Tennessee Divorce Laws
We are divorce lawyers who represent clients in Clarksville, Montgomery County, and throughout Tennessee.
Divorce can be hard on everyone, but we are here to help you through it.
Divorce can be a stressful and uncertain time in anyone’s life. The prospect of ending a marriage and fracturing a family is a difficult and highly personal decision, and the process affects everyone differently. Having good legal advice is vital for you to know your options and make the right decisions. Even in agreed divorces, mistakes can lead to years spent in litigation and thousands of dollars of needless waste.
With so much at stake, having the right divorce attorney can mean everything for your finances, your children, and your family. With more than forty combined years of practicing law, our attorneys have both the expertise and the experience you need in your corner as you navigate Tennessee’s divorce process to a new chapter in your life. As your advocate, we will work closely with you throughout the process, and we will work tirelessly to protect what is most important to you.
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The Tennessee Divorce Process
Prior to your consultation, you should review some general information about the divorce process and requirements under Tennessee law. Divorce is a highly personal process, however, and no two cases are alike, so you should not substitute this general information for an experienced attorney’s proper legal advice.
Contested vs. Uncontested Divorces
Broadly speaking, there are two types of divorces are available under Tennessee law, an uncontested divorce and a contested divorce:
- Uncontested Divorce: A divorce process in which each spouse agrees on their divorce, including how to divide property and debts, whether spousal support should be paid, and custody and support of any minor children they have together. The spouses sign a written divorce agreement and parenting plan (as applicable), which the divorce judge approves and grants the parties’ divorce on the grounds of irreconcilable differences.
- Contested Divorce: A divorce process in which the spouses cannot reach an agreement on one or more issues in their divorce. In a contested divorce, the spouses submit these issues to the divorce judge to decide after each spouse questions witnesses, submits evidence, and argues their side of the case. If the parties don’t agree that they should be divorced, the filing spouse must also prove to the divorce judge that grounds for divorce exist.
The type of divorce you have will dictate the path you take towards finalizing your Tennessee divorce.
How do you start the divorce process in Tennessee?
Every Tennessee divorce begins with one spouse (known as the “plaintiff spouse”) submitting a Complaint for Divorce (a formal request for a divorce) to the court clerk’s office, who will then issue a Summons (a formal notice to the other spouse (known as the “defendant” spouse) to appear and present his or her side of case).
The plaintiff spouse must usually have someone else personally deliver copies of these documents to the defendant spouse. Of course, special rules apply if the defendant spouse can’t be found or is actively avoiding attempts to deliver the paperwork.
Once served, the defendant spouse has thirty (30) days to file and serve an Answer (a formal response to the Complaint). The defendant spouse can also file a Counter-Complaint if he she also wants a divorce or other relief from the court. If the defendant spouse fails to file an Answer by the deadline, the plaintiff spouse may ask for a Default Judgment, where the plaintiff spouse presents his or her side of the case without the defendant spouse’s participation.
Tennessee law forbids divorcing spouses from doing certain things.
When a contested divorce is filed in Tennessee, an automatic court order known as the Statutory Injunction or Automatic Injunction goes into effect that prohibits both parties from doing the following:
- No Getting Rid of Marital Assets. Transferring, assigning, borrowing against, concealing, or in any way wasting or getting rid of any marital assets without the other spouse’s consent.
- No Changing or Cancelling Insurance Policies. Voluntarily canceling, modifying, terminating, assigning, or failing to pay premiums for any insurance policy (life, health, disability, homeowners, renters, automobile, etc.) that covers or names as beneficiaries either the spouses or their children unless either the other spouse or the divorce court consents.
- No Harassment or Abuse. Harassing, threatening, assaulting or abusing the other spouse.
- No Belittling Remarks. Making belittling remarks about the other spouse in the presence of any of the parties’ children or to either spouse’s employer.
- No Hiding or Destroying Electronic Evidence. Hiding, destroying, or spoiling any evidence electronically stored or on computer hard drives or other memory storage devices.
- No Relocating with Children. Except where a parent has a well-founded fear of physical abuse, relocating any of the parties’ children outside of Tennessee, or more than one hundred (100) miles from the marital home, unless either the other parent or the divorce court consents.
