Guide to Tennessee Divorce
This guide explains how divorce works in Tennessee from start to finish. It is written for people who want a practical overview of the process, including the common problems that can make a case more expensive or take longer.
The Minimum Requirements
No matter what your facts are, here are the things you have to do no matter what:
Qualify to file divorce in Tennessee. This is called jurisdiction.
File a Complaint for Divorce. This is the lawsuit that opens the case.
Divide the marital estate. This is deciding who gets what. This can occur by signing an agreement called a Marital Dissolution Agreement or ordered by a judge in a Final Decree of Divorce.
If you have minor children, you must have a Permanent Parenting Plan which includes the custody, visitation and child support terms.
The mandatory waiting period must pass. That is 60 days for cases without children and 90 days for cases with children. The waiting period begins the day the Complaint is filed.
There must be a Final Decree of Divorce signed by a judge. This is the official order declaring you divorced that ends the case.
Flat Fees Versus Billable Hours
Divorce lawyers charge clients by one of two methods: flat fees or billable hours. They each have their own benefits and weaknesses, so here are some important things to consider when deciding between hiring a flat fee lawyer versus a billable hour lawyer.
Billable hours are the more common, traditional practice for divorce lawyers. You pay a deposit called a retainer and then the lawyer bills for their time working on your case at an agreed upon rate. The benefit is the representation is open-ended and comprehensive while the weakness is that the bills just keep coming and the client never knows how much the case will cost in the end.
Flat fees are the newer trend in family law as software automations and AI allow lawyers to do be more efficient with less costs. The lawyer will charge a set rate for a limited menu of services. The benefit is the client knows the total cost or potential cost ahead of time while the weakness is the representation is limited in nature so the lawyer may have to withdraw at a certain point even if the case is not resolved.
Flat fees are often better for simple cases or clients with few assets to divide while complex litigated cases or high net worth clients will likely have to use a billable hour lawyer.
Billable hour retainers are often the same for all clients while flat fee contracts are often more customizable to the exact scope of the representation.
Flat fees are “earned upon receipt,” which means they are non-refundable earned fees that go straight into the lawyer’s general operating account while the retainer for a billable hour case must be held in a trust account until the lawyer has earned the fee by billing for the work.
At TNDIVORCE.COM we are exclusively a flat fee billing law firm, so you can always know what the price is.
Can I File Divorce in Tennessee?
To file divorce in Tennessee you or your spouse must be a Tennessee resident, which means you have lived in Tennessee for at least the past six months. If you have children, then your children must be Tennessee residents as well as there is a law that says orders for custody and visitation must be issued in the home state of the children. Here are some important things to be aware of:
Where you got married means nothing. It is not relevant at all.
If you move out of Tennessee when you separate but before you file, you could lose the right to file divorce in Tennessee.
If you move in to Tennessee from another state when you separate but your spouse and children still live in that other state, then you probably cannot file in Tennessee.
Residency is where your head hits a pillow at night so doing things like having a Tennessee mailing address where you don’t actually live or keeping a Tennessee driver’s license don’t really fix jurisdiction problems.
What is an Uncontested Divorce?
An uncontested divorce is where we do the minimum requirements and nothing else. Both spouses sign all necessary documents voluntarily prior to filing so we can file a completed divorce, wait out the waiting period and close the file. It is always preferable to have an uncontested divorce if at all possible as it is quicker and costs less. You should think of an uncontested divorce as a “pass/fail” type of process where your spouse cooperates with all aspects and signs everything or you can’t have an uncontested divorce. The lawyer cannot force your spouse to sign or even attempt to persuade them to do so as that is considered unethical. If you and your spouse are not talking or you don’t know where they are, then you might not be able to have an uncontested divorce even if it is a simple case.
What is Different in a Contested Divorce?
If your spouse refuses to sign for whatever reason and you have to have a contested divorce, then the divorce follows a different process.
We file a Complaint for Divorce on “grounds,” which means we have to state a reason why you want to get divorced beyond irreconcilable differences.
The Complaint must be served on your spouse. This means someone personally hands them the document in person, which obviously requires we know where they are.
Your spouse has thirty days from the date of being served to file a response called an Answer.
If your spouse hires a lawyer, then the lawyers will try and see if it can be worked out between the parties quickly. If not, then a mediation conference will be set to sit down and negotiate your settlement with a family mediator. Most contested cases are resolved at mediation by signing a Marital Dissolution Agreement and then the case will be closed just like an uncontested divorce.
