Outline of Tennessee Family Law
by Sobieski, Messer & Associates, PLLC
- Living Together
- Prenuptial Agreements
- Entering a Marriage
- Marital Rights and Responsibilities
- Ending a Marriage
- Child Custody/Parenting Plans
- Child Support
- Family Violence
- Grandparent Rights/Visitation
Tennessee does not have common law marriage. Tennessee courts do, however, recognize common law marriages created in other states when the couple still lives together in Tennessee. In some cases, a couple will not be allowed to deny a marriage that existed under common law in a different state where the rights of someone else would be compromised if the existence of the "marriage" were denied.
It is not yet clear whether Tennessee ultimately will honor common law marriage for same sex couples. Since Tennessee does not have common law marriage, Tennessee divorce laws do not specifically apply to "living together" arrangements. Issues such as child custody, co-parenting time, property rights, responsibility for debts and inheritance rights are not subject to divorce law. Before you decide to live with someone without marriage, you should consider carefully the risks and limitations of that arrangement.
Problems often arise over property and/or debts that a couple has acquired during their relationship when they separate or when one person dies. There is some uncertainty as to how the Tennessee courts will treat such property and/or debts or what rules will be applied to divide the property and fix the responsibility for debts.
If you are concerned about what might happen to property you own before you enter into a relationship, or what might happen to the property you acquire during the relationship, you and your partner should make a written agreement about how you will divide the property and debts. Such a written agreement might help you avoid going to court or might help the court decide how to divide the property and debts. You should understand, though, that the court may not be required to follow your written agreement.
If you and your partner have a child together, you may seek custody and child support for that child through the Juvenile Court. There is no automatic right to child support, you must first establish legal paternity through court. Either parent may file to establish the legal relationship between the child and the father. The court will then decide who will be the Primary Residential Parent (custodian), who will have decision-making authority for the child, and a schedule for co-parenting time (visitation). If you are receiving state benefits on behalf of the child, the state Child Support Services may file (without your permission ) to establish paternity and child support.
Signing a birth certificate does not automatically "legitimize" your child. A court hearing may be required before your child has full legal rights.
Prenuptial Agreements (also called antenuptial agreements) are contracts entered into before marriage that describe how property and other assets and/or debts will be divided if the couple divorces. Prenuptial agreements are common where there are children by prior marriage(s) and a parent wants to secure assets for that parent's children and/or insure that not all of the assets will go to the other spouse's children from a prior marriage. Prenuptial agreements are also helpful when one person has significantly more assets or income than the other, or where one person wants to insure that separate property remains separate.
Prenuptial agreements are favored in Tennessee, provided that certain requirements are met. Under Tennessee Code Annotated § 36-3-501, for a valid prenuptial agreement to exist, both parties must enter into the agreement freely, knowledgably, and in good faith. There must be no duress or undue influence on either party. If the agreement is valid, a prenuptial agreement may limit or prohibit alimony, as long as the agreement is not over-reaching and does not leave one party so impoverished that he or she must be on public support. Prenuptial agreements, however, may never limit child support.
For an agreement to be entered into knowledgably, there must be full and fair disclosure of all assets. Each party must be given "a clear idea of the nature, extent, and value of the other party's property and resources." Randolph v. Randolph, 937 S.W.2d, 815 (1996). This is so the other party can make an intelligent decision about what rights he/she is surrendering. If the parties signing the prenuptial agreement are represented by counsel at the time of signing, that helps to establish that the agreement was entered into knowledgably.
A valid marriage in Tennessee requires consenting, capable parties and a ceremony performed by an ordained Minister, Rabbi, Judge, or a Member of a Legislative Body. The parties must obtain a license from the County Clerk in the county where one of the parties resides at least three days before the ceremony. Neither a blood test, nor a physical exam is required in Tennessee for a marriage license. Both people must be at least eighteen years of age, but with parental consent a person can marry as young as sixteen. If the parties present a certification that they completed pre-marital counseling, the marriage license fee is waived.