In addition to other negative consequences, willful violation of the Statutory Injunction may result in a finding of contempt, which can result in a $50.00 fine and up to ten (10) days in jail for each act of contempt.
How long does it take to get divorced in Tennessee?
Tennessee law requires that divorcing spouses undergo a “cooling off” period prior to the divorce judge divorcing them. For couples without children, this period is sixty (60) days from the date the Complaint is filed; for couples with minor children together, Tennessee law extends this period to ninety (90) days.
Beyond this mandatory waiting period, the time it takes to resolve a divorce in Tennessee depends upon the circumstances of the case, but a reasonable range for a contested divorce is between six and eighteen months.
Is temporary relief available during the divorce process?
While your divorce is pending, numerous types of temporary relief are potentially available to you. Some common types of relief are as follows:
- Temporary Parenting Plans or Visitation Orders
- Temporary Financial Support
- Exclusive Possession of Marital Home
- Relief from the Statutory Injunction
- Parental Relocation
- Temporary Restraining Orders and Injunctions
How does a lawyer gather information during the divorce process?
Prior to trial, divorcing spouses will often participate in the “discovery” process where each spouse requests that the other spouse produce information or evidence needed to prepare for trial. There are four primary types of “discovery” available when going through a divorce in Tennessee:
- Interrogatories: Written questions that a party must answer in writing and under oath
- Request for Production of Documents: A written request that a party submit certain documents or records
- Requests for Admission: A written request that a party admit that certain facts are true, usually in order to narrow down the number of issues that will be contested
- Depositions: Taking a witness’ sworn oral testimony with a court reporter later producing a transcript of the testimony.
Tennessee has broad discovery rules: A party to a civil lawsuit (like a divorce) is entitled to obtain information from the other party regarding any relevant issue in the case, even if the requested evidence would not necessarily be admissible at trial. Nevertheless, a party may sometimes have a valid objection to the other’s request to be objectionable. In these situations, the best thing to do is to ask the judge for a protective order in which the judge may excuse the party from responding to the objectionable request or permit discovery of the objectionable information with certain terms and conditions.
Except for depositions, discovery responses are usually due within thirty (30) days, and failure to respond may result in the divorce judge issuing an order compelling the non-cooperating party’s responses. If the non-cooperating party disregards the judge’s order, then the judge may issue sanctions against that party, including but not limited to the following:
- Ruling in favor of the other side on any issues covered by the discovery request
- Refusing to permit the non-cooperating party from introducing any evidence that should have been provided in discovery
- Dismissing the case or entering a default judgment in favor of the other party
- Holding the non-cooperating party in contempt and imprisoning them until they obey the court’s order
- Awarding the other party his or her reasonable attorney’s fees
In addition to obtaining information from the other side, our firm’s investigation often also includes interviewing third-party witnesses and obtaining further documents or records from third parties for use at trial. As with every other aspect of Tennessee’s divorce process, our attorneys will work closing with you throughout the discovery process so that you stay informed and involved throughout your divorce.
You will probably have to attend mediation, and that’s probably a good thing.
In contested divorces, Tennessee law generally requires that divorcing spouses attend mediation before the judge will hear their case. A “mediator” is the name for a neutral third party, usually another attorney, who assists the parties resolve their disputes without having to go to trial. The mediator can help the parties resolve some or all their disputes by agreement.
Both judges and lawyers favor mediation for several reasons, including the following:
- It avoids unnecessary stress caused by the uncertainty of trial
- It maintains the spouse’s privacy by avoiding a nasty, public divorce trial
- It is cheaper for the parties and puts less strain on the court’s resources
- It can help divorcing parents learn healthy ways to resolve potential future disputes about their children
What is mediation like?
Mediation usually begins with the mediator meeting with both spouses and their attorneys to give an overview of the process and answer any questions they may have. Afterwards, the mediator usually places the parties and their attorneys in separate conference rooms, with the mediator helping them reach an agreement by communicating offers and counteroffers between the spouses and providing each spouse with his or her candid perspective on the case. The process can take up to four hours or longer to complete, and each party is generally responsible for half of the mediator’s fee.
To encourage divorcing spouses to be open and candid with the mediator about their case, Tennessee law generally treats private information disclosed to the mediator as privileged and confidential, and it prohibits either spouse from introducing any settlement offers at trial if the parties are unable to reach an agreement.
