Tennessee Divorce Laws
Introduction to Tennessee Divorce Laws
When family lawyers describe Tennessee divorce laws, they include Tennessee statutes, court cases, and court rules pertaining to:
- Filing for divorce under Tennessee law;
- Establishing legal divorce grounds in Tennessee;
- Tennessee divorce waiting periods;
- Tennessee laws affecting pensions and retirement accounts;
- Obtaining a name change in Tennessee; and
- COBRA health care coverage after Tennessee divorce.
As attorneys, we have addressed each of these divorce laws here. Look to our website for detailed information about child custody, alimony, child support, division of property, mediation, and domestic violence in divorce.
If you are contemplating Tennessee divorce, start gathering information. Begin by downloading our free e-Book: Your First Steps: 7 Steps Planning Your Tennessee Divorce.
Filing for Divorce in Tennessee
Every Tennessee divorce lawsuit begins the same way. One spouse files a verified Complaint for Divorce setting forth a prayer for relief asking that the court:
- Dissolve the marriage;
- Order child custody;
- Divide the spouses’ property;
- Award alimony for support and maintenance of a spouse;
- Order child support; and
- Order any other relief specifically requested.
Relief not requested cannot be granted. For example, if alimony is not raised in the complaint, the responsive pleading, or at some point in the proceedings before entry of the divorce, then it should not be ordered. Under Tennessee alimony law, a petition for spousal support cannot be brought as a separate action after the divorce. Details matter. Always consult with an experienced Tennessee divorce lawyer.
Although not a replacement for attorney advice, get many of your questions about filing answered with Tennessee Divorce Laws FAQs | Filing for Divorce in Tennessee & Forms.
Service of Process in Tennessee Divorce Law
Ordinarily the Complaint for Divorce is filed in the Tennessee county where the spouses last resided together. That is, the location of their marital home. If both spouses left that county to live elsewhere in Tennessee, then the complaint may be filed in the county where the complainant-spouse (the plaintiff) currently resides.
The summons and complaint must be delivered to the other spouse according to Tennessee law. (So he or she can respond to allegations, such as adultery as grounds for divorce.) This is known as service of process, which has its own legal technicalities. For service instructions and other requirements, read about the Tennessee Divorce Process: How Divorces Work Start to Finish. To save costs, though, service can be waived by executing a waiver of service form.
There are a few hoops to jump through when filing for divorce in Tennessee, before substantive matters, such as child custody and property division, can be heard. The first of which is establishing the Tennessee court’s jurisdiction and authority to hear and decide the family law case before it.
Tennessee Residency Law for Divorce
As you might expect, there is a residency requirement for divorce under Tennessee law. The spouse must be a resident of Tennessee for six months or more before filing the divorce complaint. Alternatively, if the spouse resided in a different state when marital misconduct or acts supporting dissolution occurred, then residency is satisfied so long as one spouse resided in Tennessee for the six months immediately preceding filing. T.C.A. § 36-4-104. An exception to the six-month residency requirement may apply in an emergency, as with domestic violence or child abuse.
● Is Either Spouse a Service Member?
Special residency provision is made for spouses in the U.S. armed forces – Navy, Army, Air Force, Marines, and Coast Guard. A service member’s residency in Tennessee is presumed if stationed in Tennessee for a year or longer. This extends to the civilian spouse, too. However, that presumption of Tennessee residency may be rebutted with clear and convincing evidence that the spouse is domiciled elsewhere. There are many issues unique to military divorce. To learn more, visit our discussion on Military Divorces in Tennessee: Answers to FAQs.
● Is Either Spouse a Resident Alien?
U.S. citizenship is not a requirement for divorce in Tennessee. Many marriages today involve dual citizenship, a complicating factor and reason to consult with an experienced Tennessee divorce lawyer. Regarding the residency requirement for Tennessee divorce, foreign citizenship does not obstruct assertion of domicile or residency here.
