Here are some of the most common legal questions and issues that come up during a divorce 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.
Most debt in a marriage is joint debt, meaning that it was incurred during marriage and both spouses are responsible for it. This can be credit cards, auto loans, home loans or other debt incurred to buy personal goods.
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:
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 an 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.
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 is a multi-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.
All property and all debt accumulated during the marriage in Tennessee belongs to both spouses.
However, any assets acquired prior to 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.
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:
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.
Use our free Tennessee child support calculator to quickly estimate your payments.
Under Tennessee law, both parents have a legal obligation 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.
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:
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.
Substance abuse can also affect child custody and visitation. If proven, then a parent may be denied visitation or have their rights severely restricted because the courts put a child’s best interests above all else.
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 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.
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.
If a spouse can show that he or she did not receive proper notice of the divorce proceedings, the court may agree to set aside the judgment. This will void the default decree and a new hearing will be ordered to determine the terms of the divorce
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, 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.
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.
The SCRA eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. It also prevents active duty military members from being held in default for failing to respond to a divorce action.
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.
Looking for more advice about divorce? Here are a few of our favorite resources:
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