While mediation is usually mandatory under Tennessee law, exceptions do exist. The divorce judge can excuse the parties from attending mediation under the following circumstances:
- The parties can’t afford mediation
- The parties have signed a comprehensive written divorce agreement
- The parties have participated in a settlement conference with the judge
- Mediation is highly likely to fail
- The court finds other good cause to excuse mediation
Furthermore, in cases where one spouse has been found to have committed domestic abuse or family violence that results in either an Order of Protection or a criminal conviction, the divorce court cannot order mediation unless:
- The domestic abuse victim agrees to mediation
- Mediation is conducted by a certified mediator who is trained in domestic violence in a specialized manner that protects the victim’s safety
- The victim can attend mediation with a supporting person or his or her choice
What happens if mediation fails?
If the parties can’t reach an agreement at mediation, then they must submit their case to the divorce judge, who will decide several issues, including the following:
- Deciding whether grounds for divorce exist
- Classifying, valuing, and dividing marital assets and debts
- Deciding whether to award spousal support, and if so, its amount, duration, and conditions
- Deciding what parenting plan would serve the best interests of the parties’ children
- Deciding whether to award either spouse their costs and/or attorney’s fees
How do you prepare for a divorce trial in Tennessee?
It goes without saying that it’s important for your divorce lawyer to show up to your trial prepared, and we prepare for trial in several ways, including:
- Interviewing and subpoenaing any necessary witnesses
- Obtaining any necessary documents or other evidence
- Researching any applicable laws and legal opinions
- Gathering information from the other spouse in pretrial discovery
- Preparing you to testify to the judge—and to withstand questioning by your spouse’s lawyer
- Outlining how we expect to prove the key facts and win the key arguments in your case
- Filing a thorough brief for the judge to review before trial
What happens during the divorce trial?
Tennessee courts handle divorce trials as with any other non-jury civil trial. First, both sides are given the opportunity to make opening statements, informing the judge of what each lawyer believes the evidence and testimony will show.
Following opening statements, the plaintiff spouse’s lawyer presents evidence and calls witnesses. When the plaintiff spouse is done, the defendant spouse’s lawyer presents his or her side of the case. The plaintiff spouse may then have an opportunity to submit evidence in rebuttal.
When each side is done calling witnesses and submitting evidence, both lawyers make closing remarks, in which each lawyer argues in favor of his or her side of the case. When each side is done, the judge will either announce his or her decision right then and ask the winning side to prepare a written order, or the judge will “take the matter under advisement” and issue a written decision later.
Once the divorce court has signed the written Final Decree of Divorce, each side has thirty (30) days to either file motions with the divorce court asking it to change or set aside its decision or to appeal the divorce court’s decision to another court. After thirty (30) days have passed, however, the divorce court’s decision becomes final.
How do you appeal the divorce court’s decision?
Tennessee divorces are appealed to the Tennessee Court of Appeals, who will review the divorce court’s decision to make sure that it follows the law. Generally, the appeals court will uphold the divorce court’s decision on whose testimony or evidence it believed, reviewing only the divorce court’s application of the law to the facts that it decided were true. The appeals court does not hear any new witnesses, and it does not review any new evidence. It only reviews the “record”, which usually consists of the following:
- Transcripts from the trial and any other relevant hearings
- Any other evidence formally introduced at trial by each side
- Other documents filed in the case like motions, pleadings, and orders
After reviewing each spouse’s written briefs and hearing oral arguments, the appeals court will render an “opinion”, in which it will either uphold or reverse the trial court’s decision. If the appeals court reverses, it will usually send the case back to the trial court with instructions on applying its opinion to the case.
Who can file for divorce in Tennessee?
Only Tennessee residents are permitted access to Tennessee courts. So, to file for divorce in Tennessee, you must meet one of the following qualifications:
- You or your spouse has resided in Tennessee for at least six (6) months before filing for divorce
- The spouse filing for divorce resided in Tennessee when the grounds for divorce occurred
If you are a member of the U.S. Armed Forces stationed in Tennessee, you can be considered a Tennessee resident after living here for at least one (1) year.
What if your spouse doesn’t live in Tennessee?