● When is Tennessee Residence Established
For the court to assert jurisdiction, Tennessee residency must be satisfied when the complaint is filed. There is nothing to prevent either spouse from moving to Arkansas, for example, with the divorce pending in Tennessee. Traveling to attend a hearing in Shelby County, Tennessee, may be inconvenient. But traveling is far less problematic than moving out-of-state before filing and being required to establish divorce residency anew. The consequences of moving before filing could mean a delay of six months or longer to establish residency, plus a period of separation if required.
● What if a Spouse Moves from Tennessee During Divorce?
People frequently relocate after breaking up. If the plaintiff-spouse moves to Arkansas or some other state while the Tennessee divorce is pending, then the defendant-spouse could have the case removed to the county where he or she resides (if different from where filed). Given that the complainant-spouse has to travel to Tennessee anyway for court appearances, there is little reason to subject the defendant to a less convenient venue. Ordinarily, the case will still proceed in Tennessee without a hitch.
There is much to consider when filing for Tennessee divorce. Author Miles Mason, Sr., touches on most important divorce topics in The Tennessee Divorce Client’s Handbook, What Every Divorcing Spouse Needs to Know, available on Amazon and Kindle.
Grounds for Divorce in Tennessee
In Tennessee, every Complaint for Divorce must allege specific grounds. These are the legal reasons why a judge should grant requested relief and dissolve the marriage.
For a settlement, the spouses must agree on one divorce ground. If grounds are neither agreed to nor proven at trial, then the judge should not grant the divorce. In all, there are 15 possible grounds for divorce under Tennessee law. Two of which are without marital fault. T.C.A. § 36-4-101.
1. Tennessee No-Fault Divorce Law
In the majority of cases, the no-fault grounds of irreconcilable differences are alleged along with fault-based grounds (for instance, inappropriate marital conduct discussed below). Yet only one fault-based ground must be agreed to or proven at trial for divorce to be granted.
With irreconcilable differences, the spouses agree they are so opposed on fundamental matters that they cannot continue as a married couple. Everything is a dispute, debate, stalemate, or worse. In order for a Tennessee divorce court to accept no-fault grounds for divorce, there must be a complete settlement of all contested issues. Otherwise, grounds for Tennessee divorce must be proven.
2. Tennessee Divorce Law on Legal Separation
When there are no minor children in the marriage, spouses who have lived separately and apart for two years or more may have grounds for divorce in Tennessee. The spouses must maintain two separate residences and not cohabit as man and wife during the entire statutory period. Two years separation without minor children is considered to be a “true no-fault” ground for divorce. T.C.A. § 36-4-101(a)(15).
Does Tennessee Grant Divorce Based on Marital Fault?
Under Tennessee divorce law, the remaining 13 grounds for divorce relate to some act or omission amounting to marital fault or marital misconduct committed by a spouse (sometimes both spouses).
1. Tennessee Divorce Laws on Adultery
Was the sexual encounter a one-time fling? Did an irresistible attraction develop into a long-term relationship? Committing adultery, having an extramarital affair, is basis for divorce in Tennessee. T.C.A. § 36-4-101(a)(3).
That adultery could be alleged as a reason to end the marriage may not be surprising for those raised in the Bible Belt. What does sometimes take spouses aback is that, under Tennessee law, an extramarital affair can be costly for the errant spouse. Both in the award of alimony in divorce and in the division of property.
First, a spouse’s infidelity is one of many alimony factors the judge could consider. Furthermore, the judge has broad discretion in awarding alimony and in deciding how much is appropriate. T.C.A. § 36-5-121.
When the adulterer is the economically disadvantaged spouse, alimony could be reduced to the minimum maintenance award permitted by law.
What if the adulterer is ordered to pay alimony? The court may be unwilling to leave the innocent spouse in an inferior financial condition as compared to the lifestyle enjoyed during the marriage. Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn.Ct.App. 1988). Importantly, alimony should never be awarded to punish the adulterous spouse for infidelity or to reward the innocent spouse for virtue. Tait v. Tait, 207 S.W.3d 270 (Tenn. Ct. App. 2006). For discussion of four alimony types, look to Tennessee Alimony Law in Divorce | Answers to FAQs.
