Why Get A Legal Separation In Tennessee Instead Of A Divorce

Why Get A Legal Separation In Tennessee Instead Of A Divorce?

No couple decides to get married with the intention of getting divorced later on. Unfortunately, some relationships do not work out in the long run. That means there comes a time when decisions about separation and divorce are going to need discussing. If both spouses are not fully confident divorce is the next move, a legal separation might be the best choice. It is a less severe and non-permanent solution to consider before divorcing.

Rarely is there one single reason couples will decide a legal separation in Tennessee is best for them. It could be they want a break from living with each other or cannot divorce because of religious beliefs. Below are some common questions and answers for those who are married and looking for options for exiting their marriage in Tennessee.

Why Would Someone Get a Legal Separation Instead of a Divorce?

There are numerous reasons to consider a legal separation instead of a divorce in Tennessee including:

• Preserving valuable federal and tax benefits that would end if divorced
• A separation may help preserve family life for children involved
• A military pension may be ensured with a legal separation over divorce
• Allowing the couple to remain on each other’s medical insurance

If you’re not certain of what route to take with your marriage after reading this in-depth article, then please contact Jed McKeehan at (865) 294-8008 today for your free family law consultation.

What Are The Benefits of Getting a Legal Separation?

There are advantages of choosing to legally separate instead of divorce to take into consideration. Separation agreements can protect both spouses and will help resolve issues such as debts, property, child custody, visitation, child support, alimony and other important matters in writing. Additionally, a legal separation allows spouses to remain married to retain insurance coverage in the event of disability or death of a spouse.

Legally separated couples may choose to cohabitate again at any time and be recognized once again as married. When you divorce, a couple cannot do this. They must get remarried to be recognized as such again. In Tennessee, a legal separation will not affect the matrimony bonds, but it will allow the parties the divide their assets and debts and protect the parties from being liable for each other’s debts going forward.

What Qualifies As Being Legally Separated?

In Tennessee, a legal separation is recognized when a judge signs an order that legally “separates” the parties It is essentially the same as a divorce, except the spouses are not allowed to remarry until they officially divorce. The grounds for a legal separation in Tennessee are the same for a divorce. The court system can rule on all issues for a legal separation as they would divorce, except for the dissolution of the marriage. Legal separation decrees can include financial support, child custody, and distribution of assets.

The state of Tennessee recognizes 15 grounds for divorce and legal separation. The most common is irreconcilable differences. This is the same as a no-fault divorce in Tennessee. If you and your spouse cannot file a no-fault separation, you will have to file on the grounds of a fault. Some of the more common grounds include habitual drunkenness, adultery, and inappropriate marital conduct

How Long Can You Be Legally Separated For?

Spouses can remain legally separated indefinitely if they choose to after the agreement is granted by the court. However, after two years of separation (the 15th item on TN state code on grounds for divorce), the court can grant a divorce if either of the spouses proves reconciliation has not happened. The other spouse cannot stop the divorce from being granted at this time.

Are You Protected Financially When Legally Separated In Tennessee?

When you are having issues with your spouse, you may think a divorce is the only way to split and protect yourself financially. However, legal separation in Tennessee can offer the same protection as divorcing. In some cases, it works out better than divorce. It’s best to consult a family law attorney to best understand your protections, since every case is unique.

Can You Be Legally Separated and Live In The Same House?

When legally separated in Tennessee, couples can choose to cohabitate again at any time, or they may never stop cohabitating throughout the entire process They will continue to be recognized as being married until the paperwork has been filed to move the separation to divorce.

Do You Have To Pay Alimony While Legally Separated?

Just as with a divorce, legally separated spouses can be awarded alimony to be paid. Who gets paid and how much will be dependent on the case circumstances and the decision of the court.  It’s important to know that the courts have decided that if alimony is awarded in a legal separation the courts are able to review the award of alimony and may decide to change the alimony if either party moves for a divorce.

Does The Date Of Separation Matter In A Divorce?