If your spouse ignores the summons and the time limit passes, then your lawyer will file a motion to ask the court to issue an Order of Default Judgment. This doesn’t mean you get everything you want or that the case is over. It only means you can move forward to get divorced without your spouse’s consent or participation.
When you have a default judgment your lawyer will set a Final Decree hearing in front of the judge where you will tell the judge why you want to get divorced and what you want. You will have to bring a witness with you to testify on your behalf regarding your grounds for divorce. The judge will then rule on your case and issue a Final Decree of Divorce.
What is a Publication Divorce?
In some cases, the parties have been separated for a long time and have moved, changed their phone number, or otherwise made themselves unreachable to their spouse. You can still get divorced using publication notice. Here’s how it works:
You have to swear in your Complaint that you have made a diligent effort to attempt to find your spouse. Some courts may require a separate affidavit detailing what you did to attempt to find your spouse, so you can’t get a divorce by publication because you want to avoid dealing with your spouse. They have to actually be missing.
Instead of being personally served by a process server, your spouse is served by publishing a notice in a newspaper in the county where you last confirmed they lived. The ad must run for four consecutive weeks and then they are deemed to have been provided proper notice.
Thirty days after the ad has completed its run you can get divorced using the default judgment method mentioned above.
You cannot get a judgment against your spouse for anything or have a division of the marital estate because your spouse only received constructive notice instead of actual notice. This means the only thing you can get in a publication divorce is an order saying you are no longer married to your spouse, but you cannot be awarded any money or anything else.
What Must Be in the Marital Dissolution Agreement?
The Marital Dissolution Agreement (MDA) contains all of the terms of what you get from your divorce except for issues with your children. If it’s not in there then you didn’t get it and you must do what you are ordered to do in the agreement. Here’s what you need to know before you sign an agreement to get divorced:
Once you sign it, you are stuck with it. The MDA is a binding contract upon signing, so you can’t really change your mind and amend it after signing unless your spouse agrees to do so. There are some very limited exceptions, but you should not assume that you can change your mind later.
The MDA contains a waiver of service, which means your spouse does not have to be served if they sign. However, that waiver is only good for six months, so there is a time limit to close out the case. If your spouse was personally served and signs the MDA later, then that agreement should not ever expire though judges have different opinions about that topic.
All titled property needs to be specifically listed, which means all houses and cars. Even if the property is in your name alone and you are keeping it, we still need to list it and say that it is yours alone.
Just because something is only in one spouse’s name does not mean that it is not marital property. Each spouse is entitled to an equitable share of the marital estate regardless of fault, and everything acquired during the marriage by either spouse is marital property subject to being divided. The major exceptions are gifts, inheritances, and property owned prior to the marriage so long as said property remains separated during the marriage. A common example is when one spouse acquires a substantial amount of money through a gift or inheritance and then spends it on a down payment for a house. The money was separate property, but it was spent on a house which is now marital property, so the spouse’s gift or inheritance is no longer their separate property but now part of the marital estate as home equity.
Retirement accounts, such as a 401k, are specifically included as marital property by statute so the portion of the retirement account acquired during the marriage can be divided by a Qualified Domestic Relations Order (QDRO) that transfers the money to the other spouse without it being taxed or penalized. If the receiving spouse decides to cash it out, then that spouse will be responsible for the taxes on the distribution.
You may have disputes with your spouse over who takes what from the house, but we rarely include that in the MDA except to say that the parties have divided their personal property to each person’s satisfaction. We can however include a list of personal items and furniture each person will take if necessary.
If anyone wishes to change their name, then there is specific language that needs to be included in the MDA to do that.
What Do We Do About the House?
The marital home is often the largest asset in the marriage, so this is often the source of significant conflict. Here’s how that works most of the time.
Most houses will be sold with the net profit split equally between the parties. The reason is one spouse often cannot afford to keep it by themselves, and the other spouse wants their share of the home equity now. Now that mortgage interest rates are higher than they used to be, it often costs much more to refinance than it did to buy the house originally.
If one spouse has the income and credit to keep the house or it was in their name alone anyway, then they will still likely have to pay the other spouse home equity. That can be done by a cash-out refinance or by transferring funds from another source like a retirement account.