Second, spending money on an extramarital affair is considered marital waste – the wrongful dissipation of marital assets. In dividing property equitably as required in Tennessee divorce law, the judge may adjust the property division accordingly. Ordering disproportionate shares to compensate the innocent spouse for the depletion in marital resources. T.C.A. § 36-4-106(d).
Sometimes the spouse who filed for divorce alleging the other spouse’s adultery begins dating while the divorce is pending. If the plaintiff is caught dating, adultery as basis for divorce is not sustainable. Dating during divorce is not a good idea.
Tennessee divorce law does provide for three affirmative defenses to adultery: recrimination, condonation, and connivance. An affirmative defense must be raised in the pleadings or is lost. Discuss this with your lawyer. If successfully lodged, an affirmative defense could minimize the damage caused by an extramarital affair. See Defenses to Divorce in Tennessee | Adulterous and Cruel Without Fault.
2. Tennessee Divorce Law of Inappropriate Marital Conduct
Once known as “cruel and inhuman treatment,” inappropriate marital conduct broadly reflects a willful, persistently hostile marital environment created by one spouse. Included are acts of physical, verbal, and psychological abuse; abnormal sex; withholding basic necessities (clothing, food, shelter); and showering attention on others in front of a spouse, to name a few cruel acts. When a spouse is unable to prove adultery, he or she may have sufficient evidence to prove inappropriate marital conduct. T.C.A. § 36-4-101(a)(11).
Two affirmative defenses are available to an allegation of inappropriate marital conduct: insanity and justifiable cause for the conduct.
The remaining grounds for divorce in Tennessee are as follows:
In Tennessee divorce law, indignities committed by the husband against his wife are cause for divorce. Indignities render the wife’s position intolerable, effectively forcing her to withdraw from him. T.C.A. § 36-4-101(a)(12).
The husband either abandoned his wife or turned her out of the marital home and, additionally, refused or neglected to provide for her support. T.C.A. § 36-4-101(a)(13).
In Tennessee divorce law, when a married individual knowingly enters into a second marriage, he or she is a bigamist. Bigamy or polygamy renders the subsequent marriage void under Tennessee law and is also grounds for divorce. T.C.A. § 36-4-101(a)(2).
Procreation and raising a family is a principle tenet of Tennessee marriage. When a spouse was impotent and incapable of reproducing at the time the couple wed, and such natural impotency continues, then grounds for divorce exist. T.C.A. § 36-4-101(a)(1).
7. Refusal to Remove to Tennessee
A spouse’s refusal to remove to Tennessee with the other spouse without reasonable cause, remaining willfully absent for two years, is grounds for divorce. T.C.A. § 36-4-101(a)(8).
In Tennessee divorce law, desertion for a year or longer is grounds for divorce when the spouse’s absence is willful, malicious, and without reasonable cause or justification. T.C.A. § 36-4-101(a)(4).
9. Attempt to Kill One’s Spouse
An intentional, malicious attempt to take the life of one’s spouse is grounds for divorce under Tennessee law. Proof of conviction is not required. T.C.A. § 36-4-101(a)(7).
10. Infamous Crime Conviction
A divorce may be granted when a spouse is convicted of any crime that is considered infamous under Tennessee divorce law. A few examples of infamous crimes are rape, incest, larceny, horse theft, and forgery. T.C.A. § 36-4-101(a)(5).
11. Felony Crime Conviction
In Tennessee divorce law, commission of a felony is an offense against the public and the marriage. Grounds for divorce include allegations that a spouse has been convicted, sentenced, and confined to prison for commission of a felony crime. T.C.A. § 36-4-101(a)(6).
12. Undisclosed Pregnancy
The Tennessee husband has grounds to divorce his wife if, at the time of the marriage and without husband’s knowledge, she was pregnant with another man’s child. T.C.A. § 36-4-101(a)(9).
13. Habitual Drunkenness or Abuse of Narcotics
Under Tennessee divorce law, a marriage can be dissolved because of a spouse’s habitual drunkenness or drug abuse. Whether the substance abuse was unknown to the innocent spouse when they married or began thereafter. T.C.A. § 36-4-101(a)(10).