A valid marriage cannot be entered into between lineal decedents or ancestors. For example, in Tennessee marriages are not allowed between a parent and child, a grandparent and a child, or between siblings or first cousins. A marriage license will not be issued if it appears that either of applicants is under the influence of drugs or alcohol. A marriage cannot be legally entered into if one of the parties is still married to another person. A marriage will be regarded as dissolved, however, if either party has been absent for five years and is not known to be alive.
Generally, if a marriage is valid where it was conducted, that marriage will also be valid in Tennessee.
If a woman decides to assume the last name of her husband, she may do so, but she is not required to do so. No legal paperwork is necessary, but if she wants to assume his name she should change her driver's license, notify her creditors, and government agencies, such as the Social Security Department and commission (voter registration).
The names of children do not automatically change when a parent marries. A special petition must be filed with the court and the court must grant permission for the change. A name change alone does not change the legal rights of or relationships with the child.
A marriage is a special form of contract that legally binds a man and a woman as husband and wife. There are both rights and responsibilities that are unique to marriage. Under the common law, husband and wife must provide mutual support while married. If there are children of the marriage, either biological or adopted, both parents are the joint guardians of their minor children and are jointly responsible for the care, education, and support of the children. Both parents are jointly responsible to support their children until they are eighteen years of age or graduate from high school with their class, whichever occurs last. When parents have a disabled child, their duty to support and care for the child may extend after the child turns eighteen, possibly even all of the child's life.
Marriage does not change the right of each spouse to buy or sell property as an individual, although title companies may require both spouses to sign when property is sold. Real estate purchased during the marriage and titled to both spouses, is owned with the special legal title of "tenants by the entirety" – they each own the whole. Neither may sell his or her interest without the permission of the other. When one spouse dies, the property automatically becomes the sole property of the surviving spouse. Property held this way is better protected from debts owed by just one spouse.
Marriage also provides other special protections for a surviving spouse. If a spouse dies without a will or without a valid will, the surviving spouse will receive a share of the estate through Tennessee's "intestate" law. If the deceased spouse does not have any children (grandchildren, etc.), the surviving spouse will receive the entire estate. If there are children (grandchildren, etc.) the surviving spouse will either share the estate equally with them, or receive one third of the estate, whichever is greater.
The special obligation of spouses to provide for each other continues after death. The ability of one spouse to disinherit the other is also limited. A surviving spouse can decide whether to take what is given in the will or to take the "elective share." The elective share is a percentage of the estate based on the length of the marriage. For example, if the parties were married for nine years or more, the elective share is 40 percent, but if the parties were married for less than three years, the elective share is only 10 percent. See Tennessee Code Annotated § 31-4-101 for details.
Finally, the deceased spouse cannot avoid supporting the other spouse by giving away all of the estate prior to death. If a deceased spouse attempts to give away all or most of the estate, the gifts may be invalidated.
Other legal advantages of being married, such as filing joint tax returns, are discussed more fully in the chapter on finances.
Annulment is a legal proceeding in which a court formally declares a marriage void if it was legally defective from the beginning. There are various reasons a marriage might be ruled legally defective (i.e., one of the spouses was already married where one or both were under age, etc.). When a marriage is annulled, for most purposes, it is treated as if it never happened.
If you enter into a marriage believing that the marriage is valid and you later learn that the marriage was not valid or legal at the beginning, the marriage is still considered to be in effect until it is ended by divorce or annulment. Because your status (married or not married) can be very important in determining your rights and responsibilities, you should obtain an annulment even if you learn the marriage was defective.
An annulment through a church is not the same as a legal annulment. To legally annul a marriage you must follow the same general process as you must follow for a divorce.
Legal separation provides a way for spouses to remain married but live apart under a court order. A legal separation may be preferable to a divorce if health insurance eligibility is a problem. It is also sometimes used as a "trial divorce." The grounds for a legal separation are the same as the grounds for divorce. In a legal separation, as in a divorce, the court order normally sets forth the obligations of both spouses for spousal support, child custody, property and debts.
After two years of a legal separation, if there has been no reconciliation, a court may grant an absolute divorce upon the request of either party.
Courts will not grant a divorce unless there are legally sufficient reasons to dissolve a marriage. These reasons are called "grounds." The simplest, least emotional and least traumatic ground for divorce is called "Irreconcilable Differences."