The deed and the mortgage are different things so one spouse may be on the deed but not the mortgage. When that is the case and the spouse with the mortgage is keeping the property, then we can file a quitclaim deed to transfer title to the house to that spouse alone. It is important to understand that a quitclaim deed does not change who is responsible for the mortgage as that is a separate contract that requires a new contract in order to be changed.
When is Alimony Owed?
A common worry in a divorce is whether one spouse will owe money to the other as a form of support called alimony after the divorce. That is actually not as common in Tennessee as it is in other states, but here’s how it works:
The primary pre-condition to being awarded alimony is that the spouse must earn substantially less than the other so as to be financially disadvantaged by the divorce compared to the other spouse. If your income is higher or substantially similar to your spouse, then you definitely cannot get alimony.
If you have a hearing on the issue, then you will have to file an affidavit of income and expenses detailing what you earn and what you spend each month on average. In order to be awarded alimony you have to show you cannot pay your bills while your spouse’s affidavit shows they have the ability to assist you with your bills.
Alimony can be a lump sum called alimony in solido that is often used to equalize the marital estate, or it can be a monthly payment for a specific period of time with an expiration date. Transitional alimony is usually short term to transition into being single while rehabilitative alimony is intended to allow the recipient time to get a job, finish their degree, and so on.
The rarest form of alimony is called alimony in futuro, which is alimony for an indefinite period until the recipient dies or remarries, the court modifies it, or the payor dies. This is limited to recipients who are deemed to be incapable of caring for themselves, such as a spouse that is already retired or disabled with limited income.
Rehabilitative alimony and alimony in futuro are modifiable for changes of circumstances but transitional alimony is often non-modifiable unless the MDA specifically adds modification terms. Alimony in solido is never modified as it is just one payment or a set amount paid in installments. Remarriage of the recipient only automatically terminates alimony in futuro and rehabilitative alimony.
What Must Be in the Permanent Parenting Plan?
Many clients say that there is not a dispute regarding the children so why do they have to have a parenting plan order? The answer is that it is required by law no matter what and you may not always agree on everything the way you do right now. Here’s what has to be in the parenting plan:
There must be a primary residential parent designation. All this means is one parent’s house is the child’s residence for things like the school district. It doesn’t give that parent any greater power over the other and it can be labeled as joint so long as the parenting schedule is perfectly equal.
Each parent’s total number of parenting days must be designated. All 365 days of the year must be allocated to either parent. If the plan is perfectly equal then that designation is 182.5 days for each parent.
There must be a day-to-day schedule detailing where the child resides and when the child visits the other parent during the school year. There will also be a holiday schedule allocating parenting time for all holidays and school breaks.
THERE MUST BE AN ORDER OF CHILD SUPPORT. Many parents want to make up their own numbers or waive child support, but that is prohibited by Tennessee law. No matter what the parents want to do, there must be a child support worksheet included in the parenting plan in order for the divorce to be granted. The child support obligation is set by calculation run on an Excel spreadsheet created by the state, so you don’t get to pick the numbers.
There must be a designation of decision-making authority, but that is usually joint for nearly all cases. There are also a few other notices or designations like who covers health insurance, how are uncovered medical bills paid, who claims the children on taxes, and so on.
Both parents must take a parenting class before your Final Decree is issued, so your lawyer will provide you a list of the approved classes in your county.
How to Prevent Parenting Plan Problems
The most heated disputes both during and after the divorce are caused by parenting problems. Here are some tips to get ahead of these common problems:
Don’t ask for a plan that is radically different from how you lived your life prior to getting divorced. The court will do everything possible to keep the children’s lives as similar as possible to what they experienced before the divorce, so don’t ask to turn their lives upside down. For example, if the mother was doing nearly all the daily parenting prior to the divorce, then she is very likely to continue doing so after the divorce unless there is a serious problem with mom.
Less is more. Do not try to figure out all the potential problems, disputes and decisions ahead of time. You do not want a thirty-page parenting plan filled with legalese that requires an email to your lawyer once a month. Clear and simple rules are always preferred.
Don’t include tiebreaker language for decision-making. This may seem counterintuitive, but there are already dispute resolution terms in the plan and you don’t need more than that. If you have joint decision-making but mom is the tiebreaker pending mediation, then mom effectively gets to make all the decisions in reality. This lopsided authority causes more problems than it solves.