Tennessee Divorce Waiting Period
Most divorce clients want to know “How long will the divorce take?” Because every couple’s circumstances are unique and every case proceeds a little differently, the answer is “as long as it takes.”
On the one hand, a conflict-steeped divorce with spouses at loggerheads on every issue could last from eighteen months to two-and-a-half years or more. That’s a long time. And the more extensive the litigation, the more expensive the divorce is likely to be for both spouses. For that reason, experienced divorce lawyers assist their clients in reaching as many agreements as possible during negotiation and mediation. Whatever disputes remain must be litigated at trial, although last minute settlements can and often do occur. (Take a look at Divorce Mediation in Tennessee | Answers to FAQs for alternate dispute resolution (ADR) information.)
On the other hand, it is possible to get through a divorce very quickly. But Tennessee divorce is never instantaneous.
Time for Reconciliation in Tennessee Divorce Law
What is the quickest divorce possible in Tennessee? There are two minimum waiting periods with divorce: 60 days or 90 days, depending.
These “cooling off” periods give spouses an opportunity to step away from the drama and passion of the moment. Giving them a breather to reflect on what they are doing, what they really want, and whether they should consider alternatives.
One alternative might be legal separation instead of an absolute divorce. The couple could also reconcile or decide to try marriage counseling.
For public policy reasons, Tennessee encourages attempts at reconciliation in support of marriage and families. The cooling-off periods allow for reflection and introspection, at least in theory. If a couple needs more time to think things over, the court may suspend the proceedings to give them time to enter into counseling. Or they could ask the court to dismiss the case altogether. If the case proceeds, then it is a matter of counting the days for the earliest possible divorce decree.
Minimum 60-Day Waiting Period for Tennessee Divorce
The quickest Tennessee divorce takes 60 days from the day the Complaint for Divorce was filed. That is the absolute minimum. Importantly, the 60-day cooling off period is only available when all of the following are true:
- The divorce complaint alleged no-fault grounds of irreconcilable differences;
- The spouses have no minor children together; and,
- The divorce is one of mutual-consent. Meaning the spouses agree on everything: division of property, allocation of debts, and alimony. Because the divorce is uncontested, no disputed issues need to be litigated at trial. For information on agreed divorce, read about Uncontested, Mutually Agreed Divorce for Tennessee Spouses.
Minimum 90-Day Waiting Period in Tennessee Divorce Law
When the spouses have a minor child, then the minimum cooling-off period is 90 days. The same criterion applies: no-fault grounds for divorce and no contested issues for the judge to decide.
Child custody must be agreed to. If the parents hope to have their divorce entered in 90 days from the date of the complaint, they must cooperate and work diligently on their parenting plan. Every Tennessee divorce with minor children will require child custody and parenting time decisions, submitted in the form of a Tennessee permanent parenting plan.
To have your divorce finalized in 90 days, involve your lawyer early on. A negotiated parenting plan can be filed either with the divorce complaint or shortly thereafter. Agreed upon Tennessee parenting plans require judges to approve their terms and formalities as in the best interest of the children. Begin preparing for your own parenting plan with Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family by Memphis, TN, divorce attorney Miles Mason, Sr.
Waiting Period After Tennessee Divorce Law
Although there is no legal requirement in Tennessee divorce law to wait to remarry any particular length of time after a divorce is granted, most Tennessee lawyers advise to wait at least until the 30 day appeal period has expired. If a divorce is appealed, the granting of the divorce is technically not final. After all divorces are granted, there is a 30 day appeal period in which either party may appeal the granting of the divorce.
Tennessee Divorce Laws Affecting Retirement
Under Tennessee divorce law, the court must “equitably divide, distribute, or assign the marital property” between the spouses. T.C.A. § 36-4-121.
Perhaps the more obvious marital assets to be divided are the house, furniture and furnishings, automobiles, and bank accounts. Less obvious are both spouses’ pensions and retirement accounts. But all marital assets must be divided, including an Individual Retirement Arrangement (IRA), 401k, pension, and deferred benefits.
Valuing pensions and IRAs in preparation for division in divorce can be a complicated process. A Qualified Domestic Relations Order (QDRO) drafted by a QDRO lawyer is recommended. Read the discussion on Division and Valuation of Pension Interests in Tennessee Divorces to learn more.
