Do I have to have a lawyer to get divorced?

In some cases, it is not required under Tennessee law forone or both parties to have an attorney to get divorced in Tennessee. However,this is usually only the case when the parties do not own any real property(including buildings or land), do not have a pension or retirement benefits,and are in complete and total agreement about how to divide all other personalproperty (i.e. money, cars, bank accounts, debts) and how to share custody ofany children. These are very narrow circumstances, so often at least one partywill be required to have representation by an attorney to get divorced, even ifthe parties agree. Further, it is always a good idea to have an attorney representyou in a divorce so that you can receive legal advice and ensure that yourrights are protected.

What is a “no fault” divorce? Is Tennessee a “no fault”divorce state?

A “no fault” divorce is a divorce where the party filing fordivorce is not required to prove grounds to the Court for the Court to declarethe parties divorced. Tennessee is a “no fault” divorce state, wherein theCourt will enter a divorce decree without either party proving grounds fordivorce. These “no fault” divorces are known as divorces with “irreconcilabledifferences.” However, for the Court to find that the parties have“irreconcilable differences,” the parties must both be in full agreement withthe divorce and the Court must find that the parties have made sufficientwritten agreements for the custody of any children of their marriage and for anagreed division of their property. See generally Tenn. Code Ann. § 36-4-103.

Is a legal separation difference from a divorce?

Yes, a legal separation is different from a divorce, as alegal separation does not end the parties’ marriage, but does allow the partiesto “cease matrimonial cohabitation” under Tennessee law. If the parties do notreconcile following a legal separation, the Court can later grant them adivorce. However, the Court can also hear and determine orders on matters suchas child custody, visitation, support and property issues during legalseparation and must still make an adjudication of the parties’ property rightsin divorce proceedings following a legal separation. Often, the process of alegal separation prior to a divorce just adds time and expenses to theproceedings for parties that do not reconcile. See generally Tenn. Code Ann. §36-4-102.

How long does a divorce take?

How long it takes to get divorce often depends on thecircumstances of the case. If it is a contested divorce, where the parties donot agree, and the Court will have to make a determination about division ofassets and child custody, the typical divorce will likely take at least nine(9) months, but it can take up to a year and a half or longer. However, in anuncontested divorce where the parties agree, there is a minimum “waitingperiod” wherein the divorce must be on file for a certain period of time beforethe Court may enter a final decree of divorce. For parties without minorchildren, the minimum waiting period is sixty (60) days, while the minimum waitingperiod is ninety (90) days for divorces with minor children. The same “waitingperiod” also applies in cases where the defendant party does not participateand a default is sought as well. See Tenn. Code Ann. § 36-4-101 and 36-4-103.

Where can I file for divorce?

In Tennessee, the party who files for divorce may file thedivorce complaint in a few different places, depending on the circumstances,including:

1.      in the county where the parties reside at thetime of their separation (or where both parties reside if they are notseparated at the time of filing), or

2.      if the parties are separated and living indifferent counties, then the county where the defendant, or the party servedwith divorce, resides if they are still living in Tennessee.

3.      If the defendant is not a resident of Tennesseeor is incarcerated, then the party filing for divorce may also file in thecounty where they reside.

See Tenn. Code Ann. § 36-4-105(a).

If I just moved to Tennessee, how long before I can filefor divorce in Tennessee?

If you were not a resident of Tennessee during the marriageor prior to your separation, you must have lived in Tennessee for at least six(6) months before you can file for divorce. See Tenn. Code Ann. § 36-4-104(a).

If my spouse and I are in agreement, do we have to go toCourt?

If you and your spouse are in agreement, whether or not youwill have to go to Court typically depends on the local rules for the Courtwhere your divorce is filed. Some courts do not require the parties to appearif the parties are completely in agreement and there are no other issues withthe filings and divorce paperwork. However, some courts will require one orboth parties to appear for a brief hearing to ensure that the parties are inagreement prior to entering a final divorce decree.

Should I move out?

