An Overview of Separation Laws in Tennessee

In the state of Tennessee, the law does not specifically require separated couples to take any particular legal action to be recognized as separated. It is generally understood that a couple is separated when the spouses begin living apart and one spouse contemplates, intends, or has filed for a divorce. Separation can be established by an agreement between the parties or by the conduct of the parties toward each other and could include physical facts, such as whether or not the parties share a residence together, or whether they share sexual intimacy. Depending on the facts of each situation, there are certain actions that can be taken in response to the separation. Divorcing couples will typically have a Physical Separation Agreement (PSA) in place. This is a legally binding document that will be referred to in the case of a divorce proceeding, and defaults to the Dissolution of Marriage (DOM) documents if the parties can’t come to terms during their divorce. This disambiguates the entire process and makes it easier for all departments involved. As part of the PSA, you will need to decide if you want to file for a Legal Separation or not. "When parties are living apart and intend to permanently live separate and apart, either spouse may apply to the court for a decree of legal separation, and the court shall decree a legal separation of the parties. A legal separation shall not bar either party from subsequently filing for divorce, and when one of the parties has applied for a divorce the court may set aside the decree of legal separation and decree a divorce." – TCA § 36-4-106 . This is important because "once the decree of legal separation is entered, the parties remain legally married and do not have the option of remarrying unless one of the parties obtains a divorce." – wbrcool.com This means that legally, signing an order of separation is very close to signing a divorce decree since most of the terms will be the same, but it will act in the same way as a temporary relief order. With a Legal Separation, joint filing is possible and both parties will have to hire an attorney to draft the separation agreements. The grounds for legal separation are similar to those grounds for divorce. Tennessee recognizes both fault and no-fault grounds for legal separation. Like divorce, the standard for happy marriage statute applies. For a legal separation, one spouse must prove that "the husband and wife have lived separate and apart from each other without cohabitation for a period of two (2) years, or for such other period of time as the husband and wife may mutually agree upon." – TCA § 36-4-102. (Tennessee Code Annotated). There are two major differences between divorce and legal separation. The first major difference is that divorce terminates marriage but legal separation does not. With legal separation, the husband and wife are still technically married, but living separately. The second major difference is that while the fault-based grounds that allow for legal separation are the same as divorce grounds, there is one difference for legal separation. This is that a spouse who has been found guilty of adultery is not eligible for legal separation.

Grounds for Separation

Legal grounds for separation in Tennessee are stated as: "Since a separation under a decree of judicial separation is a different and lesser thing than a divorce, the statutory ground for a divorce need not exist." Here, the trial court concluded that the parties did not meet the legal grounds for divorce, and the proof therefore did not establish that a Divorce Manual in Tennessee was needed. Divorce in Nashville, Tennessee can be based on the same grounds as separation under Tennessee Code Annotated § 36-4-101: Tennessee courts have not limited themselves to the statutory grounds for divorce in determining grounds for separate, such as: 1) reprehensible conduct in so-called "husband snatching" (Tennessean Mgt. Co. v. McDonald, 656 S.W.2d 38, 41 (Tenn.Cl. App.1983); (2) adultery and long term adultery (McCann v. Russell, 40 Tenn. 169 (1868); 3) abandonment of wife by husband with intent to marry another (Simpson v. McConnell, 642 S.W.2d 757 (Tenn.Ct.App.1982); at p. 760); or (4) cruelty, highhandedness, and unjustifiable domination. Other examples of grounds for divorce or legal separation in Tennessee: Adultery – Adultery in a legal sense has been described as voluntary sexual intercourse of a married person with one not the legal spouse of the offender. See Bridges v. Bridges, 783 S.W.2d 565, 566 (Tenn.Ct.App.1989) Now, adultery does not need to be proven by direct evidence. It may be defined by circumstantial evidence, which has been described as: Circumstantial evidence alone is sufficient to prove adultery if the circumstantial evidence is strong and its inferences are clear and cogent. to prove adultery by circumstantial evidence requires more than … a mere balancing of probabilities. The wife is not required to negate with particularity the husband’s conjectures as to her conduct. It is sufficient if a reasonable person, drawing all inferences from the evidence most favoring the wife’s position, would conclude that the facts reasonably negate the husband’s subliminal inferences. A court may not conclude that the wife has committed adultery if there is no permissible inference that she has been unfaithful. The appellate courts have found sufficient circumstantial evidence to support a finding of adultery only if the circumstantial evidence is such that the only reasonable inference to be drawn is that the wife has committed adultery.

