spouse’s standard of living after the divorce should be reasonably comparable to the standard of living enjoyed during the marriage or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

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 earnings 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 § 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.

Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties as to support and maintenance of a party.

-From Section §36-5-121 of the Tennessee Code.

Payment of Alimony, Securing Such Payment.

To secure the obligation of one party to pay alimony to or for the benefit of the other party, the court may direct a party to designate the other party as the beneficiary of, and to pay the premiums required to maintain, any existing policies insuring the life of a party, or to purchase and pay the premiums required to maintain such new or additional life insurance designating the other party the beneficiary of the insurance, or a combination of these, as the court deems appropriate.

The order or decree of the court may provide that the payments for the support of such spouse shall be paid either to the clerk of the court or directly to the spouse, or, in Title IV-D cases, the order or decree of the court shall provide that payments shall be paid to the central collections and disbursement unit, pursuant to § 36-5-116.

-From Section §36-5-121 of the Tennessee Code.

Division of Property in Tennessee Divorce

Marital Property Defined.

“Marital property” means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property.

“Marital property” includes income from, and any increase in value during the marriage of, property determined to be separate property if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage. “Substantial contribution” may include, but not be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine.

“Marital property” includes recovery in personal injury, workers’ compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.

-From Section 36-4-121 of the Tennessee Code.

Separate Property Defined.

“Separate property” means:

All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986, as amended;
Property acquired in exchange for property acquired before the marriage;
Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property;
Property acquired by a spouse at any time by gift, bequest, devise or descent;
Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

-From Section 36-4-121 of the Tennessee Code.

Property Division Guidelines.

In all actions for divorce or legal separation, the court may equitably divide, distribute or assign the marital property between the parties without regard to marital fault in proportions as the court deems just. In making equitable division of marital property, the court shall consider all relevant factors including:

The duration of the marriage;
The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
The relative ability of each party for future acquisitions of capital assets and income;
The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
The value of the separate property of each party;
The estate of each party at the time of the marriage;
The economic circumstances of each party at the time the division of property is to become effective;
The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
The amount of social security benefits available to each spouse; and
Such other factors as are necessary to consider the equities between the parties.

The court may award the family home and household effects, or the right to live therein and use the household effects for a reasonable period, to either party, but shall give special consideration to a spouse having physical custody of a child or children of the marriage.

Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties regarding the division of property.

-From Section 36-4-121 of the Tennessee Code.

Child Custody Laws in Tennessee Divorce:

In order for a court to decide custody of your children, whether by agreement of the spouses or by decision of the court, that court must have jurisdiction. Except as otherwise provided in §36-6-219 regarding Temporary Emergency Jurisdiction, a court of the state of Tennessee has jurisdiction to make an initial child custody determination only if:

The state of Tennessee is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from Tennessee but a parent or person acting as a parent continues to live in Tennessee. “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, or in the case of a child less than six months of age, the state in which the child lived from birth. A period of temporary absence of any of the mentioned persons is part of the period;
A court of another state does not have jurisdiction, or a court of the home state of the child has declined to exercise jurisdiction on the ground that the state of Tennessee is the more appropriate forum, and:
1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under §36-6-221 or §36-6-222; or
No court of any other state would have jurisdiction.

Please note: If you aren’t sure whether the state of Tennessee would have jurisdiction over you or your child(ren), you should consult an attorney.

-From Sections §36-6-205 and §36-6-216 of the Tennessee Code.

Best Interests of the Child.

In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the following where applicable:

The love, affection and emotional ties existing between the parents and child;
The disposition 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;
The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; provided, that where there is a finding, under § 36-6-106(a)(8), of child abuse, as defined in §§ 39-15-401 or 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a non-perpetrating parent has relocated in order to flee the perpetrating parent, that such relocation shall not weigh against an award of custody;
The stability of the family unit of the parents;
The mental and physical health of the parents;
The home, school and community record of the child;
The reasonable preference of the child if 12 years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child; and
Each parent’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

It is the legislative intent that the gender of the party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or constitute a factor in favor or against the award of custody to such party.

The court shall approve agreements of the parties allocating parenting responsibilities, or specifying rules, if it finds that the agreement is consistent with any limitations on a parent’s decision-making authority mandated by §36-6-406; the agreement is knowing and voluntary; and the agreement is in the best interest of the child.

-From Section §36-6-101, §36-6-106, and §36-6-407 of the Tennessee Code.

Designation of Custodian.

