FAQ - Family Law

Can either spouse be awarded alimony in Tennessee?

According to T.C.A § 36-5-121, Tennessee law allows either party to be awarded alimony, regardless of which party is awarded a divorce. Alimony may be awarded to either the man or woman – gender of a party may not be considered when awarding spousal support.

Furthermore, in Tennessee, alimony is appropriate when one party is found to be economically disadvantaged relative to the other party. The legislative preference in Tennessee is to award rehabilitative alimony.

What factors will the court consider when making a determination of alimony?

Tennessee Courts will consider the following factors set forth in T.C.A § 36-5-121 when awarding alimony:

  • The relative earning capacity, obligations and resources of each party, and income from all sources
  • The education and training of each party
  • The duration of the marriage
  • The age and condition of each party
  • The need for the custodial parent to stay home
  • The assets of each party
  • The marital property division
  • The standard of living during the marriage
  • The relative fault of the parties, if the court deems it appropriate
  • The extent to which each party has made such tangible and intangible contributions to the marriage, including contributing to the other parties education, training, or increased earning power
  • Other factors that are necessary to consider the equities between the parties

What types of alimony are available in Tennessee?

In section §36-5-121 of the Tennessee Code there are four types of alimony that may apply in divorce proceedings depending upon the circumstances. An individual could be awarded:

Rehabilitative Alimony
The main purpose of rehabilitative alimony is to provide for the disadvantaged spouse and allow her to regain the economic and material status that was enjoyed  during the marriage. It may last a short or a long time, depending on the decision of the Court.

When a spouse is disadvantaged economically in relation to the other spouse, the state has intended, whenever possible, to grant an order for payment of rehabilitative alimony.

When rehabilitative alimony is awarded, the payments shall remain in the control of the Court for the length of time that the award is made, but may be altered either by increase, decrease, extension or even termination, depending on the discretion of the Court. The term of rehabilitative alimony may be extended as the Court sees fit if the recipient of the alimony has unsuccessfully made all reasonable attempts to achieve a comparable standard of living as that during the marriage.

Rehabilitative alimony obligation ends in the event of the death of either the payer or recipient.

Periodic Alimony (in futuro)
If the couple is at an economic imbalance and one spouse is more economically disadvantaged and there is no reasonable option of rehabilitation, the Court will consider the facts and circumstances and possibly grant periodic alimony. Periodic alimony is also sometimes called alimony in futuro. Alimony in futuro is an order whereby the recipient receives ongoing support for a long time – usually until remarriage or death.

There are some cases when the spouse may begin living with a third party, and it is sometimes presumed that the third person may be providing financial support to the alimony recipient. This would be an example of a case where someone paying alimony in futuro may wish to ask the Court to modify or terminate the obligation.
In the event of remarriage of the recipient or the death of either the recipient or payer, alimony in futuro is terminated.

Transitional Alimony
Transitional alimony is essentially alimony that’s paid for a set period of time, or a transitional period. In cases where rehabilitation is unnecessary but there does exist a financial need for the spouse to return to the position of economic equality, the Court may award transitional alimony. This is for the disadvantaged spouse to recover from the new economic situation, and resume living at the same standard as during the marriage.

Transitional Alimony obligation ends in the event of the death of the payer or recipient.

Alimony in Solido
Alimony in solido is generally a lump sum alimony payment that may be ordered instead of other alimony types, or in addition to those awards. This can include payments for legal fees incurred in the divorce, but is generally awarded as a kind of long-term support outside the realms of transitional alimony.

Recipients may sometimes receive alimony in solido through installment payments, which are calculated at the time of the Court order.

How can I collect child support from the divorced parent who has stopped paying?

A petition for civil contempt is one of the most effective ways to force a parent to pay child support if they simply have stopped paying. The court is given the power to hold the parent in contempt under Tenn. Code Ann. 29-9-104.