An irreconcilable differences divorce is essentially a no fault divorce. To obtain this kind of divorce, both spouses must be in total agreement on all aspects of the dissolution. They must enter, and file with the court, a notarized, written Marital Dissolution Agreement which makes sufficient provisions for the custody and support of any children of the marriage (Permanent Parenting Plan), for an equitable settlement of all property rights (assets and debts), for spousal support (if any), and incorporates all the provisions required by statute.
A divorce on the ground of Irreconcilable Differences must have been filed for at least ninety days if there are minor children of the marriage, or at least sixty days when there are no children, before it can be granted by the court.
When there is no agreement as to all the terms of the marital dissolution, or when only one person is seeking to end the marriage, the divorce must be based on some other ground.
The fault grounds for divorce in Tennessee are found at Tennessee Code Annotated § 36-4-101 and are that either party was:
- Naturally impotent or incapable of procreation at the time of the marriage;
- Already married to someone else;
- Has committed adultery;
- Has deserted the other party without reasonable cause for one year;
- Has been convicted of any crime which renders that person infamous;
- Has been convicted of a felony and sentenced to confinement in the penitentiary;
- Has attempted to kill the spouse;
- Has refused to move to this state with the other party without a reasonable cause (and has been absent from this state for a period of two years);
- The wife was pregnant at the time of the marriage, by another person, and without the knowledge of the husband;
- Habitual drunkenness or narcotic drug problem that developed after the marriage;
- Is guilty of cruel and inhuman treatment (or inappropriate marital conduct) toward the other party rendering cohabitation unsafe;
- Has offered such indignities to the other party to render that person's position intolerable and that has forced that person to withdraw;
- Has abandoned the other and is refusing to provide for the other party while having the ability to so provide;
- Irreconcilable differences;
- The parties have been continuously separated for a period of two or more years, there are no children of the marriage and they have not cohabitated as husband and wife during that two years; or,
- Spouses agree that grounds exist for the divorce.
- A spouse cannot rely upon his or her own conduct to divorce an innocent spouse. The person seeking a divorce must allege the fault of the other person and, in some cases, his or her own fault will prevent a divorce from being granted.
The parties may enter into a Property Settlement Agreement or a Marital Dissolution Agreement to distribute the assets and debts acquired during the marriage. If the parties cannot reach an agreement, the court will make an "equitable" division of the marital property and debts at trial.
"Equitable" does not necessarily mean 50/50. The court's decision will be based on the circumstances of the marriage and the parties and the decision will be what the court believes to be fair based upon the evidence.
Generally property owned and paid for before the marriage or received as a gift or by inheritance is separate property. Usually only the marital property is divided by the court. Usually each party can keep his or her own separate property.
A spouse may request that the other spouse pay them money for support after the divorce. Alimony can either come from an agreement of the parties or can be ordered by the court. The court may (but does not have to) order temporary and/or permanent support. The court will listen to testimony from the spouses and others and will decide on an amount and duration for alimony. The amount must take into consideration the ability of one party to pay and the requesting party's need.
Short term alimony is "preferred" by the law and is often given to allow a spouse to improve his/her employment opportunities (i.e., to let the spouse go back to school or get job training) or to allow time to make the economic transition from married life to single life. Permanent alimony (until death of the payor or remarriage of the recipient) is reserved for special cases (often involving significant disability) or long term marriages (generally more than twenty years).
Divorce ends marital relationships, but not the relationship between the parents and the children, although this relationship may be drastically altered by divorce. One of the most difficult issues for the court and/or the parties is determining who should be Primary Residential Parent of the children and what sort of time sharing and decision making should be established. Once children reach age twelve they are entitled to voice a preference in court as to where they want to live, but the court does not have to follow that preference. In fact, having a child testify as to preference is often very damaging to the child's emotional well being and long-term stability. For the most part, children must rely on the wisdom and compassion of their parents or the judgment of the courts for a determination of what will happen with them. If the decision is left to the court, it will be made on the basis of the best interest of the children and the comparative fitness of the parents, not on the basis of what either of the parents may want or feel is right.
