Domestic Relations FAQs
Tennessee Domestic Relations Attorney
Attorney Joe H. Byrd, Jr., frequently answers the following questions about divorces and legal separations.
What are the residency requirements for divorce in Tennessee?
To file for divorce, you or your spouse must be a resident of the State of Tennessee for at least six months or an act of divorce must have been committed by one of the parties in the State of Tennessee.
What are the grounds for divorce in Tennessee?
Tennessee law defines two types of divorce:
- Fault-based divorce – requires proof of one of 15 grounds for divorce, or the parties may stipulate that either or both are at fault. Adultery, desertion, cruel and inhuman treatment, habitual abuse of alcohol or narcotic drugs, or conviction of a felony accompanied by a sentence of confinement in the penitentiary are among the grounds for fault-based divorce. A two-year separation is also a ground for divorce.
- Irreconcilable differences – requires no proof of fault, however a signed agreement is required. An irreconcilable differences divorce takes a minimum of 60 days in cases where there are no children, and a minimum of 90 days if there are children.
How is child support determined in Tennessee?
The State of Tennessee uses an “Income Shares” model for determining child support payments. The “Income Shares” model requires the court to review both parents’ incomes before setting a child support amount. The calculation will also apportion the cost of health insurance, child-care and other re-occurring expenses.
How is property divided when couple divorces?
Tennessee is an equitable distribution state that divides the marital property equitably without regard to marital fault. Marital property is all property acquired during the marriage. Property acquired before the marriage or after a legal separation, inheritances and gifts, and pain and suffering awards are usually considered separate property. The court will 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, disability, and financial needs of each spouse;
- The contribution of one spouse to the education or increased earning power of the other spouse;
- The relative ability of each 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 and may give special consideration to the spouse designated as the Primary Residential Parent of the parties’ child or children
How is alimony determined in a Tennessee divorce?
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, 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 capability of each party and the necessity of a party to secure further education and training to improve such party’s earning 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 fault of the parties;
- Any other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
What are common financial mistakes that people make in a divorce?
Not discussing the tax ramifications of divorce with an accountant and taking full advantage of the federal income tax code are among the most common mistakes. The transfer of property in a divorce settlement, for example, may have hidden consequences. If a party sells property allocated to him/her pursuant to a Final Decree of Divorce, there may be capital gains taxes associated with the sale not taken into consideration when valuing the asset. There are also ways that divorcing couples can use the federal income tax code to their advantage in a divorce settlement. Rather than having a settlement agreement with separate child support and maintenance provisions, an accountant may recommend that a divorcing couple characterize support as unallocated support to allow the payor to fully deduct all support paid and the payee to claim all support as income.
Is it better to take property, such as the house, instead of spousal support or a part of a pension?
You should discuss the tax consequences with an accountant. Your specific financial situation and the amount of risk you are prepared to take are both important factors that will help you decide which choice is better for you. Often the total spousal support will exceed the amount being offered in lieu of spousal support, especially so, if spousal support is reviewable. Nonetheless, there are still risks associated with receiving spousal support. If you remarry, spousal support will terminate. The payor of support may lose his job and seek a modification or termination of the support amount. Nor is taking part of a pension or other retirement fund risk free. The money does grow tax-free, but it cannot be accessed without negative tax consequences for many years.
What are the grounds for legal separation in Tennessee?
The grounds to file a complaint for a legal separation are the same as for a divorce. The court can 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.
Can a wife use her maiden name after a divorce?
Yes. She may resume the use of her former or maiden name upon the court ordering same.