When it comes to a legal separation in Tennessee, the date you are officially granted the separation agreement by the court is significant. After two years of being legally separated, either spouse may ask for a divorce to be granted.

What Are The Disadvantages Of Getting A Legal Separation?

When obtaining a legal separation over a divorce, the same amount of work will be involved. The only difference is that spouses will continue to be recognized as married. The main disadvantage of legally separating is neither spouse will be able to remarry or enter into another domestic partnership.

In Tennessee, it may be considered adultery to enter into a sexual relationship with someone other than your spouse while legally separated. If you’ve been dating while legally separated and your spouse decides to divorce, they may do so on the grounds of adultery. This can have negative effects when the courts consider alimony.

Another downside to legally separating is that it does not automatically terminate a spouse's right to get an inheritance from the other. Because the marriage is never fully terminated in the eyes of the law, one spouse may be entitled to a decedent's estate. 

Why Would You Choose to be Legally Separated Instead of Just Getting Divorced?

Most of the individuals who opt for legal separation due so for religious religions.  Malachi 2:16 states, “‘For I hate divorce,’ says the Lord.” Legally separating instead of divorcing allows an individual to extricate themselves from a relationship which they no longer desire to be in, while not running afoul of their moral and religious beliefs.  

Separation Vs. Legal Separation In Tennessee?

If you and your spouse are not confident in a divorce or legal separation, you can participate in a trial separation. During a trial separation, you will usually remain married and live apart. This time will be spent reevaluating your marriage and both parties may decide to create an oral agreement about terms of support, visitation and child custody. 

To make your agreement more formal, it can be put in writing and signed by a notary. Couples need to understand that courts will not monitor or authorize a trial separation. If during a trial separation a spouse violates any of the oral or written terms they decided on together, the only recourse to be taken is for the other party to actually file for a legal separation or divorce.

Pros And Cons Of Separation and Divorce?

Even if a legal separation is only for a temporary amount of time, it can be a better option for many couples for numerous reasons. Both divorce and separation, however, have their own sets of pros and cons to consider before going forward.

Pros Of Legal Separation

• It may not cause problems with a couple's religious or ethical beliefs
• Couples may want to try and fix their marriage at some point after living apart
• One partner may continue getting insurance coverage from the other partner
• There can be tax benefits of remaining married
• One spouse may continue to be eligible for pensions or social security benefits from the other spouse before divorcing.

Cons of Legal Separation

• Not all insurance companies allow for spouse benefits once a legal separation has been finalized
• Couples may not remarry until they formally divorce
• If alimony is a consideration, the courts are allowed to modify the alimony amount if a divorce is later sought

Pros of Divorce

• Divorce makes separating official and legalized. This is the final step in dissolving the marriage.
• Divorcing is a permanent solution, you will not need to go through the court process again in order to convert the separation to a divorce.
• You can get remarried once your divorce is finalized.

Cons of Divorce

• A divorce can be a more expensive process than a legal separation because the parties may feel the need to fight harder given the finality of what is being considered. You will have to cover attorney's fees, court fees and other expenses involved with filing a divorce.
• Divorces can be mentally exhausting for both spouses and any children involved.
• Divorces can cause strain on other personal relationships with friends and family members. They may feel like they have to pick sides once you divorce. You may also find yourself wanting to stay away from any married friends.

Can You Date While Legally Separated?

While it is possible to date while legally separated in Tennessee, it can come with serious consequences. Some of those consequences are unforeseeable and can be critically damaging to the divorce case of the dating spouse. Dating while legally separated can be considered inappropriate marital conduct or adultery under Tennessee law.

Many lawyers have witnessed their client's dating during a legal separation become the causation of moving into divorce proceedings. Dating while legally separated can also strain the former spouses’ relationship long after the divorce has been filed. Strained relationships between divorced spouses can cause problems later on when trying to co-parent under their permanent parenting plan settled by the court.