Co-parenting time will be granted for each parent, if they are both capable of co-parenting. In cases of abuse of the other parent and/or the children, supervised co-parenting time can be ordered. One parent will be designated as the Primary Residential Parent (PRP). As long as both parents are capable, they will participate in the responsibility for the education, spiritual and moral growth, and financial and social support of the children. The responsibilities of a Primary Residential Parent will not be awarded to a non-parent unless the court finds that both parents are unfit to have those responsibilities.
When a Complaint for Divorce is filed, a Temporary or Permanent Parenting Plan (either agreed or proposed by one side), must also be filed. Attached is a sample Permanent Parenting Plan form for Tennessee. The plan sets forth the weekly, holiday, and summer co-parenting time proposed by the filing parent, and addresses other issues such as child support, insurance, transportation, and decision-making. It is usually better for parents to determine the fate of their children rather than letting a stranger (the court), decide their children's fate based on the brief contact the judge will have with the family in court. Tennessee law also requires each parent to attend a Parent Education Seminar. The court clerk for the court where the divorce was filed can provide a list of approved Parent Education Seminars.
Many times, the court will order (or parties will agree), to a custody evaluation. This will involve choosing a psychologist to meet with and test each of the parties separately, with each party and the child(ren), with the child(ren) alone, and possibly with other significant individuals in the children's lives. Parents and children will also be given psychological tests. When the evaluation is completed, the psychologist will give an opinion as to what is in the children's best interest. The judge does not have to do what the psychologist recommends, but the opinion of the psychologist often carries great weight. The custody evaluation often costs between Four and Six Thousand Dollars ($4,000.00 - $6,000.00).
As part of the divorce process, the parties will also be required to attend at least one mediation session. The mediator cannot decide the case or force an agreement to anything. The mediator's job is to help both parties work toward an agreement that will satisfy the concerns of each party so that co parenting can be easier and more pleasant.
Although mediation can be very expensive (each party usually pays half of the mediator's fees, and his/her own attorney fees), mediation can still be a much more cost effective than preparing for and attending trial. The Community Mediation Center, provides mediation services based upon a sliding scale, taking into consideration the income of each party. Either party can also ask the court to order a reduced mediation fee. The Knoxville Bar Association 865-522-6522 can provide you with a list of approved Rule 31 mediators, trained specifically in family law.
Once a Permanent Parenting Plan is established (by agreement or court order) it typically cannot be changed unless the circumstances of one or both of the parents change to such a substantial degree that the children are adversely affected. Then if the court believes it would be in the children's best interest, the order can be reviewed and possibly changed. A petition to modify the Permanent Parenting Plan will likely require the parties to go through mediation and parenting classes again.
The law regarding child support in Tennessee changes frequently and sometimes dramatically. At one time, the income of the parent receiving support was not considered in the calculation of child support. The parent paying the support simply paid a fixed percentage of that parent's income.
Now, the law requires that the income of both parents be compared and then assigns to each parent a percentage of financial responsibility in proportion to that parent's income or earning capacity. If a parent has no income or is voluntarily underemployed, income may be imputed to that parent.
The parent who has the children more than 50 percent of the time is the "Primary Residential Parent." The parent having less than 50 percent of the time with the children is known as the "Alternate Residential Parent." The term "custody" is no longer the preferred term, although many courts and attorneys still use it.
There is now a worksheet for calculating child support. It can be accessed online at www.State.tn.us/humanserv/is/incomeshares.htm. You can download the child support calculator as well as the regulations and instructions that help define the terms and provide guidance for special situations. Before you calculate child support, you will need the following information:
- Names, dates of birth, and number of days each child will spend with each parent;
- Each parent's gross monthly income (earned and passive);
- Whether there are other children in the home belonging to either of the parties, and if so, the children's names and dates of birth;
- Whether there are children in someone else's custody, but for whom one of the parties pays support. In that event, the amount of support actually paid must be known, not just the amount in the order. Proof will be required to show actual payments;
- The amount each of the parties pays for health insurance solely for the children;
- Whether there are any recurring uninsured medical expenses for any of the children;
- Work-related childcare expenses and whether those expenses are payroll deducted; and
- The amount of child support previously set in the case (if applicable), and whether it was based upon the old "fixed percentage" guidelines, or the new income share guidelines.