At the contempt hearing you must show several things in order to hold the defendant in contempt. You must show that there was an order requiring the defendant to pay child support, if you are divorced this will probably be in your final decree. You must show that the defendant failed to follow the order by not paying child support. The third item that must be established is that the defendant was willful and deliberate in not paying child support. This means that they could have paid child support but didn’t. For example, if the defendant did not pay because they were in prison, they may have a defense.

If the defendant is held in contempt, the court can fine and/or incarcerate them in the county jail. Punishment for contempt can be up to 10 days for each count.

How is child support determined in Tennessee?

Tennessee uses a complex formula called the “income shares” model to calculate child support. Under the “income shares” model, the child support guidelines will be presumed reasonable unless rebutted by evidence to the contrary. In other words, they are mandatory except when a legal reason for deviating from them exists.

The amended guidelines, a tutorial for the income shares model, and the new child support worksheet are available on the internet at: http://www.tn.gov/humanserv/is/incomeshares.html

What standard and factors will the judge use when awarding primary custody to one parent?

Tennessee courts use several factors to determine who gets custody of the children. The guiding factor in all TN custody decisions is the best interests of the child. Courts are prohibited from considering the gender of the parent in their child custody determinations. In making initial custody determinations the court will consider all relevant factors in the case including the factors below, set forth in T.C.A § 36-6-106:

  • The Willingness and ability of the parent to facilitate and encourage a close relationship between the child and the other parent.
  • The ability of the parent to instruct, inspire, and encourage the child
  • The strength, nature, and stability of the relationship between the child and the parent
  • The parents refusal to attend a court ordered parent education class
  • The disposition of the parent to provide the child with food, clothing, medical care, and education
  • The degree to which a parent has been the primary caregiver
  • The love, affection, and emotional ties existing between each parent and the child
  • The emotional needs and developmental level of the child
  • The character and physical and emotional fitness of the parent
  • The importance of continuity in the child’s life
  • Evidence of abuse of the child or the other parent
  • If the child is over 12, the preference of the child may be considered
  • Any other factors that are relevant to the court

Can my child choose which parent he wants to live with?

A child cannot choose a parent until he reaches the age of majority (18). Until a child becomes an adult they may not decide on their own which parent to live with after divorce.

However, in Tennessee, if a child is 12 years of age or older the judge may hear testimony from the child as to their preference. However the judge is under no obligation to place the child in their preferred home. The preference of the child is merely one factor that the judge will consider in awarding custody to the primary residential parent. The main consideration that the judge uses to determine custody is the best interest of the child. The preference of the child is only one consideration in determining what is in the best interest of the child.

The primary residential parent is a homosexual is that enough to justify a change of custody?

In Tennessee, the mere fact that the primary residential parent is a homosexual is not enough to justify a change of custody. In 2005, the Court of Appeals addressed this very issue.

The Tennessee Court of Appeals ruled that a mother’s homosexuality alone would not justify a change of custody. (Berry v. Berry) The Court found that there was no proof that the mother’s sexual orientation had affected the child’s well being. The Court stated that the post-divorce homosexuality did not create a material change in circumstances that would justify a change in custody.

In order to change custody a parent would have to show that there has been a material change in circumstances. In this case, the parent would have to show proof that the child was in someway being harmed by living with the homosexual parent.

What is a parenting plan?

The parenting plan is a document that divides custody, visitation, and decision making between the parents.
One of the main items in the parenting plan is the residential schedule. The residential schedule defines who the children will reside with during the school year, vacations, holidays, special occasions, and any limitations when visiting with a parent. The plan can award holidays such as Thanksgiving to the father every even year and to the mother every odd year. The parents can even agree that some holidays will be given to one parent every year. Usually a plan will define what time a holiday begins and what time it ends. It is important to have a detailed plan to prevent problems with interpretation later.

The next step in a plan is to assign decision making between the parents. Major decisions such as education or religious upbringing can be assigned to one parent or jointly. Day to day decision making is usually given to the parent that the child is residing with at the time the decision needs to be made. If certain decisions are especially important to a parent, this is the time to make that known and reach an agreement.