Whether you should move out of the marital home prior to orafter filing for divorce largely depends on the circumstances of your case.Excluding situations which involve domestic violence or the issuance of arestraining order or an order of protection, there is no law in Tennessee whichrequires one or both parties to move out of the marital home during divorceproceedings. However, moving out of the marital home can impact various issuesinvolved in a divorce, including child custody, spousal support, and propertydivision. Thus, it is often a good idea to consult with an attorney prior to aseparation or either party moving out of the marital home.

Will I have to pay my spouse alimony?

Possibly. In any divorce or separation action, the Court mayaward alimony to be paid by one spouse to the other, though it depends on thenature and circumstances of the case. There are several different types ofalimony, including alimony that is only temporary during the pendency of thedivorce, alimony that ends after a certain period of time, and alimony that canlater be modified under the right conditions. However, when determining whetherto award alimony to a party, the primary considerations the Court will considerare the financial needs of each spouse and the financial ability of each spouseto meet those needs. See generally Tenn. Code Ann. § 36-5-121.

Can I take my spouse off my insurance?

No. When a spouse files for divorce, several temporaryinjunctions are put into effect against both of the parties, including onewhich prevents both parties from “voluntarily canceling, modifying,terminating, assigning, or allowing to lapse for nonpayment of premiums, anyinsurance policy.” This injunction extends to any insurance policy which coverseither of the parties or their children, including life, health, disability,homeowners, renters, and automobile insurance. This injunction remains ineffect until the entry of the final decree of divorce unless the parties agreebetween themselves, or the Court orders a change to the insurance policy. Seegenerally Tenn. Code Ann. § 36-4-106(d).

Can I stop paying for my spouse’s bills?

Generally, no. While an injunction may not be formallyissued regarding household bills and there may not be a specific lawprohibiting this during a divorce, it is a bad idea. Courts typically requireparties to maintain the “status quo” during the pendency of a divorce,including the payment of all current household bills. Further, taking an actionlike this will often lead the opposing spouse to seek temporary spousal supportor a lump sum of temporary spousal support. Finally, all debt incurred by eitheror both spouses during the marriage up until the date of the final divorcehearing, including household bills, is considered marital debt under Tennesseelaw and will have to be allocated at the end of the proceedings. Thus, thefailure of a party to contribute to or pay household bills can affect thedivorce proceedings and the Court’s final determination.

Does Tennessee favor mothers over fathers?

No, Tennessee law does not favor mothers over fathers indivorce or child custody proceedings. In fact, Tennessee’s laws regarding childcustody does not even refer to “mother” or “father,” but uses thegender-neutral term “parent” instead. When making a custody determination, theCourt is required to first focus on the best interest of the child, but mustalso order a custody arrangement that permits both parents to “enjoy themaximum participation possible” in the child’s life. SeeTenn. Code Ann. § 36-6-106(a).

How will the Court decide which parent gets custody ofthe children after a divorce?

Under Tennessee law, the Court is required to base itsdetermination of child custody during a divorce on the best interest of thechild. In accounting for the child’s best interest, the Court must also ensurestability for the child, allow both parents to enjoy maximum participation inthe child’s life, and consider where both parents live as well as an extensivelist of other “relevant factors.” Some of the these “relevant factors” includeeach parent’s current relationship with the child, the past and potentialfuture performance of parenting responsibilities, the parents’ co-parentingrelationship, the child’s emotional needs and development level, and thechild’s preference if they are twelve (12) years or older, as well as otherfactors. See Tenn. Code Ann. § 36-6-106(a).

Will I have to pay child support?

Under Tennessee law, following a divorce, the court may (andoften will) make an order for child support and maintenance by one spouse tothe other. However, whether someone will be required to pay child support andhow much support they will be required to pay is largely dependent on thecircumstances of the case, including how much time each parent spends with thechildren, the income of both parents, and which parent is paying for otherexpenses for the children, such as health insurance premiums and work-relatedchildcare. Other circumstances can also affect whether and how much childsupport someone may be ordered to pay in child support under Tennessee’s ChildSupport Guidelines, which govern child support awards in addition to Tennesseelaw. See generally Tenn. Code Ann. § 36-5-101.

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