Don’t include a paramour clause. You may want to limit your children’s exposure to your ex’s new love interest by adding terms about how and when they may introduce them to your children or say they can’t spend the night or something like that. Courts have taken a dim view of these terms on appeal as they unduly limit a parent’s individual freedoms to live how they like and parent their children how they like, so you probably shouldn’t be causing controversies for something that might not be enforced later. Also, you might be the one with the new love interest.
Don’t include college expenses. Once your children turn 18, they are legal adults and neither parent is responsible for their bills (child support continues to the end of high school). Obviously, you will continue to provide for your children for some time after that, but you shouldn’t legally bind yourself to expenses that would not otherwise be your responsibility.
Don’t trade tax credits. Tax refund season is a time of heated disputes regarding money if one parent steals the tax credits from the other by filing first and claiming the children without telling the other spouse. The parenting plan says who can claim the children, but those terms should match the IRS rules, which are that a parent can only claim children on their taxes if they live with them more than half the year. That means only the primary parent can claim children on taxes. If you have equal parenting time, then the parent receiving child support should claim them or parents can agree to take turns.
Don’t count on modifying the plan later. You may think you can settle for something you don’t actually like now and just change it later, but keep in mind the plan is designed to be permanent. It is after all called a Permanent Parenting Plan. You can modify a parenting plan but it requires independent grounds to do so after the case is closed, which means there has to be a change of the children’s circumstances (not your circumstances) that requires the court intervene to change the plan to protect the children’s best interests.
What Could Cause My Case to Be Expensive?
Many clients are concerned that their case could spiral out of control and costs thousands of dollars more than they think. That can occur when the case is contested and many extra processes and events occur, so here are the most common extra events that increase the costs of a divorce:
Discovery. This is a formal process of answering written questions under oath and providing financial documents. This can often be rather time-consuming so lawyers charge a lot for discovery.
Temporary Support Hearings. This is a contested courtroom event often near the beginning of the case to order one spouse to begin paying child support or alimony up front or to continue covering certain marital bills like a mortgage payment. The easiest way to avoid this is to ask your lawyer what obligations you need to maintain until the case is resolved and just keep paying your bills.
Order of Protection. This is a provocative action to get what is commonly called a restraining order. This is a serious matter that has strict rules about when they can be issued and harsh criminal consequences for violating them. You should always ask your lawyer first before you attempt to go file one yourself.
Injunctions or Special Petitions. This is where your lawyer approaches the court to ask for a special order for a specific problem such as to ask for a temporary parenting plan, request a guardian ad litem be appointed for your children, ask your spouse to be removed from the home, or anything else that can’t wait.
Trial. This is required if your case cannot settle no matter what the lawyers do to attempt to work it out. Few cases ever go to trial, but when they do, it is a long expensive process that can delay your divorce for months or even years as courts have busy dockets and getting a trial date can be challenging depending the courtroom assigned to your case.
What Could Delay My Case Being Closed?
Many people have heard horror stories of divorces lasting for years and every lawyer can share stories about cursed cases that never seem to get resolved and get delayed for a wide variety of reasons. Here is what often causes those delays:
Your spouse is dragging their feet on purpose either because they need more time to prepare to be single or simply out of spite. Your lawyer cannot force them to sign papers and forcing the case closed after an Answer has been filed can be quite challenging if the other side in uncooperative.
The other lawyer is overwhelmed with work and simply doesn’t have time to get back to us. Your lawyer will know which other lawyers often have this problem, but it is common for some lawyers to be very slow at responding to correspondence. There are only so many hours in the day and if the other lawyer has more pressing cases than your spouse’s case then it may get pushed to the back burner. There are strategies to deal with that, but they aren’t as fast or as certain to resolve things as you would like.
The court calendar is clogged up. Some courtrooms are better managed than others and the judge assigned to your case makes a big difference in terms of how efficient your lawyer can be at closing your case. In some courts getting on their docket for a hearing or trial can be a long wait.
You are unresponsive. Your lawyer needs you to respond to emails and requests for information in a timely fashion, so if you don’t do that, your lawyer can’t move your case forward.
Life happens. There have been countless examples of situations where no one did anything wrong but the case got side-tracked for illness, deaths, bad weather, or some other random event such as the Covid epidemic. You can’t always predict what will happen so you always need to be patient and understanding through what may be one of the most difficult seasons of your life.
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