The next major item in a parenting plan is child support. This area states which parent will pay child support and in what amount. Child support is calculated using the state guidelines which is based on the income shares model. This section will also explain which parent is responsible for maintaining health insurance on the child. If a parent is required to have life insurance during the child’s minority, it will also be listed here.

A provision for dispute resolution is generally included in a parenting plan. Many plans provide for disputes between the parties to go through mediation before going back to court. This provision should also state who is responsible for costs of mediation or arbitration.

How will a couple’s property be divided during the divorce process?

In Tennessee, if you and your spouse can agree on how to divide your property, then your agreement will be documented in a “Marital Dissolution Agreement.” If you can’t agree, you’ll have to go to court and the judge will “equitably divide” your property.

“Equitable” means fair, just, and reasonable, based on the factors set out in T.C.A § 36-4-121. While equitable does not mean equal, most judges will admit that they begin the trial planning to award 50% of the property to each member of the couple and move one way or the other based on the evidence and arguments presented.

What factors will Tennessee courts look at when making an “equitable distribution?”

Tennessee courts will look at the following factors set out in T.C.A § 36-4-121.

  • The duration of the marriage;
  • The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
  • The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
  • The relative ability of each party for future acquisitions of capital assets and income;
  • The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
  • The value of the separate property of each party;
  • The estate of each party at the time of the marriage;
  • The economic circumstances of each party at the time the division of property is to become effective;
  • The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
  • The amount of social security benefits available to each spouse; and
  • Such other factors as are necessary to consider the equities between the parties

What is considered “separate property” in Tennessee?

Under T.C.A. § 36-4-121 the following will be considered separate property:

  • All real and personal property owned by a spouse before marriage;
  • Property acquired in exchange for property a spouse acquired before the marriage;
  • Income from (for example, rent) and appreciation (increase in value) of property owned by a spouse before marriage except when characterized as marital property;
  • Property acquired by a spouse at any time by gift, bequest, devise or descent (inheritance);
  • If a spouse suffers a personal injury or is the victim of a crime, pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
  • Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

What is considered “marital” property in Tennessee?

Under T.C.A. § 36-4-121 the following will be considered marital property:

- all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce

- income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage

- includes recovery in personal injury, workers’ compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.

How will a Tennessee court determine debt division compared to Property division?

The Court of Appeals reaffirmed in King v. King 986 S.W.2d 216 (1998) the following factors for debt division:

  • The debt’s purpose;
  • Which party incurred the debt;
  • Which party benefited from incurring the debt; and
  • Which party is best able to repay the debt.

As a practical matter, where debt secures a particular asset, a court will almost always require the party receiving the asset to pay the associated debt.  If both spouses signed on the loan, the court may require the spouse who gets the asset to refinance the debt, removing the other spouse from the loan

Is it possible that my “separate” property will be considered “marital” property during distribution?

Yes, under current Tennessee law it is very possible.

The property that a spouse acquires before marriage is typically considered separate property in Tennessee.  At divorce, the separate property is awarded to whichever spouse originally owned the property before the marriage.

However, under T.C.A § 36-4-121, separate property can become marital property if it is commingled with property that belongs to the other spouse, or if it is commingled with property acquired by either spouse during the marriage.  Tennessee courts describe commingled property as that which is “inextricably” mingled.   If the property, however, remains segregated or can be traced back to its original source, no commingling occurs and the separate property cannot be divided by the court as marital property.

Can I modify my current “parenting plan” in Tenessee?

Yes. Under T.C.A 36 – 6 – 101, a court can modify a parenting plan when there is a material change in circumstances. This material change no longer requires a showing of substantial risk of harm to the child. The Tennessee statute gives some examples of what a “material change” may be:

  1. significant changes in the child’s needs over time, which include changes relating to age;
  2. significant changes in the parents working or living condition that significantly affect parenting;
  3. failure to adhere to the current parenting plan;
  4. ANY other circumstances making a change in the permanent parenting time in the best interest of the child.

