What Constitutes Legal Separation in Tennessee
Legal Separation in Tennessee is a legal option that allows married couples to live apart, while still being legally married. Often this is the step that leads people down the road towards a divorce, but not always. It is very similar to filing for divorce in Tennessee, without the finality. However, if the parties have dependent children, both must consent to a legal separation. Even if the parties do not have children, legal separation is not as common as it is in other states. Instead, most people in Tennessee file for divorce.
Under T.C.A. 36-4-102, a legal separation will be granted if there are irreconcilable differences. This means that it is in the best interest of both spouses to live apart. Spouses must file a petition for legal separation, and there cannot be a chance for reconciliation or a chance for the marriage to succeed after a period of separation . Generally, the periods of separation must be six months, but they can be longer.
For example, T.C.A. 36-4-103 states that parties must have lived apart for two years before one of the spouses can file for divorce, unless one party commits adultery, domestic violence or felony criminal convictions. If spouses do not have children, then they must be separated for at least one year before filing a petition for divorce, with some exceptions. However, the entire separation is not needed when a legal separation is pursued instead.
A legal separation may be beneficial for couples who have not yet agreed to dissolve the union or for some religious reasons. It is possible, and sometimes recommended, to legally separate first, and file for divorce second.
Who Can Seek Legal Separation
Before filing for a legal separation in Tennessee, you must meet certain eligibility criteria. For instance, only married individuals are eligible. The legal separation process solely applies to legally married couples, so if you and your partner never tied the knot, you cannot file for separation. If you’ve entered into a civil union or domestic partnership, you are also not eligible. Certain states that do not allow same-sex marriages offer civil unions, which carry the same legal status as marriage, but usually only at the state level and not federally.
In addition to being married, Tennessee law requires that at least one party has been a bona fide resident of the state for six months prior to filing. If there are children from the marriage, then the legal separation must be filed in the proper state where the longest period of residency took place in the 6 months preceding separation. Notably, there is no waiting period in Tennessee if you simply wish to separate and not divorce.
Necessary Documentation and Filing Procedure
For a legal separation in Tennessee, there are several documents that are typically required. These include: a petition for legal separation, a separation agreement, financial disclosures or affidavits of income and expenses, and a proposed decree of legal separation. A displacement program is often useful in this process, as is a child support worksheet, if applicable. Typically a spouse would file these documents with the court.
To file for legal separation in Tennessee, you must first determine the appropriate court for your case. In most cases, this will be the Chancery Court or Circuit Court in the county where you or your spouse resides. Next, you will need to complete the necessary forms, typically including a petition for legal separation, a separation agreement, and any required attachments. Once your forms are complete, you will file them with the court and pay the required filing fee. The clerk of the court will then process your filing and send a copy of it to your spouse, usually by mail or through your attorney.
After your application has been filed, you will likely be scheduled for a hearing before a judge. During this hearing, the judge will review your case and decide whether to grant your request for legal separation. If the judge grants the request, they will issue a decree of legal separation, which will lay out the terms of the separation, including issues such as child custody, child support, and property division.
It’s important to note that the process for filing for legal separation can vary from state to state and may be different depending on the specific circumstances of your case. For more information about the specific requirements and filing process for legal separation in Tennessee, it may be helpful to consult with an experienced family law attorney.
Legal Separation Compared to Divorce: What You Should Know
Loading up with information ranging from the nature of the legal separation agreement to custody arrangements and property rights, many people want to have as much information as possible when considering filing for legal separation or divorce. In Tennessee, the basis for filing for legal separation is very similar to that for divorce. For legal separation, the grounds necessary are irreconcilable differences, inappropriate marital conduct, and one year of separation (not needed if grounds exist). The same applies to the grounds for a divorce.
Tennessee has the same options of physical custody, legal custody, primary residential parent, visitation, and shared parenting for separating couples as are available for divorcing couples. Depending on the circumstances, depending on what you prefer, and depending on what works for you and your spouse, a legal separation can be achieved by an agreed order or by trial.
Your attorney can draft an agreed order for you that covers all areas of the separation that you both agree upon, but any contested issues would have to be represented in a trial. Your attorney can also advise you how to draft a valid written legal separation agreement that would be enforceable as a contract.
