What Is Legal Separation in Memphis, Tennessee?
For at least a few Memphis, Tennessee husbands and wives, living together may not be a positive experience. When sharing the same household keeps hostilities on open display 24/7, then continued cohabitation could be detrimental for the whole family. Those couples need options, one of which is divorce. Another option is legal separation.
What exactly is legal separation in Tennessee? The process of legal separation shares many similarities with divorce. In legal separation, the court addresses issues of child custody, visitation, child support, alimony, and property issues, but a divorce is not granted.
Legal separation does not occur nearly as often as divorce. As such, some Tennessee judges may interpret certain provisions of the statute differently depending upon the particular factual situation and how it might affect the parties long-term. If a judge senses an agreement of the parties makes little sense for one spouse, for example, then the judge may disapprove a settlement.
For an overview of the divorce and legal separation process, you may want to read about Tennessee Divorce Laws FAQs | Filing for Divorce [or Legal Separation] in Tennessee & Forms.
Legal separation is sometimes known as “divorce from bed and board” – a rather archaic way of saying it puts an end to marital cohabitation. There is something uniquely impermanent about legal separation; it may not be a panacea, but it is an alternative to divorce. T.C.A. § 36-4-102. The marriage continues unabated. Child custody is not finally determined. The division of marital property is not permanently made. Yes, the court’s legal separation order does put an end to cohabiting as husband and wife, but nothing more.
Consider how divorce and legal separation compare:
Primary distinction: Absolute divorce dissolves the bonds of matrimony while legal separation does not.
Order of legal separation: The order of legal separation allows the spouses to live independently of each other and end cohabitation. Unlike divorce, they cannot remarry (bigamy) or have extramarital relations (adultery) without creating new grounds for divorce.
Similar Issues: Child custody, child support, alimony, and visitation are common issues to both divorce and legal separation. Although child custody and property issues will be addressed, final custody determinations and a final disposition of property may not be ordered absent divorce.
Same Grounds: The grounds for legal separation (discussed below) parallel those for divorce.
Whether or not the couple has minor children, an order of legal separation allows them to cease living together without their separation becoming fault-based grounds for divorce (for example, abandonment or desertion).
Pros and Cons of Legal Separation
Without dissolving the marriage, understand that all aspects of divorce procedure are completed in a legal separation case. As a result, the process of legal separation is just as expensive as with a divorce, yet the marriage remains intact. Sometimes legal separation is followed by divorce, which must also be paid for by the parties.
Why choose legal separation? Perhaps the most typical reason offered by spouses is to retain health insurance for the otherwise uninsurable party.
There are pros and cons with every legal decision and choosing between legal separation or divorce is no different in that regard. There are personal reasons, religious reasons, and financial reasons. Depending upon one’s point of view, the following considerations could be beneficial or detrimental:
● Insurance: A spouse can remain on the other spouse’s health insurance so long as they are married. (Following divorce, health insurance may extend to the insured parent’s minor children, but seldom to a former spouse.)
● Estate Plan: A party’s valid Last Will and Testament leaving everything to “my spouse” is still an effective testamentary gift.
● Stay Married: The parties never have to divorce if they wish to remain married while continuing to live separately.
● Religion: When there are religious reasons for staying married, the parties may desire legal separation.
● Property: In a divorce, the division of property is required. With a legal separation, the court can decline to distribute the couple’s marital property, namely because there remains the possibility of reconciliation. Because there is no permanent division of assets, both spouses remain on property titles, family businesses, pensions, and so on.
Legal separation does give the spouses a little space from each other, along with adequate time to reflect and, quite possibly, reconcile. Of course, there is much to think about with any break-up. What is the status of their marriage now? Where is their relationship headed? Are they willing to take steps that might improve their marriage? Should they try marriage counseling? Does one spouse (or both) need help with substance abuse? Is a divorce the best solution for their troubled lives? An absolute divorce, with its permanent dissolution of the bonds of marriage, may or may not be desirable. Letting the dust settle with the passage of time can sometimes help improve decision-making.
Grounds for Legal Separation in Tennessee
As with divorce, a Complaint for Legal Separation is filed in the Chancery Court or the Circuit Court in Tennessee. The petitioner alleges grounds sufficient to support the court’s order granting the relief prayed for – that is, to order legal separation and such other and further relief as the court finds just and equitable in the circumstances. T.C.A. § 36-4-101.
The 15 statutory grounds for divorce and legal separation may be familiar:
1. Irreconcilable differences
2. Cruel and inhuman treatment or inappropriate marital conduct
5. Impotence and incapacity to procreate
6. Desertion for one year
7. Conviction of an infamous crime
8. Conviction of a felony crime
9. Attempting to kill one’s spouse
10. Refusal to move to Tennessee where the other spouse resides
11. Pre-marital pregnancy
12. Habitual drunkenness or drug abuse
15. Two-year separation with no minor children
To learn more about each ground for divorce or legal separation, take a moment to read 15 Grounds for Divorce in Tennessee.