How can I get full custody after the final divorce decree?

Under T.C.A 36-6-101 a parent may modify custody if the petitioner proves by a preponderance of the evidence a material change in circumstance.

“A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.”

Can my parental rights be terminated?

Yes. Under T.C.A 36-1-113, a parent’s rights can be terminated for the following reasons:

(1) Abandonment by the parent or guardian
(2) Substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan;
(3) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:

(A) The conditions that led to the child’s removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child’s safe return to the care of the parent(s) or guardian(s), still persist;

(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and

(C) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home;

(4) The parent or guardian has been found to have committed severe child abuse as defined in § 37-1-102, under any prior order of a court or is found by the court hearing the petition to terminate parental rights or the petition for adoption to have committed severe child abuse against the child who is the subject of the petition or against any sibling or half-sibling of such child, or any other child residing temporarily or permanently in the home of such parent or guardian;

(5) The parent or guardian has been sentenced to more than two (2) years’ imprisonment for conduct against the child who is the subject of the petition, or for conduct against any sibling or half-sibling of the child or any other child residing temporarily or permanently in the home of such parent or guardian, that has been found under any prior order of a court or that is found by the court hearing the petition to be severe child abuse, as defined in § 37-1-102;

(6) The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court;

(7) The parent has been convicted of or found civilly liable for the intentional and wrongful death of the child’s other parent or legal guardian;

I am a grandparent – do I have any rights to visit my grandchildren?

Possibly. Under T.C.A 36-6-306 there are certain situations when a grandparent may have visitation rights.
Tennessee law allows for grandparents to seek visitation rights in limited circumstances:

  1. When the parents are divorced, legally separated, or when the parents were never married;
  2. When the court of another state has granted grandparent visitation;
  3. When one of the parents is deceased or has been missing for six months or more;
  4. When the grandchild lived with the grandparent for twelve months or more before being removed by one or both parents;
  5. When the grandparents had a significant relationship with the grandchild for at least twelve months before they were denied contact, the relationship was not ended because of abuse or harm to the child, and the disruption of the relationship would emotionally harm the grandchild.

If one of the above is true, and the grandparent is denied visitation, then the grandparent may seek a court order for visitation

In order to grant the grandparent visitation, the court must first determine that there is a danger of substantial harm to the child.  If the court does not believe the child will be harmed, then the grandparents have no legal right to visit the child.
It should also be noted that when a child is adopted by a non-relative, grandparents have no right whatsoever to visitation with the child.

What is substantial harm?
When the grandchild has lived with the grandparent for at least twelve months before being removed from the home, it is presumed that denying the grandparent visitation with the child will result in irreparable harm.  Also, in cases when one parent is deceased, and the grandparent seeking visitation is the parent of the deceased parent, it is also presumed that denying visitation with the grandparent will harm the child.  In both of these circumstances, the parents can present evidence to show that the child will not be harmed.

In all other situations, there must be a significant relationship with the grandchild in order for the court to decide that the grandchild will be substantially harmed if the relationship ends

However, if the grandparent was the primary caregiver for the child for at least six months, OR if the grandparent visited frequently with the grandchild for the year prior, the grandparent-grandchild relationship is considered significant under current law.

The court will then go on to decide whether the disruption in the relationship will cause substantial harm to the child.  Substantial harm includes any direct harm to the child, including when the child’s basic needs won’t be met without the grandparent, and when the child will experience severe emotional harm.

Once the court has decided that (1) there is a significant relationship and (2) that an end to that relationship will cause substantial harm to the child, then the court must decide (3) whether visitation with the grandparent is in the best interests of the child.

A number of factors set forth in 36-6-306 will be considered including: the prior relationship between grandparent and grandchild, the child’s emotional ties to the grandparent, the child’s preference (when appropriate), any hostility between the grandparent and parents, and the parents’ custody and visitation schedule.