Divorce is the termination of a marriage. A divorce is granted either based upon grounds or based upon irreconcilable differences, i.e, a no fault divorce. Parties must address issues of property and debt distribution; whether alimony should be awarded, and if so, how much for how long; what the residential situation of children will be and who will be responsible for making decisions; and how child support will be allocated.
Everything that can be accomplished in a divorce can be accomplished in a legal separation, such as division of property and debts, awarding of alimony, child custody, and child support, except that parties are not divorced at the end of the case. Instead of completely terminating the marriage, the court only severs the duty of cohabitation, meaning that the spouses do not have a right to live with each other. A recipient of a legal separation cannot remarry. After separation for two years, either legally separated spouse can go back to court and obtain a divorce, without proving any other grounds.
. Religious objections to divorce provide a common reason for pursuing separation rather than divorce. Separation allows a spouse to leave an abusive situation and provide for support and child custody matters, even when the other spouse has not been unfaithful.
Alimony is payment made by one spouse to another. There are four types of alimony awards in Tennessee that can be granted upon a divorce or legal separation: Rehabilitative, Transitional, Periodic, and in Solido. Temporary alimony, known as alimony pendente lite, can be granted while a divorce or separation action is pending. Some types of alimony payments are tax deductible for the payor. The primary factors for entitlement to alimony are need and ability to pay, although there are many other factors. The courts are given broad discretion in awarding or not awarding alimony.
Tennessee is a dual property state, meaning that property is classified as either marital or separate. Marital property is to be divided equitably upon a divorce. There are many factors that a court will take into account in making an equitable division, but a very common result is that the marital property is split equally, at least in marriages of long duration. The goal of a court in dividing property in a marriage of short duration is to place the parties in the financial position they enjoyed before the marriage, to the extent allowed by the existing marital property. A court will seek to divide marital debts equitably as well. A secured debt, meaning a debt that has collateral, such as a car, will usually be assessed to the person who received the property. If one person was responsible for the incurring of a debt, the court will usually award the debt to that person. General marital credit card debt that cannot be traced to one person is usually divided equally.
Separate property is property owned by a party before the marriage, or property that is gifted or inherited during the marriage. Separate property can change in character to marital property in some situations. Separate property is not divided and remains with the person who owned, inherited or was gifted the property. There is case law precedent for a party to receive a portion of the increase in value of separate property – for instance, real estate – when the party has substantially contributed to the preservation or appreciation of the property, even though the party does not receive an award of any portion of the property or its value at the time of marriage. If, for example, a piece of property is inherited by one spouse, and the “other spouse” helps maintain the property, the “other spouse” may receive an award of part of the increase in the property’s value since it was inherited.
Child custody is a broad term that encompasses what are now three separate issues: primary residential custody, co-parenting time, and decision-making authority. A court will seek to place children with the parent who is most comparatively fit to be the primary residential custodian ("PRP"). The other parent will be the alternative residential parent (“ARP”). The factors for this comparative fitness test are endless, and the court has broad discretion in awarding primary residential custody. The ARP is awarded co-parenting time. Co-parenting time can vary quite a bit. The standard amount according to Tennessee guidelines is 80 days per year, which is essentially every other weekend, Friday to Sunday, two weeks in the summer, a week at Christmas, and a few other assorted days. East Tennessee courts are evolving towards awarding more co-parenting time that then guidelines provide. Some courts have a policy of awarding equal time, unless a party can show why equal time should not be awarded to the ARP.
Decision-making authority gives a parent the ability to decide major issues in a child’s life – what church will the child go to; what sports will the child play; will the child go to private school; should the child undergo this non-emergency medical treatment. Day-to-day decisions and emergency decisions are left to the parent with whom the child is staying at the time the decision must be made.