Two-Year Separation Can Be Grounds for Divorce, Too
Because legal separation does not dissolve the marriage, parties with minor children may seek an order of legal separation. By contrast, divorcing parties with minor children cannot avail themselves of the two-year separation period as grounds without first obtaining an order of legal separation. There are public policy reasons for this. For one, it’s in the children’s best interests to have their family situation stabilized through custody and support orders as part of the legal separation process.
Because there are two kinds of separation in Tennessee, many people are confused with the two-year separation rules. So let us clarify. The options available to the parties depend upon whether they have minor children or not.
● Legal Separation: On the one hand, there is a legal separation lawsuit – a civil court action to terminate the spouses’ cohabitation while leaving the marriage intact. In that instance, the parties may or may not have minor children. If the couple has minor children, then the court will order child custody, visitation, and child support as is appropriate in the circumstances. Those orders naturally take into consideration the possibility that these parents may reconcile.
● Separation as Grounds for Divorce: On the other hand, a two-year separation is grounds for divorce in Tennessee, but only when the couple has no minor children. (If the parents’ child is an emancipated minor, then child custody is not an issue for that child; either process remains available to the married couple.)
As independent grounds for divorce: the parties have no minor children and have been separated for two years or more, with no cohabiting, sex, or reconciliation in the interim. If you think about the circumstances, it makes sense from a public policy standpoint that spouses are not encouraged to live separately for two years if they have children before coming to the court to address important matters like custody arrangements, parenting time, visitation, and child support. The court is involved when there are children whose best interests need protecting. For that reason, the court steps in to issue orders that protect the children’s welfare, as well as the parents’ access rights.
Objecting to Legal Separation
So long as the other spouse does not object to legal separation, the court will grant the order. But what happens when a spouse objects to the other’s request for legal separation? The answer depends upon whether the objection is to a legal separation order or to the grounds alleged in the complaint.
The other party may freely object to the grounds alleged. Assuming grounds are established, however, that will not stop the order of legal separation. Only a spouse’s specific objection to legal separation can prevent the court from ordering it. With few exceptions, the only option in that event is to file a divorce complaint.
If the other party objects to the grounds for legal separation (he denies adultery, for example), then the court will hear those objections. At the hearing, the judge considers whether an order for legal separation shall be forthcoming, despite the party’s objection to the grounds for legal separation.
When Spouses Disagree on Divorce or Legal Separation
Although the court does have certain discretionary powers, as a general rule, if one spouse files for legal separation while the other spouse sues for divorce, then the court is unlikely to grant legal separation.
Tennessee Case of Hill v. Hill
There are limitations on the trial court’s discretion to grant a legal separation when one spouse wants a divorce. Regarding that very issue, the Tennessee Court of Appeals addressed that very issue in Hill v. Hill No. M2007-00471-COA-R3-CV (Tenn. App. 4/23/2008)(Tenn. App. 2008).
According to the appeals court in Hill v. Hill, when one party seeks divorce and the other seeks legal separation, the trial court does not have absolute discretion to grant a legal separation. In the Hill case, the wife wanted a legal separation so she could remain on her husband’s insurance for four more years – that is, until she became eligible for Medicaid. There was nothing unreasonable about her need for insurance coverage, but the fact that the possibility of reconciliation was virtually nil, seeking an absolute divorce (as the husband requested), alimony, and a final property division were appropriate.
The Hills were way beyond salvaging their marriage. Wife’s request for an order of legal separation was motivated by financial reasons, not because there was any glimmer of hope for their relationship.
More specifically, the appellate court confirmed that “[t]he prospects of reconciliation are a major factor guiding the court’s discretionary determination regarding ordering legal separation or an absolute divorce.”
As the Hill case made clear, the trial court does not have discretion to order legal separation for purely financial reasons when one of the parties sues for divorce. If there is no realistic chance the parties will reconcile, then divorce is the only alternative. To grant legal separation would allow the continuation of a marriage that exists in name only. One public policy reason for legal separation is to give the spouses time to reflect on their marriage and, possibly, overcome their differences. In a case where there is no likelihood of reconciliation, the court has no discretion to order wife’s legal separation when husband sought divorce.
When Legal Separation Is Followed by Absolute Divorce
Ordinarily, there has to be a two-year period following the legal separation order before the court may order an absolute divorce. Importantly, though, there is nothing precluding the court from granting divorce sooner. The party petitioning the court for an absolute divorce must establish that there has been no reconciliation in the two plus years following the order of legal separation. The divorce will be final and deals permanently with the parties’ property rights, custody, and support obligations.
Waiting two years is not always necessary, though. At any time after the legal separation order is issued, either spouse can file for divorce on other grounds, such as inappropriate marital conduct or irreconcilable differences. It is simply that the divorce may not be granted on the grounds of separation until two years following the separation order has passed.
For more discussion, see .