Decree of Separate Maintenance As Divorce Alternative for Tennesseeans
For some Tennessee couples, a decree of separate maintenance could be an acceptable alternative to divorce. The break-up need not end the marriage, at least not right away.
Separate maintenance and legal separation are not technically the same under Tennessee law. Setting these legal technicalities aside, though, with both separate maintenance and legal separation the marriage remains intact. And when there is no dissolution, the parties cannot marry other people.
Importantly, all of the concerns that arise with Tennessee divorce must also be dealt with in a complaint for separate maintenance. Namely, that would be:
● Deciding child custody and designating the primary residential parent;
● Arranging grandparent or stepparent visitation;
● Scheduling parenting time and child care for the entire year and arriving at a permanent parenting plan;
● Calculating child support and the alternate residential parent’s financial obligation;
● Equitably dividing the parties’ marital property and debts between them; and
● Setting spousal support in the form of alimony.
If someone you know needs specific information about the proceedings involved with divorce and legal separation, a collection of applicable Tennessee divorce laws can be read at:
Just as with divorce, the court may order the parties to participate in mediation in an attempt to resolve as many issues over property, children, and support as they are able without court intervention. After mediation, any remaining disputes are placed on the trial agenda to be decided by the judge. (Settlements are always possible before the divorce, legal separation, or decree of separate maintenance is final, however.)
Consequently, filing a complaint for separate maintenance or legal separation may not represent a cost savings with regard to attorneys’ fees and court costs as the proceedings are very much the same. The decision is a personal one and, in many instances, a practicable one.
Divorce v. Separate Maintenance or Legal Separation
The parties may be in agreement on keeping their marriage intact while ending their relationship and all of its legal intricacies. Accomplished with an unchallenged complaint for separate maintenance or legal separation.
However, one spouse’s initial complaint for divorce could be followed by the other’s counterclaim for separate maintenance or legal separation. In that instance, the court has some discretion on whether to grant a decree of divorce or grant a decree of legal separation.
Why would a party want to stay married after a break-up?
There are many reasons, including religious ones. But at least one spouse’s motivation to counterclaim for separate maintenance (or in the alternative, legal separation), had to do with her health care costs. Hill v. Hill, M2007-00471-COA-R3-CV (Tenn. Ct. App. 2008).
From the wife’s perspective, a divorce would cause her health care insurance, prescription medication costs, and related medical expenses to skyrocket. If the court did not grant a divorce, then she could remain on her husband’s health insurance plan for a few more years. At least until she was old enough to qualify for Social Security benefits and Medicare coverage.
Although the divorce was ultimately ordered, the strategy behind her counterclaim for separate maintenance or legal separation was entirely understandable.
The trial court in Hill v. Hill ordered a decree of legal separation in favor of wife, but the Tennessee Court of Appeals reversed that decision and exercised its authority to “declare the parties divorced.” The wife’s health insurance and medical expense concerns were not disregarded.
The case was remanded to the trial court for further proceedings on the remaining issues. Essentially, the cost of wife’s health insurance and her ongoing medical expenses were considerations appropriate to:
1. The equitable division of the couple’s marital property; and
2. The amount and type of alimony to be awarded.
To learn more about alimony under these kinds of circumstances, read Tennessee Alimony Law in Divorce | Answers to FAQs. Also, for legal updates, news, analysis, and commentary, see our Tennessee Family Law Blog and its Alimony category. A Memphis divorce lawyer from the Miles Mason Family Law Group can help. To schedule your confidential consultation, call us today at (901) 683-1850.
About Miles Mason
Memphis divorce attorney and family lawyer, Miles Mason, Sr. JD, CPA founded the Miles Mason Family Law Group, PLC. The firm practices divorce and family law only representing clients living in Memphis, Germantown, Collierville, Bartlett, Eads, Shelby Co., Fayette Co. Tipton Co., and the surrounding west Tennessee area. For more information, see our Meet the Team page.