When Was the Account Created and Funded?
When the account was created and funded is key to determining whether an IRA or pension is the separate property of one spouse (not divided) or the marital property of both spouses (divided).
IRAs and pensions created and funded during the marriage are divided in divorce. Those created and funded only before marriage are not divided (absent agreement or adjustment from the bench). Accounts that were created and funded before and after the marriage must be analyzed further to determine what percentage is separate property and what percentage is marital property. The marital portion is divided; the separate portion belongs to one spouse.
When both spouses have retirement plans, they could agree to an equalizing payment that evens the accounts. In that way, they both keep their respective IRAs or pensions intact. A forensic accountant (a Certified Public Accountant) may be needed to assist in evaluating any final settlement offer. If pension and IRA division is a disputed issue at trial, then a forensic accountant can provide expert testimony.
Memphis attorney Miles Mason, Sr., CPA, authored the Forensic Accounting Deskbook to assist spouses, CPAs, and legal professionals with asset valuations in Tennessee divorce. In his book, Mason explains how to calculate estimates of the value of deferred pension benefits and much more.
Dividing Military Pensions in Tennessee Divorce
Many spouses in Tennessee are or were stationed at the Naval Support Facility Mid-South near Millington, TN, or at Fort Campbell on the Tennessee-Kentucky border.
Service members and their civilian spouses should understand how military retirement benefits are divided in divorce. For example, a civilian spouse cannot walk away from the divorce with more than 50% of the service member’s pension. But if child support is ordered from retirement pay, then as much as 65% could be redirected to the civilian spouse as primary residential parent (PRP).
Retirement benefits include a military pension, Survivor Benefit Plan, and Thrift Savings Plan. Those in the Reserve Component (National Guard and Reserves) have a military retirement, too.
A complication unique to military divorce is calculating retirement benefits. There are three different possible formulas to use: the Final Pay formula, the High-3 formula, and the REDUX formula.
Active duty does not prevent the service member’s retirement benefits from being divided in Tennessee divorce. The Servicemembers Civil Relief Act (SCRA) may be invoked to postpone divorce proceedings, though. If you or your spouse is or was a service member or Reserve Component, consult with an experienced lawyer about dividing a military pension in Tennessee divorce.
Legal Name Change at the Time of Divorce in Tennessee Law
How we identify ourselves is important in everything we do and are in life. A married name represents a married life. With the marriage ending in divorce, a party may desire a legal name change. To break from the past, to embrace the future, and to clarify legal status.
A divorce does not require a name change, however. Many spouses keep their married names after the divorce, especially with minor children to consider. Continuity could be easier on the child. The judge may think so, too.
Changing Your Legal Name in Tennessee
A request for a name change order is seldom denied without good reason. This is because the “common law has long recognized every person’s right to use and to be known for all legal and social purposes by any name he or she chooses as long as the choice of name did not inappropriately interfere with another’s rights” and does not implement some fraudulent purpose. In re Joseph, 87 S.W.3d 513 (Tenn. Ct. App. 2002).
There are two ways to change surnames under Tennessee law: by requesting a name change as part of the divorce or by filing a separate petition after the divorce. T.C.A. § 29-8-101 grants concurrent jurisdiction over name changes during or after divorce to the Circuit Court, Probate Court, and County Court.
● Name Change as Part of Tennessee Divorce.
The easiest approach is to request a name change (or return to one’s maiden name) as part of the divorce proceedings. Technically the divorce decree is entered first, immediately followed by the name change order. For the judge to order the name change, a request should be included in the divorce complaint or in the settlement agreement.
Once a name change order has been entered, that individual “may thereafter be known and designated, sue and be sued, by the new name.” T.C.A. § 29-8-105.
● Name Change After Tennessee Divorce.
With so much happening inside and outside a pending divorce, a spouse’s decision on whether to change or keep a married name may be delayed. Understandably so. For some it is simply too soon to think about such a dramatic change of identity.