Child custody issues are addressed in a document called a “Permanent Parenting Plan”. A blank parent plan can be found at http://www.tsc.state.tn.us/node/253
Child support is normally a payment by the Alternative Residential Parent (“ARP”) to the Primary Residential Parent (“PRP”) to help offset the costs of providing basic necessities. The calculation is based upon the number of days each parent has the child or children; each parent’s income; who is paying and how much is paid for health insurance and daycare; and how many, if any, other children a parent is legally supporting, such as children from a previous relationship. The ARP has no right to set parameters on how the child support money is spent, nor can he or she ask for an accounting.
Once established, child support can be modified upwards or downwards depending on how changes in a party’s income or other circumstances would affect the obligation, taking into consideration the child support regulations. If the obligation would go up or down at least 15%, then the obligation is eligible to be modified. There are other situations in which a modification could occur, as well.
At one time, divorce would only be granted to a party who had “clean hands,” meaning that if both parties had grounds for divorce against each other, neither party would be awarded a divorce. This is no longer the case. It is my experience that grounds for divorce are not hotly contested in many divorces, it is certainly rare for parties to be denied a divorce because grounds do not exist, if both parties wish to be divorced.
When do grounds for divorce become important? The question of who is more at fault in the breakup of a marriage does still have an impact on alimony and attorney’s fees issues, given the existence of other grounds for awarding of these remedies. This question has NO impact on division of property. The grounds for being awarded a contested divorce in Tennessee are as follows:
(1) Either party, at the time of the contract, was and still is
naturally impotent and incapable of procreation;
(2) Either party has knowingly entered into a second marriage, in
violation of a previous marriage, still subsisting;
(3) Either party has committed adultery;
(4) Willful or malicious desertion or absence of either party, without
a reasonable cause, for one (1) whole year;
(5) Being convicted of any crime that, by the laws of the state,
renders the party infamous;
(6) Being convicted of a crime that, by the laws of the state, is
declared to be a felony, and sentenced to confinement in the
(7) Either party has attempted the life of the other, by poison or any
other means showing malice;
(8) 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;
(9) The woman was pregnant at the time of the marriage, by another
person, without the knowledge of the husband;
(10) Habitual drunkenness or abuse of narcotic drugs of either party,
when the spouse has contracted either such habit after marriage;
(11) 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
(12) The husband or wife has offered such indignities to the spouse's
person as to render the spouse's position intolerable, and thereby forced
the spouse to withdraw;
(13) The husband or wife has abandoned the spouse or turned the spouse
out of doors for no just cause, and has refused or neglected to provide
for the spouse while having the ability to so provide
If both parties can agree on the terms of divorce and reduce the agreement to writing, the parties can have an irreconcilable differences divorce, where neither party is considered to be at fault.
Parties will sometimes stipulate to grounds existing, meaning he or she agrees that the other party has grounds for divorce against him or her, as part of a settlement.
Often, a spouse will have a legal interest in the other spouse’s employment retirement benefits, and vice versa. If, by agreement or otherwise, a court recognizes by divorce decree a spouse’s interest in the other spouse’s retirement benefits, an additional order must be drafted to give to the plan administrator, called a Qualified Domestic Relations Order (“QDRO”). Military retired pay benefits are different, and are subject to certain criteria to be payable directly to the spouse who did not serve in the military.
When the parties can agree on a divorce, a Marital Dissolution Agreement (“MDA”) is used to address all issues of the divorce, other than child issues. An MDA is a document, usually 4-12 pages long, that contains the written agreements of the parties regarding property division, debts, alimony, and other duties of the parties. When a divorce is finalized, the MDA is incorporated into the final decree of divorce.
When a party fails to abide by an order of the court, the remedy is to take the non-performing party back to court under threat of contempt of court. Generally, the person will be liable for indirect civil contempt or indirect criminal contempt. Indirect means that the contempt is done outside the presence of the court. The most common contemptuous conduct in relation to family law are a failure to pay child support, failure to pay alimony, failure to pay debts, or a failure to refinance a home or car. In addition to a finding of contempt, a court can order restitution, for instance, if one former spouse has to pay the other former spouse’s debts, the court will order the non-performing party to reimburse the paying party.