Tennessee Legal Separation Versus Divorce
Legal separation is more than simply an informal arrangement between you and your spouse. By filing for legal separation in Tennessee, the issue of spousal maintenance (alimony) may be determined, the division of property and debts may be determined, child support may be determined, and all other matters involved in the breakdown of a marriage may be decided. If that’s not enough, the filing for legal separation constitutes grounds for divorce in Tennessee. Divorce is obviously a formal dissolution of the marriage relationship involved. There is nothing casual or temporary about it. But, sometimes legal separation is the best choice for either spouse. In most ways legal separation is like divorce but it moves a spouse from the status of "husband" or "wife" to the status of "legal separated spouse". It does not, however, end the marriage relationship. Spouses may choose legal separation if: On legal separation, in addition to the matters stated above , a Temporary Parenting Plan provides for who will pay child support, and custody issues. The Temporary Parenting Plan is in effect during the legal separation and, unless changed by agreement or order of court, continues after divorce. Temporary injunctions against transferring property, removing children from Tennessee, and other issues are part of legal separation. On Divorce, the Matrimonial Dissolution Reform Act of 1977 requires the court to consider more than simply equitable division of property. Sometimes referred to as the Murphy Law (or rules), the legislation requires the Court to review the circumstances and then grant an equitable division of the property. As with legal separation, trial may be required if the parties cannot agree on terms. Also, marital misconduct is irrelevant to the issue of divorce, so when dealing with property, the court does not consider whether one party had an affair, or engaged in other miscues. When property matters are involved it is wise to consult an attorney.
How to Obtain Legal Separation in Tennessee
Legal separation in Tennessee is proven to be a common option for couples who are not ready or willing to pursue a divorce, however, the legal requirements for a legal separation are the same as the requirements for a divorce. Essentially, one party must file a complaint that requests legal separation, and it must meet all of the necessary requirements to file a divorce in Tennessee.
In order to file for a legal separation in Tennessee, at least one spouse must meet the residency requirements of Tennessee. At least one spouse must have resided in Tennessee for six months prior to the filing and be a resident of the state on the dates of court proceedings. If the couple does not have minor children, either spouse can file for a legal separation in the state of Tennessee. Specifically, the Tennessee Code Annotated 36-4-101 states that "If the parties have no children, either spouse may file for legal separation in Tennessee."
If children are present, there are other requirements regarding the right to legal separation in Tennessee. At least one spouse must have been a resident of Tennessee for at least six months prior to filing, and there are further rules even if the children are not yet born. This recent Spallina ruling explains the general rule: "However, a child born while at least one of the parties has been a Tennessee resident for six (6) months is considered a Tennessee resident." The requirements for pursuing legal separation in Tennessee are exactly the same as legal separation, not only regarding residency, but also regarding the legal grounds for legal separation in Tennessee. The general rule here again is found in Tennessee Code Annotated 36-4-101: "The grounds for legal separation are the same as those for divorce." The grounds for divorce (and thus textually — as a confusing area of Tennessee law — the grounds for legal separation) in Tennessee are listed in Tennessee Code Annotated 36-4-101 as: "(1) Imprisonment of such person in the penitentiary; or (2) Willful and malicious desertion by such person of the other for the space of one (1) year; or (3) Any grounds which would justify granting an absolute divorce from the bonds of matrimony; or (4) Living apart from each other as spouses for two (2) consecutive years, provided the parties have made provision for the economic needs and support of the other or of their respective children during the separation; or (5) Inappropriate marital conduct, including, but not limited to, adultery, adultery coupled with circumstances calculated to lead to a further separation and reconciliation efforts by the other spouse that had or have a chance of succeeding after cohabitation have resumed; or id (6) Irreconcilable differences." Again, if you haven’t caught my sarcasm here — the legal grounds for divorce and legal separation are identical in Tennessee.
Filing for Legal Separation: The Process
In Tennessee, securing a legal separation generally involves the same procedures as those used for filing for divorce. Here are the steps to take:
1. "Grounds" for Separation: As in a divorce, you need to establish grounds, or legal rationale for the separation. These grounds include:
Insanity of one spouse
Bigamy
Impotence
Abandonment
Conviction of a felony
Infidelity
Refusal of a spouse to relocate for over two years
Inadequate marital sex
- Filing Divorce Complaint: You must file a complaint form with a court with jurisdiction over your county. This court has to be a Chancery Court or Circuit Court. The filing fee ranges around $300 depending on the county.