In addition to meeting the residency requirements, you generally should be careful about filing for divorce in Tennessee if your spouse has never lived here during your marriage or is unlikely to be served with the divorce papers in Tennessee. While a Tennessee court may still be able to declare you divorced from your spouse, it may be unable to address other issues like dividing your marital property and debts or awarding spousal support unless your spouse agrees to it.
What County Should You File in?
If a Tennessee court can hear your divorce, the next question is: Which county do you have to file in? This is known as the “venue” for the divorce. Tennessee law permits you to file for divorce in any of the following counties (as applicable):
- In the Tennessee county the parties lived in when they separated
- In the Tennessee county in which the non-filing spouse resides
- If the non-filing spouse doesn’t live in Tennessee or is incarcerated, then in the Tennessee county in which the filing spouse resides
Do you have more questions about Tennessee divorce laws? Contact us today by calling (931) 398-5308.
Grounds for Divorce in Tennessee
As we previously discussed, Tennessee has two kinds of divorces: contested divorces and uncontested divorces. In an uncontested divorce, you do not need to prove grounds for divorce. You and your spouse simply agree that you have “irreconcilable differences.” In a contested divorce, however, the plaintiff spouse must prove that one of more of the following grounds for divorce exist:
- The defendant spouse is unable to have children
- The defendant spouse is guilty of bigamy
- The defendant spouse is guilty of adultery
- The defendant spouse has deserted the plaintiff spouse for two years or more
- The defendant spouse has been conviction of an infamous crime.
- The defendant spouse is a felon sentenced to prison.
- The defendant spouse is guilty of other inappropriate marital conduct against the plaintiff spouse.
- The defendant spouse has attempted to murder the plaintiff spouse.
- The defendant spouse is a habitual drunk or drug abuser.
- The wife was pregnant with another man’s child at the time of the marriage without the husband’s knowledge
- The defendant spouse has refused to move to Tennessee with the plaintiff spouse and been absent from Tennessee for more than two years.
- The defendant spouse has offered such indignities to the plaintiff spouse’s person as to render the spouse’s position intolerable. Thereby forcing the spouse to withdraw from the marriage.
- The defendant spouse has abandoned the plaintiff spouse and has refused or neglected to provide for him or her while having the ability to do so.
- Both parties have been separated for more than two (2) years and have no minor children together.
The grounds for divorce can overlap with other legal issues in your divorce, as Tennessee courts can consider evidence of at-fault grounds when determining alimony and, in certain cases, child custody and visitation.
Defenses do exist to certain grounds for divorce. For example, the following defenses to adultery exist:
- The plaintiff spouse is also guilty of adultery
- The plaintiff spouse has admitted the defendant spouse “into a conjugal society and embraces after knowledge of the criminal act”
- The plaintiff husband allowed the defendant wife to engage in prostitution for which the husband received money
- The plaintiff husband “exposed the wife to lewd company, whereby the wife became ensnared to the act or crime of adultery
If the ground for divorce is inappropriate marital conduct, another available defense is that the plaintiff spouse’s own “ill conduct” served as a “justifiable cause” for the inappropriate marital conduct the plaintiff spouse is alleging.
Want more information about potential grounds for, or defenses to, divorce? Contact us today to discuss your case by calling (931) 398-5308.
What types of assets and debts can a Tennessee divorce court divide?
A Tennessee divorce court can divide only “marital” assets and debts, which are generally those that either spouse has accumulated during the marriage. On the other hand, “separate” property can include:
- Property a spouse acquired before the marriage.
- Example: If you bought and paid for a car before you were married, it may be “separate property.”
- Property acquired in exchange for property acquired before the marriage.
- Example: If you had a retirement account before you were married and withdrew some of the money to buy that car, it may be “separate property.”
Income from or appreciation of property a spouse owned before the marriage.
- Example: If your retirement account earned interest during the marriage, the interest would also be “separate property."
Property acquired by a spouse at any time by gift, bequest, devise or descent.
- Example: If one of your relatives died and left you a house in their will, it may be “separate property.
Pain and suffering awards, victim of crime compensation awards, future
medical expenses, and future lost wages.
- Example: If you were injured in an accident and received a settlement, it may be “separate property” regardless of whether you received it during your marriage.