Although the division of assets and debts between the parties can be complex and involves various variables, the division is similar to the division for parties getting a divorce.
Child Custody, Parent Time, and Child Support Considerations
When parents are legally separated, the matter of child custody and support becomes a top priority. A legal separation does not bring about an immediate change to the family unit. The children will continue to live with their custodial parent. Then the parents make decisions about how time will be shared going forward. While you may have an amicable relationship with your spouse, an attorney can help you understand your legal rights and obligations to your children. According to Tennessee divorce laws , a parent does not have a right to have his or her visitation time with the child when that parent is behind on child support payments. Tennessee has child support guidelines. The child support obligation is based on the income and assets of the parents, and the number and ages of the children. If you have children, then filing for legal separation may also, or in alternative, provide you the same protections as filing for divorce, while giving you the opportunity to explore whether things can be patched up between you and your spouse.
Financial Obligations and Asset Division
One of the most critical components of a legal separation is the arrangement of finances between the spouses. The legal separation in Tennessee will not change the property interests held by each spouse prior to the separation. Therefore, it is not a division of property but will serve to perhaps preserve the property interests that one spouse has during the duration of the separation. This is often the case where one spouse serves in the military and may not be in Tennessee for the relevant time period required to request a divorce. Sometimes parties remain separated for financial reasons, rather than to reconcile. In such a case, the court can divide property so that one spouse can assume ownership of the equity in the marital home or other assets so that the spouse can then refinance the obligation to a third party and acquire full ownership to the asset.
The division of property during a legal separation can also save you money. Given the costs involved in a divorce, separating some of the marital property may be in your best interest. For example, if you own a rental home and your spouse has an equal interest in it, you may want to consider a separation. As long as you understand that the separation may last indefinitely and you could end up divorced some years down the road, you may prefer a separation agreement.
It is important to note that the Court can impose both temporary spousal support and child support obligations during a legal separation. The main difference between a legal separation with and without children is the potential support obligations that can be imposed.
Seeking Legal Support and Guidance
Many couples contemplating legal separation or divorce in Nashville look to an experienced separation attorney to help with this decision. Tennessee is a no-fault state, so legal separation and divorce are the same, according to Tennessee law. Not all judges will preside over a legal separation; however, if a divorce case has been filed within 30 days of filing for legal separation it will be consolidated by the court.
It is in your best interest to speak with an attorney to determine whether legal separation is the best option for you. An attorney who specializes in legal separation will lead you through all aspects of the process, including filing legal separation papers and other important documents. Legal separation very well might be the first step toward divorce, and once a couple separates, it’s not uncommon for reconciliation to take place.
Nashville Divorce and Family Law Attorneys provides reliable information and advice on legal separation. We encourage clients to schedule a consultation to answer their questions and address their concerns.
Legal Aid Organizations – Information is available for legal separation and divorce – You may qualify for a free legal separation from Tennessee legal aid. This organization helps those who can’t afford an attorney with a no-fault divorce. Legal Aid features a Family Law information page.
Commonly Asked Questions Regarding Legal Separation in Tennessee
Q: What are the grounds for filing for legal separation in Tennessee?
A: In Tennessee, valid grounds for receiving a legal separation include inhuman treatment or "cruel and inhuman treatment," adultery, desertion, living apart for a year or more, conviction of a felony offense, impotence at the time of marriage, pregnancy at the time of marriage and any other appropriate ground as determined by the court.
Q: How long do I have to be separated before being able to get a divorce?
A: In Tennessee, you must be separated from your spouse for either two years with a minor child or five years without a minor child before you can file for divorce.
Q: What is the difference between a legal separation and a divorce?
A: A divorce is a viable option if one spouse can prove there has been irreconcilable differences between them . However, a legal separation is a clearer option, as it does not require either spouse to provide any evidence about their reasons for separating. With a legal separation, spouses can qualify for a divorce after one year regardless of any minors involved. While there may be issues of bigamy with a strict legal perspective, a legal separation does still allow both spouses to marry others and live separately, even while in the eyes of the court they are still legally married. When the spouses are actively obtaining a legal separation, there are no waiting periods on assets, property or debts, even if they are separated. Separation usually prepares a family for their life as a divorce, without those same divorce ramifications.