Solely for the purpose of all other state and federal statutes and any applicable policies of insurance that require a designation or determination of custody, a parenting plan shall designate the parent with whom the child is scheduled to reside a majority of the time as the custodian of the child; provided, that this designation shall not affect either parent’s rights and responsibilities under the parenting plan. In the absence of such a designation, the parent with whom the child is scheduled to reside a majority of the time shall be deemed to be the custodian for the purposes of such federal and state statutes.

-From Section §36-6-410 of the Tennessee Code.

Rights of Each Parent.

Except when the court finds it not to be in the best interests of the child, each parent has the following rights during periods when the child is not in that parent’s possession:

The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations;
The right to send mail to the child that the other parent shall not open or censor;
The right 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;
The right to receive directly from the child’s school records, names of teachers, class schedules, standardized test scores, and any other records customarily made available to parents, upon written request that includes a current mailing address and upon payment of reasonable costs of duplicating;
Unless otherwise provided by law, the right 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 upon written request that contains a current mailing address and upon payment of reasonable costs of duplication; provided, that no person who receives the mailing address of a parent as a result of this requirement shall provide such address to the other parent or a third person;
The right 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;
The right to be given at least forty-eight (48) hours notice, whenever possible, of all extra-curricular activities, and the opportunity to participate or observe, including, but not limited to, the following:
1. School activities;
2. Athletic activities;
3. Church activities; and
4. Other activities as to which parental participation or observation would be appropriate;
The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than two (2) days, an itinerary including telephone numbers for use in the event of an emergency; and
The right of access and participation in education, including the right of access to the minor child or children for lunch and other activities, on the same basis that is provided to all parents, provided the participation or access is reasonable and does not interfere with day-to-day operations or with the child’s educational performance.

-From Section §36-6-101 of the Tennessee Code.

Visitation.

After making an award of custody, the court shall, upon request of the non-custodial parent, grant such rights of visitation as will enable the child and the non-custodial parent to maintain a parent-child relationship unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

In granting any such rights of visitation, the court shall designate in which parent’s home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations and other special occasions.

-From Section §36-6-301 of the Tennessee Code.

Access to Records.

A copy of a child’s medical and school records shall be furnished to the non-custodial parent upon written request, unless furnished with a court order closing the records.

-From Sections §36-6-103 and §36-6-104 of the Tennessee Code.

Relocation.

If a parent who is spending intervals of time with a child desires to relocate outside the state or more than 100 miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent’s last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than 60 days prior to the move.

The court shall determine whether or not to permit relocation of the child based upon the best interests of the child. The court shall consider all relevant factors including the factors listed in §36-6-108 of the Tennessee Code.

-From Section §36-6-108 of the Tennessee Code.

Child Support Guidelines in Tennessee Divorce:

Upon the dissolution of a marriage, the court may make an order and decree for the suitable support and maintenance of the children by either spouse or out of such spouse’s property, according to the nature of the case and the circumstances of the parties. In making the court’s determination concerning the amount of support of any minor child of the parties, the court shall apply the child support guidelines as a rebuttable presumption. If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the children, or the equity between the parties.

-From Section 36-5-101 of the Tennessee Code.

Income Withholding.

The court shall order an immediate assignment of the obligor’s income. The order of assignment shall issue regardless of whether support payments are in arrears on the effective date of the order. In the event the court does not order an immediate assignment, every order shall be enforceable by income assignment as provided in this chapter. Income assignment shall not be required if there is a written agreement by both parties that provides for alternative arrangements. Such agreement must be reviewed by the court and entered in the record. In such cases, income withholding will still be issued, however if the obligor becomes in arrears [is late in making payments].

-From Section 36-5-501 of the Tennessee Code.

Termination of Child Support Obligation.

Parents shall continue to be responsible for the support of each child after the child reaches 18 years of age if the child is still in high school. The duty of support shall continue until the child graduates from high school or the class of which the child is a member when the child attains 18 years of age graduates, whichever occurs first.

The court may continue child support for the benefit of a child who is handicapped or disabled, as defined by the Americans with Disabilities Act, until such child reaches 21 years of age. Provided, that such age limitation shall not apply if such child is severely disabled and living under the care and supervision of a parent, and the court determines that it is in the child’s best interest to remain under such care and supervision and that the obligor is financially able to continue to pay child support. In such cases, the court may require the obligor to continue to pay child support for such period as it deems in the best interest of the child.

-From Section 34-1-102 of the Tennessee Code.

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