Property a spouse acquired after an order of legal separation involving
a final disposition of property.
- Example: If you had a court-ordered legal separation that divided your property, and you later bought a car, that car may be “separate property.”
It is important to note that “separate property” may become “marital property” under certain conditions. For example, if you owned a car before you were married, but your spouse helped contribute to your ability to keep the car (by making the payment, taking care of your children while you worked, etc.), it may have become “marital property.” Separate property can also become marital property if you took other obvious steps to convert it, like adding your spouse to your home’s deed or vehicle’s title.
In an uncontested divorce, the divorce court will approve your agreement on how to classify your property and debts. In a contested divorce, the court will make its own classifications.
How does the divorce court value and divide marital property and debts?
Once the divorce court has decided which assets and debts it may divide, it must then determine the assets and debts’ combined value as of the date of the parties’ divorce. The divorce court then awards each party what it decides is a fair share of the marital estate in consideration of the following:
- The duration of the marriage
- Each spouse’s age, physical health, and mental health
- Each spouse’s vocational skills, employability, and earning capacity
- Each spouse’s estate, financial liabilities and financial needs of each of the parties
- Each spouse’s contributions to the other’s education, training or increased earning power
- Each spouse’s relative future ability to acquire capital assets and income
- Each spouse’s contribution to the acquisition, preservation, appreciation, depreciation or dissipation (i.e. wasteful expenditures) of the marital or separate property
- The value of each spouse’s separate property
- Each spouse’s estate at the time of the marriage
- Each spouse’s current economic circumstances
- The tax consequences to each spouse, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the assets
- The amount of social security benefits available to each spouse
- Any other factors the divorce court believes are necessary to consider
Do you have additional questions about Tennessee’s divorce laws regarding marital asset and debt division? Consult us today to schedule your free consultation by calling (931) 398-5308.
Spousal Support or Alimony
Tennessee law permits the divorce court to order a party to pay spousal support (also known as alimony) to the financially disadvantaged spouse in divorce, legal separation, or separate maintenance cases, which is based upon the following public policy:
Spouses have traditionally strengthened the family unit through private arrangements whereby one spouse focuses on nurturing the personal side of the marriage, including the care and nurturing of the children, while the other spouse focuses primarily on building the economic strength of the family unit. This arrangement often results in economic detriment to the spouse who subordinated such spouse's own personal career for the benefit of the marriage. It is the public policy of this state to encourage and support marriage, and to encourage family arrangements that provide for the rearing of healthy and productive children who will become healthy and productive citizens of our state.
The general assembly finds that the contributions to the marriage as homemaker or parent are of equal dignity and importance as economic contributions to the marriage. Further, where one (1) spouse suffers economic detriment for the benefit of the marriage, the general assembly finds that the economically disadvantaged spouse's standard of living after the divorce should be reasonably comparable to the standard of living enjoyed during the marriage or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.
Tennessee Code Annotated, Section 36-5-121(c).
What types of spousal support are available in Tennessee?
Tennessee has four kinds of spousal support:
Alimony “in futuro” – Also known as “periodic alimony,” this is “traditional”
spousal support, which is paid to the recipient on a long-term basis.
This is usually only awarded in long-term marriages in which one spouse
served as a homemaker or otherwise lacks meaningful earning capacity relative
to the other spouse. The key facts:
- Alimony in futuro is awarded for an indefinite period.
in futuro is modifiable based upon a material change in circumstances
- If the recipient moves in with a third party, a rebuttable presumption arises that the third party is contributing to the recipient’s support (or the recipient is contributing to the third party’s support), and the recipient no longer needs support, either in whole or in part.
- Alimony in futuro terminates automatically and unconditionally upon the recipient’s death or remarriage, and the recipient must notify his or her former spouse immediately upon getting remarried.
- Alimony “in solido” – This is “lump sum” spousal support, where the recipient receives a one-time payment of support. This is usually the mechanism used to award costs or attorney’s fees or to otherwise compensate a spouse out of the other’s property. The key facts:
- Alimony in solido is not modifiable unless the parties otherwise agree.
- Alimony in solido cannot be awarded out of future earnings.
- Alimony in solido may be awarded in addition to any other kind of spousal support.
- While often paid as a lump sum, alimony in solido may also be paid in installments.