- Serving the Summons: The defendant must be "served" – or given a copy of the filed legal documents. You can use a sheriff or a private process server, or you can have an official at the court "sign for" the defendant’s copy. Once served, the other spouse has a legal duty to respond by ordering a court hearing.
- The Court Hearing: When it is time for the court to hold the hearing, a referee from the court will make a prefatory decision, and the judge makes a final ruling. This court hearing where a legal separation is ordered can take place in as little as 30 days, and as many as 90 days after the complaint is originally filed.
Duties and Rights during a Legal Separation
Upon legal separation, Tennessee law entitles a spouse to have a claim for equitable division of property and debts. This is the same standard the Court would use in a divorce action. This is known as an "Equitable Distribution." If a property is held by a party in joint name with another, it is presumed that the property is owned by both parties (T.C.A. § 31-2-101). A spouse may also seek an "Interim Distribution." This means that a spouse asks the Court to make a one-time equitable distribution of property during the period of legal separation. This type of distribution is only available for property not subject to marital property division (e.g. property acquired after a certain date; if parties purchased an asset during the marriage, but was paid for with solely separate funds, that property cannot be divided at a future date).
Marital debts are also divisible by the court; however , if the debt was stipulated as being in only one party’s name, then the other spouse is not obligated as the debts were incurred only on behalf of one party.
Tennessee is a child support guidelines state (T.C.A. § 36-5-101) that uses years of data to calculate the amount of a child support obligation based on the gross income of both parties and number of children. Generally, Child Support Guidelines will apply to a separation agreement for children of legitimate birth. For children born out of wedlock, the obligor may be ordered to pay expenses of pregnancy and confinement, but these will be determined by an agreed order/taking proof. These obligor expenses include payment of health insurance premiums on behalf of the child, uninsured medical/dental expenses (including dental premiums), work-related day care costs and tuition.
Reconciliation and Conversion to Divorce
If a couple reconciles after executing a Tennessee Separation Agreement, they may simply elect to dismiss the case, rescind the pre-marital agreement, and live happily ever after. If the couple does reconcile but fails to enter into a post-marital agreement, things can get a bit complicated if they decide to divorce later. Unless a spouse can establish the other spouse abandoned the reconciliation with intent not to resume cohabitation, there is no one-year period following the entry of the Decree of Legal Separation. In such an instance, the separation is a temporary stoppage of marital discord and may be lifted on the entry of an order of court or by dismissal of the action. Moore v. Moore, 945 S.W.2d 200, 204 (Tenn. 1997). If matters deteriorate to the point that the spouses decide to convert the legal separation into a divorce, they may do so if they have been living separate and apart for two (2) years with no minor children and no pending criminal charges for domestic abuse under Tennessee Code Annotated § 36-3-601(a) and nothing in the Complaint for Divorce or other pleadings alleges domestic abuse. The spouses have several options in converting a legal separation into a divorce but more often than not, the two parties simply agree to convert the legal separation to a divorce by way of Consent and decree approving Final Order of Dissolution of Marriage which includes a Final Parenting Plan, Permanent Parenting Plan Order, Schedule A for Division of Marital Property and Indebtedness, Decree of Divorce and all other required pleadings. A form Conversion Order further sets out the details required by law. The spouse wishing to initiate the conversion action then files the Conversion Complaint in the pending legal separation action. If the spouse wishing to initiate the Conversion action lives in Nashville, Davidson County, they must file the Complaint in the Divorce Division of Davidson County Chancery Court the Refugee U.S. District Courts in Nashville, Davidson County.
Legal Separation FAQs
Can a legal separation be modified?
Yes. The terms of a legal separation in Tennessee can be modified by either parties through filing a post-judgment motion with the court. After a full hearing, the division of marital property and debts, child custody, visitation, child support and spousal support can all be modified if the facts justify modification, or if the agreement of parties is submitted and approved by the court.
How does a legal separation impact my financial status?
If you and your spouse have a legal separation in place, the terms of the separation agreement apply, and they can impose obligations upon you regarding alimony, child support, or your rights to property . The court cannot divide property or obligations other than those expressly set out in the separation agreement, so it is important for all parties to consider carefully the implications of the separation agreement before having it approved by the court.
What happens after the separation is in place? Can I get a divorce?
It may be possible to obtain a divorce in the future. A legal separation does not last forever, but it is an important step in the process toward an eventual divorce. In Tennessee, there is a six month waiting period after the entry of a final separation agreement, during which time a divorce cannot be filed until the parties have reconciled, or at least demonstrated a change in their interests in the marital property.