More Questions Answered about Divorce

Divorce:

Divorce has become a significant part of life in this country.   A divorce may be necessary to clear away a problem that blocks you from leading a better life. Divorce is never pleasant. Some divorces are more unpleasant than others.

This website offers a summary of the law, as I understand it at the time of writing and posting (March 2008). The law is always subject to amendment by the legislature, reinterpretation by the courts, different application by different judges, and factual variation from case to case. If you need a lawyer outside my area, ask me or call before acting on what you have read, talk to a lawyer in your area - that is why they are there.

 

Tennessee has two types of divorces: uncontested, which are usually based on irreconcilable differences, and contested, which require proof of grounds for divorce.

 

An irreconcilable differences divorce requires that the parties agree to be divorced. You must have a written Marital Dissolution Agreement that makes adequate and sufficient provisions in writing for the custody and support of the minor children of the marriage and makes a fair and equitable division of your property. There are also additional technical requirements, but the Marital Dissolution Agreement is the essence of an irreconcilable differences divorce. As for assessing fault for the marriage breakdown, you only need to say that differences have arisen that will prevent you from living together as husband and wife.

 

A traditional contested divorce is a case in which the parties cannot agree and must go to trial. The most common grounds for a contested divorce are:

 

  1. Adultery
  2. Habitual drunkenness or abuse of narcotic drugs that was contracted since the marriage
  3. Living separately and apart for two (2) years with no minor children
  4. Inappropriate martial conduct (which may also be referred to as "cruel and inhuman treatment")
  5. Willful or malicious desertion for one (1) full year without a reasonable cause
  6. Conviction of a felony and sentencing to the penitentiary
  7. Pregnancy of the wife by another before the marriage without the husband’s knowledge
  8. Willful refusal to move to Tennessee with your spouse and living apart for two (2) years
  9. Malicious attempt upon the life of the other
  10. Lack of reconciliation for two (2) years after the entry of a decree of separate maintenance
  11. Impotency and sterility
  12. Bigamy
  13. Indignities offered by one spouse to the other
  14. Abandonment or refusal or neglecting to provide for spouse although able to do so.

 

If you are filing for divorce, you should have your grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for divorce for your spouse to file. Pending the final divorce, you should not do anything to give your spouse any grounds for divorce because it can probably be used against you.

 
 

Alimony:

Alimony is supposed to be rehabilitative, hence the term rehabilitative alimony. If temporary alimony cannot bring about rehabilitation, then the court can, in proper circumstances, order alimony on a long-term or indefinite basis. Transitional alimony is awarded when the court finds rehabilitation is not necessary, but a spouse still needs some assistance. Indefinite alimony is called alimony in futuro. Alimony in futuro is granted less often these days. Alimony in futuro can be raised or lowered over time if there is a change of circumstances. If you do not get alimony at the time of the divorce, you cannot get alimony later on. Alimony in solido is a definite amount of money or property awarded instead of periodic payments, and it cannot be modified. Technically, husbands can get alimony from wives, but it seldom happens. In Tennessee, a statute applies to alimony. 

Alimony is based upon the needs and resources of the parties. The legislature set out the statutory criteria for the court to consider and they include the following:

Relative earning capacity, needs and obligations, this includes income from pension, profit sharing and all sources;

Education and ability of the parties, as well as opportunities for additional education;

                    Length of the marriage;

Age, physical, and mental condition of the two parties;

Whether or not one of the parties should stay at home with the child(ren) of the parties instead of working;

                    Separate property a person has;

                    Marital property a person gets;

Standard of living the parties enjoyed during the marriage;

Tangible and intangible contributions of a homemaker and the tangible and intangible contributions of one party to the education, training, or increased earning power or the other party;

Fault of one of the parties (if the court wants to);

                    Tax consequences;

Other factors that the court considers appropriate.

Living with someone after the divorce, regardless of whether you have sex or not, may cause alimony infuturo or rehabilitative alimony to be lowered or stopped. Death of one of the persons paying or receiving alimony or marriage of the person receiving alimony will terminate alimony infuturo and rehabilitative alimony unless the divorce settlement agreement provides otherwise. 

As stated, this is a summary of the law in Tennessee.   Divorce cases are very factually driven.   Suggestions made by your friends and/or family members, while well-intended,  may not apply to your facts and may actually cause harm to your legal status.   If you are contemplating filing for divorce, I encourage you to seek the advice of legal counsel befor taking any action.  It could save you in the long run.   


 

This information is not intended to replace the personal advice of an attorney.   If you have questions regarding a specific circumstance, please contact one of our knowledgeable attorneys to schedule your consultation.


 




Information courtesy of Larry Rice, Attorney at Law and Author of "The Complete Guide to Divorce Practice"
Memphis, Tennessee