The child support calculator also provides a space to input any amounts requested by either parent that would be a deviation (up or down) from the guideline amount and the reason a deviation is requested. The court will only grant deviations in cases of verifiable need, such as private school expenses (where appropriate), special medical expenses, special education needs, some extracurricular activities, and the like. In addition, either party can ask the court to increase or decrease the child support if a true hardship on the paying parent can be established.
Using the information described above, the child support amount can be automatically calculated. Child Support Services of Tennessee at 865 862 0366 assists parents with determining the amount of child support due, and collecting that child support. That service is free of charge.
If there is a 15 percent or more change in income of either parent which would also result in a 15 percent or more change in the child support due (or other events such as a child reaching an age where child support is no longer required), either parent may petition the court to modify the child support order.
If the paying parent fails or refuses to pay the amount of child support ordered, a Petition for Contempt can be filed to force compliance. You can get help from Child Support Services or you can hire a lawyer. The court can punish those who do not pay their child support by taking their licenses (driving, fishing etc.), intercepting their tax refunds, and even putting them in jail until they pay.
If you receive Aid to Families with Dependent Children (AFDC) you will need to check with your social services worker to determine how much child support you can receive without affecting your AFDC payments.
Domestic abuse means "inflicting or attempting to inflict physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, or malicious damage to the personal property of the abused party." Tennessee Code Annotated § 36-3-601. A victim is any person who falls within one of the following categories:
- Adults or minors who are current or former spouses;
- Adults or minors who live together or who have lived together;
- Adults or minors who are dating or who have dated or who have or had a sexual relationship;
- Adults or minors related by blood or adoption;
- Adults or minors who are related or were formerly related by marriage; or
- Adult or minor children of a person in a relationship that is described above.
A victim may receive an Order of Protection from the local courts. The order prohibits the abuser from coming around the victim and/or abusing the victim. It can be used to remove the abuser from a joint residence and can also include protection for children of the victim.
A victim may seek assistance from a local court clerk for filing the proper paperwork to request the court to grant an Order of Protection. The order may be made effective even before the abuser knows it has been requested. The defendant will be "served" (given the papers and ordered to appear in court) and a hearing will be set.
At the hearing both the victim and the defendant will have an opportunity to explain their side of the story to the court. The court will decide whether the order should continue or be dismissed. If the Order of Protection is continued, it may be in place for up to one year. It is possible to ask for the Order of Protection to be extended longer.
If there is a violation of the Order of Protection, the victim should immediately call 911. The law enforcement officer should/can find and arrest the abuser, even if the abuser has left by the time the officer arrives. If the Order of Protection has been violated, the victim may also file the appropriate contempt paperwork with the court. If the court finds that there has been a violation, the defendant can be jailed, fined, ordered to counseling, ordered to drug and alcohol treatment, ordered to anger management classes, or a combination of these.
A victim may also charge the abuser with a crime if the victim contacts the District Attorney's office. If the District Attorney's Office agrees that a crime has been committed (for example, assault), then they will help the victim take out a criminal warrant. The abuser may be sent to jail, and/or put on probation and may be required to attend Domestic Violence Offender Classes for up to twenty-six weeks. There can be other conditions including counseling and therapy added to the probation requirements. In addition, a condition of probation can be that the defendant is to have no contact with the victim (similar to an Order of Protection). If there is a violation of probation, the defendant may be sentenced to jail.
The Family Justice Center (865-521-6336) in Knoxville, located at 400 Harriet Tubman, is a very helpful place for a victim to receive assistance. The Family Justice Center represents sixty-three agencies and offices that work together to reduce or eliminate family violence. At the center there are domestic violence advocates from the YWCA, law enforcement representatives from the Knox County Sheriff's Department and the Knoxville Police Department, representatives from the District Attorney's office, and representatives from the Legal Aid Society. A victim can receive assistance with everything from housing and employment to how to create a safety plan. The Family Justice Center provides services for children and helps victims obtain Orders of Protection and criminal warrants.