A former spouse can file a Petition for Change of Name anytime after the dust has settled and a new life has begun. The verified petition must:
- Establish the court’s jurisdiction over the person as a county resident;
- Affirm petitioner is 18 years of age or older;
- List all other names and aliases;
- State the reason for the name change (“divorced”); and
- Affirm the name change will not adversely affect the rights of any minor child, and is not to evade creditor claims, to avoid legal process, or for some unlawful purpose; and
- Affirm petitioner is not a convicted felon.
There is no burden on petitioner to prove that the reason for the name change is a good and sufficient one. In re Joseph, 87 S.W.3d 513 (Tenn.Ct.App. 2002).
Initiating a separate legal action may incur a filing fee and lawyer fee when a Tennessee attorney is consulted. Also, the petitioner should obtain at least two certified copies of the court’s order. A certified copy may be required as part of submitting a name change to a government agency, such as the Social Security Administration (retirement benefits) and U.S. Department of State (passport).
● Limited Judicial Discretion to Deny Name Change.
The judge has limited discretion to deny a request for change of name. Two reasons for denial are: either the statutory requirements of T.C.A. § 29-8-101 have not been met or there is a common law basis for denial. In re Grannis, No. M2003-0142-COA-R3-CV (Tenn. Ct. App. 2004).
By statute, convicted murderers and registered sex offenders are disqualified from legally changing their names. T.C.A. § 29-8-101(b)(1).
● Can a Child’s Name Be Changed as Part of a Tennessee Divorce?
In Tennessee, the common law practice has been to name a child born during the marriage after the father. This is codified in T.C.A. § 68-3-305 regarding surname designation on birth certificates. A parent can request to have the child’s name changed. In general, the court should not order the child’s surname changed unless doing so promotes the child’s best interests. Halloran v. Kostka, 778 S.W.2d 454 (Tenn. Ct. App. 1988). If both parents agree to change their child’s surname, then convincing the judge that doing so is in the best interest of the child might be easier.
COBRA in Tennessee Divorce
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) is a federal law with a profound impact on many divorced spouses and their dependent children. Pub.Law 99-272, 100 Stat. 82.
Briefly, COBRA allows for a spouse and any dependent children under a covered plan, as qualified beneficiaries, to continue coverage under the employee-spouse’s employer-provided health insurance plan for up to 36 months following divorce or legal separation. Although most Tennessee COBRA plans cover 36 months, many will continue for only 18 or 29 months, depending upon the circumstances.
Prior to COBRA, the divorce event typically terminated insurance coverage for a former spouse. Today, so long as insurance premiums are paid, health insurance coverage can continue under COBRA to protect dependents and a former spouse.
Do not delay obtaining COBRA coverage. The COBRA election period is very short, as short as 30 days from the qualifying event. If the deadline for COBRA election is missed, then health insurance under the employee-spouse’s coverage could terminate. A spouse seeking to elect COBRA coverage will almost always need a specific form from the employer.
After investing so much in your marriage, do not leave yourself vulnerable in Tennessee divorce. Whether you are filing the divorce complaint or responding to allegations of adultery or other grounds for divorce, always consult with an experienced Memphis, TN, divorce lawyer. Familiarize yourself with Tennessee divorce laws, they can determine your options and influence the outcome of your case.
Improve your edge by actively researching Tennessee divorce laws on this website. Prepare yourself for court proceedings, negotiation, and divorce mediation. Be ready to discuss important issues with your lawyer, including child custody, child support, and parenting time; the division of marital property (pensions and retirement plans, too); alimony, COBRA, and more.
References, Resources and More:
- More on Tennessee Divorce Laws and Answers to FAQ’s
- Download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce.
- The Tennessee Divorce Process: How Divorces Work Start to Finish
- Court-approved Tennessee Divorce Forms
- Tennessee Child Support Handbook
- Divorce Referee – Memphis, Shelby County Tennessee
- Divorce Forms – Shelby County, Tennessee Chancery Court Forms
- American Bar Association Family Law Section – Law in the 50 States
- Tennessee Bar Association Family Law Section – News
- Breakin’ Up Is Hard to Do | Tennessee Bar Journal Article