- Alimony in solido does not terminate upon the payor’s death or remarriage.
- Rehabilitative Alimony – This type of spousal support is designed to enable the financially disadvantaged spouse to achieve, with reasonable effort, an earning capacity that will permit him or her to enjoy a standard of living comparable to either what he or she enjoyed during the marriage or to the post-divorce standard of living the other spouse will likely enjoy. For example, rehabilitative alimony may be awarded in order to permit the financially disadvantaged spouse attend college or other training. The key facts:
- Rehabilitative Alimony is awarded for a limited period.
- Rehabilitative Alimony is modifiable based upon a substantial and material change of circumstances.
- The recipient can request that the Rehabilitative Alimony award be extended if all reasonable efforts at rehabilitation have been made and have been unsuccessful.
- The recipient can request that Rehabilitative Alimony be converted to Alimony in futuro if he or she has only been partially rehabilitated.
- Rehabilitative Alimony terminates upon the death of the recipient, as well as upon the death of the payor, unless otherwise specified.
- Transitional Alimony – This type of spousal support is awarded when rehabilitation is not necessary or feasible, but the financially disadvantaged spouse needs help to adjust to the economic consequences of a divorce. The key facts:
- Transitional Alimony is paid on a monthly basis for a limited period.
- Transitional Alimony is not modifiable unless the parties agree or the court orders otherwise.
What goes into the divorce court’s decision to award spousal support?
While several factors govern the divorce court’s spousal support award, the two primary considerations are whether one party needs it, and if so, the extent to which the other party can pay it. The other relevant factors are as follows:
- Each spouse’s relative earning capacity, obligations, needs, and financial resources, including income from pension, profit sharing, or retirement plans
- Each spouse’s relative education and training
- Each spouse’s ability and opportunity party to secure such education and training necessary to improve his or her earning capacity to a reasonable level
- The duration of the marriage
- Each spouse’s age, physical condition (including any disabilities), and mental condition of each party
- The extent to which it would be undesirable for custodian of the spouse’s children to seek employment outside the home
- Each spouse’s separate assets
- The divorce court’s division of provisions the spouse’s marital property
- The spouses’ standard of living during the marriage
- Each spouse’s contributions to the marriage as breadwinner and homemaker
- Each spouse’s contributions to the other’s education, training or increased earning power
- Each party’s relative fault in the divorce, to the extent the divorce court deems it appropriate to consider
- Such other factors, including the tax consequences to each party, the divorce court determines are necessary to reach a fair result under the circumstances
Do you have additional questions about Tennessee’s spousal support or alimony laws? Contact us today to schedule your free consultation by calling (931) 398-5308.
When can a Tennessee divorce court decide child custody and support issues?
Fair warning, child custody jurisdiction laws can get a little complicated, so please contact us with any questions you have about them. Generally, a Tennessee court can only address custody and support issues for children who have lived in Tennessee for at least six (6) months leading up to filing for divorce. The state where a child has lived for a least six (6) months in a row is called his or her “home state.” If the child has moved within the past six (6) months, then the courts will look to where the child previously lived to see whether it was the child’s “home state” when he or she moved. This is known as the child’s “extended home state.”
If the child doesn’t have either a “home state” or an “extended home state,” then Tennessee courts will address child custody issues if both of the following are true:
- The child and at least one parent have a “significant connection” with Tennessee other than just being here; and
- “Substantial evidence” is available in Tennessee concerning the child’s “care, protection, training, and personal relationships”
If none of the above is true, then the Tennessee divorce court may not have jurisdiction to address issues regarding your children, and you should consult with us about your options. Once a Tennessee court has issued an initial custody order or parenting plan, it has exclusive authority over it until one of the following is true:
- It determines that the child and at least one parent no longer have a “significant connection” with Tennessee and that “substantial evidence” is no longer available in Tennessee concerning the child’s “care, protection, training, and personal relationships”; or
- Any court has determined that the child, you, and your spouse no longer currently live in Tennessee
If another state has issued a child custody order, then it can be registered and enforced in Tennessee, but Tennessee can only modify the order if Tennessee is the child’s “home state” or “extended home state” and one the following is true:
- The other state decides it no longer has jurisdiction
- The other state decides that Tennessee would be a more convenient place to resolve the case
- The child, the child's parents, and any person acting as a parent do not currently reside in the other state
Parenting Plans in Tennessee
Tennessee law has moved away from one parent having “custody” of the children, with the other parent receiving “visitation.” Tennessee law now seeks to maximize each parent’s involvement in their children’s lives to the extent practical so long as it’s in the children’s best interests. While Tennessee custody orders designate a “primary residential parent” and an “alternate residential parent,” Tennessee law now permits the parents to be jointly designated primary residential parent under appropriate circumstances.