Filing for Legal Separation

In Tennessee, the process of filing for legal separation requires several steps. As a preliminary matter, it is important to understand that the court cannot grant a legal separation if the parties have lived continuously apart for two years or more. A legal separation and eventual divorce are legally distinct concepts, allowing spouses to remain married while resolving issues such as division of assets and debts and spousal support obligations. Legal separation is typically considered when the parties do not want to obtain a divorce but wish to live apart and divide their property, assets, liabilities, and debts. A legal separation in Tennessee may be used as a strategy to obtain a "cooling off" period, and the separation agreement may only be written in aid of a divorce proceeding. It is essential to note that, unless both parties agree, a court does not have authority to address child support issues that does not have power over property division issues related to the legal separation.
To begin the process of filing for legal separation in Tennessee, you must file a complaint for legal separation in the circuit court. The complaint must be in writing and include certain information required by law, including:
Next, you will have to pay the applicable filing fee, which in many counties exceeds $200. Upon reasonable belief that the legal separation is in the best interest of you and your spouse, the judge will grant a summons for the legal separation. The summons will notify your spouse that you are filing for legal separation and they will be given a court date. After both parties attend the court hearing, the judge will determine whether to grant the legal separation.
After the judge grants the legal separation, you will have to draft separate relocation orders. Once the orders are drafted, both parties must sign and file them with the circuit court clerk. When one or both parties file for separation, the ruling will address issues regarding the following:

Separation and Child Custody Issues

Even after filing for a legal separation, parents who are separating in Tennessee may find that it is best to file a separate petition regarding the legal custody of their children upon their separation. Even though parents may agree about where their children will live and what their schedule will be, the court must approve such plans before they become final.
For most parents, the custody disputes that end up before a court are limited to the following three categories.
Sole custody means that one parent is granted the full responsibility for caring for and raising the children. There is no obligation on the part of the other parent to have anything to do with the child or children anymore. Joint physical custody allows a child to have two homes. While primary custody may be assigned to one parent, the child has access to both parents’ homes and both parents. An award of sole custody is the rare exception to the rule. In the event that a father is not truthful about his behavior as applied to a negative home environment, this ruling may be appropriate. Sole custody also may be appropriate if the parents are never married to one another, so one parent would not have legitimate standing in the eyes of the law . Although the law does recognize a very limited number of cases in which sole custody may be appropriate depending on the overall facts of your case, the standard custody ruling will usually be joint custody. Joint custody arrangements allow for the child or children to live part of the time with each of the parents. For example, the child will spend certain days with one parent, such as weekends, and then go to live and spend time with the other parent on school days. When the court is called to make a custody determination, it must first determine the level of conflict that exists between the parents. The presence or absence of severe conflict will affect the type of custody order that is made by the court. The amount of time a child spends with both parents is not automatically equalized. There are many factors that are considered, including the following: To be eligible for a sole custody order, a parent must file a petition with the court. This means that a father seeking to obtain sole custody must be prepared to file this petition. This is not an automatic inclusion under the law.

Separation-Related Financial Matters

While some state laws treat a legal separation as an intermediate step to divorce, it is important to understand how a legal separation in Tennessee can impact financial matters such as spousal support, property division, and debts. Legal separation can affect the division of property. In Tennessee, the court equitably divides marital property without regard to the marital fault pursuant to Tenn. Code Ann. § 36-4-121(a). Marital property includes both real and personal property acquired by either or both spouses during the marriage, except for property acquired by gift, bequest, descent, or devise; or property acquired in exchange for property acquired prior to the marriage; property excluded from marital property by a valid antenuptial or postnuptial contract; or property acquired after the date of separation. Here, marital property includes the house that we purchased twelve years ago. Some debts are not dischargeable in bankruptcy – like spousal support and most liens against nonexempt property. Neither party is responsible for debts incurred after the date of separation. Here, I incurred the credit card debt to ABC Furniture after we separated because I thought I needed a new room furniture set. Domestic support obligations (marital debts, child support, alimony and attorney fees incurred in the handling of domestic litigation) may be discharged if the debtor filed for bankruptcy after 180 days from filing the petition for divorce and more than 360 days from the date of the entry of the final decree. If the debtor filed for bankruptcy within 180 days after the entry of the decree, a discharge will not be given for domestic support obligations. Here, my spouse incurred no debts during the separation.

From Separation to Divorce

For some couples, a legal separation is a temporary state of affairs. They still have some hope of reconciliation and return to their marriage. In Reality, however, legal separation usually marks the beginning of a process that ultimately leads to divorce. Legal separation has no specific duration requirements under Tennessee law, so how you decide to proceed with your legal separation is up to you and your spouse. While some couples are able to separate for months or even years before one or the other files for divorce, other couples convert their legal separation to divorce once they reach an agreement on how to divide all property and debt and handle related matters such as child custody and child support. The process of obtaining a divorce after an existing legal separation is the same as obtaining a divorce from a marriage. You simply file a complaint for divorce in the jurisdiction where you and your spouse last lived together. In the complaint , you must state the reason(s) that you are filing for divorce. Tennessee recognizes 15 grounds for divorce: cruelty, adultery, desertion, bigamy, impersonation, willful and malicious desertion, conviction of a felony, habitual drunkenness, conviction of rape, abandonment, criminal conduct, other grounds traditionally associated with the now-repealed Covenant Marriage Act and irreconcilable differences. However, the first four grounds listed above do not require a formal legal separation as a precursor to filing for divorce. At this point, you must go through the same steps as if you were not legally separated. You must live apart from your spouse for at least two out of the first four months that the divorce is filed in order to complete the 90-day waiting period required by law. During that time, you must try mediation and attempt to reach an agreement with your spouse. If you are unable to reach an agreement and final mediation has failed, you may need to go forward with a mediated temporary hearing and a non-jury final hearing to finalize the divorce.