Frequently Asked Questions about Divorce

Residency Requirements and Where to File

The plaintiff must be a resident of this state, or if the grounds for divorce occurred outside of the state, either the party must have resided in the state for 6 months preceding the filing of the complaint.  Military personal must be a resident of the state for at least one year prior to filing.  The petition must be filed in the chancery or circuit court in the county where the parties reside at the time of their separation, or in either the country where the defendant resides, or where the applicant resides (T.C.A. § 36-4-104).

Legal Grounds for Divorce

The following are causes of divorce from the bonds of matrimony:

  • Irreconcilable differences between the parties
  • A two-year period of separation, without cohabitation, if there are no minor children involved
  • Impotence
  • Bigamy
  • Adultery
  • Willful desertion for one whole year
  • Conviction of an infamous crime, or sentenced to confinement in a penitentiary for a felony
  • Cruel or inhuman treatment that makes cohabitation unsafe
  • Attempting to take the life of the other
  • Refusal to move to this state, and being willfully absent from the spouse residing in Tennessee for two years
  • The woman is pregnant at the time of the marriage, by another person, without the knowledge of her husband
  • Habitual drunkenness or drug abuse after the marriage
  • Indignities that render the spouse’s position intolerable, and force the spouse to withdraw
  • Abandonment and refusal to provide for the spouse while having the ability to do so

(Based on T.C.A. § 36-4-101)

There are other factors that may be taken into consideration by the court and these factors need to be discussed with your attorney.

Legal Separation

The grounds to file a complaint for a legal separation are the same as for a divorce.  The court may address matters such as child custody, visitation, support and property issues during legal separation upon motion by either party or by agreement of the parties.  The court has the power to grant an absolute divorce to either party if there has been an order of legal separation for more than two years, the parties have not reconciled, and a petition is filed by either party for an absolute divorce. (T.C.A. §36, Sections 36-4-102).

There are other factors that may be taken into consideration by the court and these factors need to be discussed with your attorney.

Property Distribution

Tennessee is an equitable distribution state that divided the marital property equitably without regard to marital fault.  Marital property is all property acquired during the marriage, regardless of whose name is on the title.  Property acquired before the marriage or after a legal separation, inheritances, and gifts, and pain and suffering awards are considered separate property.  The court shall consider the following factors when determining an equitable distribution of the marital property:

  • The length of the marriage
  • The age, physical and mental health, employability, and financial needs of each spouse
  • The contribution of one spouse for future employment and asset acquirement
  • Contributions as a homemaker, wage earner, or parent
  • The value of the separate property of each spouse
  • The economic circumstances of each spouse at the time of the divorce
  • The tax consequences of the proposed property settlement
  • The social security benefits available to each spouse
  • Any other factors relevant to an equitable distribution settlement

The court may award the family home and effects, or the right to live there for a reasonable period of time, to either party, but shall give special consideration to the spouse having physical custody of a child or children of the marriage (T.C.A. §36-4-121).

There are other factors that may be taken into consideration by the court and these factors need to be discussed with your attorney.

Alimony, Maintenance, and Spousal Support

The court may award alimony to be paid by one spouse to the other, or out of either spouse’s property, according to the nature of the case and the circumstances of the parties.  The court may award rehabilitative alimony, periodic alimony, transitional alimony, or lump sum alimony, or a combination of these, taking the following factors into consideration:

  • The relative earning capacity, obligations, needs, and financial resources of each party
  • The relative earning capacity of each party, an the necessity of a party to secure further education and training to improve such party’s earnings capacity to a reasonable level
  • The duration of the marriage
  • The age, mental, and physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease
  • Whether the custodial parent is unable to work outside the home due to the care of a minor child
  • The separate assets of each party
  • The property apportioned to the party
  • The standard of living established during the marriage
  • The contributions as a homemaker and to the education, training or increased earning power of the other party
  • The relative faulty of the parties
  • Any other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties

(Based on T.C.A. § 36-5-121).

There are other factors that may be taken into consideration by the court and these factors need to be discussed with your attorney.

Child Custody

Custody cases are determined by a judge who will rule by looking at what’s in the best interest of the child.  The criteria for custody include the following:

  • The love, affection and emotional ties existing between the parents or caregivers and the child
  • The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment
  • The stability of the family unit of the parents or caregivers
  • The home, school and community record of the child
  • The reasonable preference of the child, if twelve (12) years of age or older.  The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;
  • Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, or child sexual abuse against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred.
  • The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child
  • Each parent or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.
  • The court has jurisdiction to make an initial custody determination regarding a minor child or may modify a prior order of child custody upon finding that the custodial parent has been convicted of or found civilly liable for the intentional and wrongful death of the child’s other parent or legal guardian.

(Based on T.C.A. § 36-6-106)

Child Support

In determining the amount of child support of any minor child, or children of the parties, the court applies as a presumption, the Child Support Guidelines.  The Child Support Guidelines take into account the earnings of both parents, the number of overnights per year each parent spends with the children and other costs for the care of the children expended by one or both parents.  This information is entered into a computer program that can be found online. The computer program calculates the amount of child support owed by one parent to the other.

There are other factors that may be taken into consideration by the court and these factors need to be discussed with your attorney.

Spouse’s Name

There is no provision in the Tennessee Code for the restoration of a wife’s name upon divorce.  However, a wife may resume the use of her former or maiden name after a divorce.