Tennessee handles most issues pertaining to child custody, visitation, and support through the parenting plan, which addresses the following issues:
- Day-to-day decision-making authority
- Supervision of Parenting Time
- School Vacations
- Division of long-distance transportation costs
- Provisions for parents without driver’s licenses
Allocation of Major Decision-making Authority
- Educational decisions
- Non-emergency health care
- Religious upbringing
- Extracurricular activities
- Other major decisions
- Retroactive Child Support
- Requiring parents to share financial information annually
- Health and Dental Insurance
- Division of Uninsured Medical Expenses
- Life Insurance
- Federal Income Tax Exemptions
- How to Handle Disagreements about the Plan
- Notice Regarding Parental Relocation
- Other Special Provisions
Tennessee parenting plans also contain a notice of Tennessee’s parental rights statute, which, subject to other applicable law or court orders, provides each parent with the following rights:
- The right to unimpeded telephone conversations with the child(ren) at least twice a week at reasonable times and for reasonable durations
- The right to send mail to the child(ren) which the other parent shall not destroy, deface, open or censor
- The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any hospitalization, major illness or injury, or death of the child(ren)
- The right to receive directly from the child's school any educational records customarily made available to parents
- The right to receive copies of the child's medical, health or other treatment records directly from the treating physician or healthcare provider
- The right to be free of unwarranted derogatory remarks made about such parent or such parent's family by the other parent to or in the presence of the child
- The right to be given at least forty-eight (48) hours’ notice, whenever possible, of all extracurricular school, athletic, church activities, and other activities in which parental participation or observation would be appropriate, and the opportunity to participate in or observe them
- The right to receive reasonable notice and an itinerary, intended destinations, and contact telephone numbers if the other parent leaves the state with the child(ren) for more than forty-eight (48) hours
- The right to reasonable access and participation in the child(ren)’s education, including the right of access to the child during lunch and other school activities
Each parent asking that the court adopt his or her proposed parenting plan, including an Agreed parenting plan, must certify under penalty of perjury that:
- The proposal is made in good faith
- The parenting plan is in the child(ren)’s best interests
- The information used to calculate child support is true and correct.
In any case involving child custody and visitation, each parent must take a mandatory parenting class, which can be taken online. Failure to take this parenting class may result in the court refusing to adopt the offending parent’s proposal, and it can even lead to a finding of contempt, which can lead to fines and jail time.
How does the court decide which parenting plan to adopt?
In making any decision regarding a minor child, the court’s overriding consideration is the best interests of the children involved. In making this “best interests” determination, Tennessee law requires the court to consider the following factors:
- The strength, nature, and stability of the child's relationship with each parent
- Whether one (1) parent has performed most of the parenting responsibilities relating to the child’s daily needs
- Each parent's past and potential for future performance of parenting responsibilities
- Each parent’s willingness and ability to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the child’s best interests
- Each parent’s likelihood to honor and facilitate court-ordered parenting arrangements and rights
- Either parent’s history of denying parenting time to either parent in violation of a court order
- Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in the proceedings
- Each parent’s disposition to provide the child with food, clothing, medical care, education and other necessary care
- The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities
- The love, affection, and emotional ties existing between each parent and the child
- The child’s emotional needs and developmental level
- Each parent’s moral, physical, mental, and emotional fitness as it relates to his or her ability to parent the child. However, a parent’s disability shall not create a presumption for or against awarding custody to that party
- The child's interaction and interrelationships with siblings, other relatives and step-relatives, and mentors
- The child's involvement with his or her physical surroundings, school, or other significant activities
- The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment
- Evidence of physical or emotional abuse to the child, to the other parent or to any other person
- The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with 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 upon request. The preference of older children should normally be given greater weight than those of younger children
- Each parent's employment schedule, and the court may make accommodations consistent with those schedules
- Any other factors that the court deems relevant
Can you modify a parenting plan?
