State Laws and Filing for Divorce in Tennessee

Answers to Frequently Asked Questions from a divorce lawyer serving the Germantown TN and Memphis area with the Miles Mason Family Law Group, PLC.

1. Where can I find out about divorce laws affecting my case? All divorce law is found in Chapter 36 of the Tennessee Code, which are called statutes, and in opinions from the Supreme Court of Tennessee or Court of Appeals. Each state has its own individual laws, which vary substantially from state to state.

2. I have tried reading my state's divorce statutes, but only get confused. Understandably so. Not only are statutes hard to read, but each judge could interpret or apply these laws differently because every case is different.

3. So what is a person to do? Hire an experienced family law attorney with whom you are comfortable and whom you trust.

4. If I moved out of the marital home to another state, where do I file? You must be a resident within Tennessee for six months to file for divorce here. You may file in the county in which you or your spouse lives. If you have moved from another state recently, discuss your options with your attorney. You may have to file in Tennessee. This can be a very important decision.

5. Enough with your fancy legal words - where do I file? Most likely in the county where you last lived together. If neither of you are still living in that county, you probably can file in the county where either you or your spouse live.

6. How long do I have to live in Tennessee before I can get a divorce here? Generally speaking, you have to be domiciled in Tennessee at least six months.

7. Are there any exceptions? Maybe. If you are the victim of abuse or if there is some other emergency reason, you may be able to file immediately.

8. What if my spouse lives in another state? That makes your case more complicated. Definitely check with an attorney.

9. What kinds of complications? If the court in Tennessee does not have jurisdiction, you may be wasting your time and money. First, you will need to "serve" divorce papers on your spouse out of state. "Serving papers" means giving official notice.

10. How do I serve papers? Sheriff's deputy, private process server, or mail. You must give your spouse actual notice of the divorce, if possible.

11. For example? A sheriff or a process server in your spouse's home state may serve process. Sometimes you may also send copies by certified mail to your spouse's residence or, if you don't know where your spouse is, publish a legal notice in a newspaper selected by the court.

12. I can manage that. But is it expensive? That depends on how much the local sheriff or private process server charges, but usually fees are under $75. Publishing a legal notice can be more expensive. Depending on the newspaper, you can spend $100 or more.

13. What happens if my spouse and I agree on everything? Do we still need a lawyer? Technically, no. Practically, yes. An experienced family lawyer will still need to draft or review your agreement to make sure everything is done correctly. A divorce is a lawsuit. Remember, there is no such thing as a "standard" divorce. There are so many issues to be considered that it is best if you have a lawyer with an ethical duty to explain things and represent only your best interests. Very few lawyers will represent both parties because of the potential for a conflict of interest.

14. Give me a few examples of a conflict of interest. First, one spouse may be paying a lot of money in child support, but cannot claim the children as dependents unless the custodial parent signs IRS form 8332. Also, if you sign over ownership of the marital house, you will still be liable on the mortgage unless it is refinanced. Finally, one party may end up with stock that has a low basis and may be subject to significant capital gains taxes if sold. If one lawyer represents both parties, the lawyer cannot advise either party to try for better settlement terms.

15. What are the grounds for absolute divorce in Tennessee? Grounds must be proven or agreed. Grounds for divorce include the following:

• Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;

• Either party has knowingly entered into a second marriage, in violation of a previous marriage, still subsisting;

• Either party has committed adultery;

• Willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year;

• Being convicted of any crime which, by the laws of the state, renders the party infamous;

• Being convicted of a crime which, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary;

• Either party has attempted the life of the other, by poison or any other means showing malice;

• Refusal, on the part of a spouse, to remove with that person's spouse to this state, without a reasonable cause, and being willfully absent from the spouse residing in Tennessee for two (2) years;

• The wife was pregnant at the time of the marriage, by another person, without the knowledge of the husband;

• Habitual drunkenness or abuse of narcotic drugs by either party, when the spouse has contracted either such habit after marriage;

• Irreconcilable differences between the parties;

• For a continuous period of two (2) or more years which commenced prior to or after April 18, 1985, both parties have lived in separate residences, the parties have not cohabitated as man and wife during such period, and there are no minor children of the parties;

• The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct;

• The husband has offered such indignities to the wife's person as to render the wife's condition intolerable, and thereby forced the wife to withdraw; and,

• The husband has abandoned the wife, or turned the wife out of doors, and refused or neglected to provide for the wife.

16. How long does a divorce take? A mutual-consent, no-fault divorce takes about two to six months right now. There is a 60 day "cooling -off" period after the complaint is filed, if there are no children. If the parties have children, it takes a minimum of 90 days. A contested divorce can last years, with the average contest lasting a year or more. Finally, if the parties agree to divide a pension, it might take an additional 60 to 180 days after the divorce is granted to complete the division.

17. Can I get an annulment? Rarely. Annulments may be had if the marriage was illegal (i.e., incestuous) or based on fraud or duress. An annulment can also be had if one party was underage. The rules and applications can be complex. The law also prevents annulments from causing children to be illegitimate. In an annulment situation, alimony is not available and property rights will be restored as if the marriage had not taken place.

18. What is a legal separation? A legal separation allows for the court ordered support and maintenance of a spouse without the actual granting of a divorce. Either party can sue for divorce later. The reason most persons should not want a legal separation is that it can be as expensive as a divorce. Only in the most rare of circumstances does a legal separation make sense.

19. Can I change my last name at the time of divorce? Yes. The only limitation is that a person cannot change names to perpetrate a fraud. Changing a last name to return to a prior last name is common.