A parent who wants to modify a parenting plan or residential schedule must prove that a material change of circumstances has occurred, which can include failures to adhere to the parenting plan or circumstances that making the existing parenting plan no longer in the children’s best interests. A parent doesn’t need to prove a substantial risk of harm to the child.
A change to the residential schedule can be warranted by significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent's living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.
If a material change of circumstances has occurred, then the court must modify the existing parenting plan and a new parenting plan that serves the child(ren)’s best interests.
Temporary parenting plans are prohibited during modification actions unless the parents agree or the court determines that the child(ren) will be subject to a likelihood of substantial harm absent temporary modification.
How do you calculate child support?
Tennessee’s Department of Human Services publishes a child support calculator that you can use to estimate the child support award in your case. Click here to view the Tennessee child support calculator.
What goes into a child support award in Tennessee?
In Tennessee, child support is calculated based upon the “income shares” model in which both parents’ incomes are added together, and each parent is responsible for their proportional share of expenses, subject to adjustments for parenting time and certain expenses.
The Tennessee Department of Human Services publishes the specific Tennessee child support rules, which are known as the Tennessee Child Support Guidelines. It is extremely important that parents comply with applicable Tennessee child support laws and any child support orders because Tennessee courts have found that private agreements between parents are void against public policy, which can leave the child support payor on the hook for a potentially substantial retroactive child support award.
How do you determine a parent’s income in calculating child support?
The first factor in calculating child support in Tennessee is each parent’s income. “Income” is defined as “all income from any source (before deductions for taxes and other deductions such as credits for other qualified children), whether earned or unearned[.]”
If a parent is voluntarily unemployed or underemployed, then the Court will assign him or her a monthly income based on his or her education, training, and employment history for the purpose of calculating child support.
Do any specific child-related expenses factor into child support?
Another factor that affects the final child support award are certain expenses that will offset a parent’s income in the child support calculation. These expenses can include:
- Health insurance premiums
- Recurring out-of-pocket medical expenses
- Work-related childcare expenses
- Other child support awards
- Other children residing with a parent
How does parenting time factor into child support?
The final factor in calculating child support is the number of days each parent spends with the children each year. For child support purposes a “day” of parenting time is when “the child spends more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care, control or direct supervision of one parent[.]”
The greater the amount of time that a parent spends caring for the children, the more the Tennessee Child Support Guidelines presume that parent is financially contributing to the children’s care, which the final child support award will reflect.
Can you modify child support?
Tennessee law permits parents to modify child support if their current financial circumstances would result in a fifteen percent (15%) different in child support, using the child support worksheet. You can also modify a child support deviation if the circumstances that led to the deviation have changed.
Our divorce attorneys provide aggressive, client-focused representation clients in Clarksville, Montgomery County, and throughout Middle Tennessee.
Divorce is a complicated process, which can be unpredictable and extremely difficult, and when spouses hire legal representation or when children are involved, it can quickly become combative.
If you are facing a divorce, it is essential to speak with a qualified and experienced attorney about your particular situation, your goals, and your options. Our firm emphasizes establishing and maintaining a close working relationship with each person we represent because Tennessee divorces depend so heavily on each client’s individual circumstances.
Can you deviate from the standard child support amount?
The court can deviate from the presumptive child support amount, but the child support order must state the following:
- The original presumptive child support amount
- The reasons for the deviation
- How using the presumptive child support amount would be unjust or inappropriate under the circumstances of the case
- How deviating from the presumptive child support amount serves the best interests of the parties’ children under the circumstances of the case
Reasons to deviate can include extraordinary educational expenses, increased travel expenses if a parent relocates, or any other special expenses that exceed seven percent (7%) of the presumptive child support amount.
It is extremely important that child support deviations comply with the Child Support Guidelines and other applicable law. Otherwise, the child support payor runs the risk that the deviation is void against public policy, finding him or herself on the hook for a potentially substantial retroactive child support award.
Do you have additional questions about Tennessee’s divorce laws? Contact us today to schedule your free consultation by calling (931) 398-5308.