The negative consequences are not limited to the former spouse and possible embarrassment. It can also put a strain on the dating parent's relationship with their adult children and can cause ramifications for years to come.

What Is A Legal Separation Agreement?

Separation agreements are formal agreements granted by courts in Tennessee to spouses who wish to remain married. 

The agreement resolves marital issues such as financial matters, visitation, child custody, debts, division of property and other matters in writing. Separation agreements in Tennessee are legally binding. 

Two years after a court grants a legal separation, either spouse may decide to file for divorce if there has been no reconciliation. The court may also choose to dissolve a marriage before the two years have passed at their discretion.

What Is The Paperwork Needed For A Legal Separation In Tennessee?

In Tennessee, filing for legal separation is essentially the same as filing for divorce. The spouses must file a petition with the court and ask the court for a legal separation.

If there are no children involved, the court will rule on your case no sooner than 60 days after filing the petition. If there are children involved, the court will not hear your case sooner than 90 days after filing. 

Many couples can reach a written agreement regarding financial support, property and the children before their hearing. Any agreements made by the parties will be reviewed by the court, and if the court finds the agreements acceptable, then they will make those agreements part of the final order. If the parties' legal separation is eventually converted into a divorce, the final order of the divorce may adopt the terms of the legal separation agreement as to property division, alimony, financial support, and child custody.

Do You Need A Lawyer To Handle Separation Agreements?

It is possible to file for a legal separation in Tennessee without a lawyer. With the increase in information found online, many couples think they can resolve their issues without the need or cost of legal help. However, search engines are not a replacement for real, professional legal help and advice. If you are considering filing for a legal separation from your spouse or want to divorce, it is important to hire the help of a licensed and qualified attorney. They can help you navigate the complexities of the law regarding marriage and will ensure a fair outcome.

An experienced family law attorney can inform you of all of your options before you make your decision. If there are children involved, it is crucial to have legal help because your parenting time will be forever changed. 

If you’re still trying to decide between legal separation and divorce, contact me, Jedidiah McKeehan, at (865) 294-8008 for a free consultation today. Let’s make sure you have all the information and understand the options as it comes to this difficult life decision. 

by Jed McKeehan

Filing for Divorce in TN: 8 Things You Need to Know

If someone wants to get a divorce in Tennessee, they have to prove to the court a reason why they should be granted a divorce. I’ll answer some of the most popular questions asked about Tennessee divorce laws and provide more details about the process.

1. What are the grounds for divorce in Tennessee?
2. Is Tennessee a no-fault divorce state?
3. Do you need an attorney to file for divorce in Tennessee?
4. How does Tennessee handle divorce with a child?
5. How is property divided in a Tennessee divorce?
6. Does it matter who files for divorce first in Tennessee?
7. What do you do if your spouse won't sign divorce papers?
8. How long does it take to get divorced?

Tennessee Code Annotated 36-4-101 lists 15 options that, if proven, can allow you to become divorced. I will tell you, some of them are pretty out there and do not get brought up any more. Most people get divorced on the grounds of “inappropriate marital conduct,” because it is the catch-all reason for getting divorced (it can mean anything, including not taking out the trash one time), or “irreconcilable differences” which is the grounds used to divorce people when they come to an agreement prior to an actual trial.

What Are the Grounds for Divorce in Tennessee?

According to Tennessee divorce laws, the following are grounds for divorce:

• Either party at the time of the marriage was/is naturally impotent and incapable of procreation.
• Either party has gotten married a second time while still married to someone else.
• Either party has committed adultery.
• Desertion or abandonment by a party without cause for one whole year.
• Being convicted of a crime that renders a party infamous.
• Being convicted of a felony and sentenced to serve time in a penitentiary.
• Either party has attempted to kill the other party.
• Refusal by either party without cause to move to Tennessee with their spouse and being absent from Tennessee for 2 years.
• The woman was pregnant at the time of the marriage by another man without the knowledge of the husband.
• Either party is habitual drunkenness or abuse of narcotics by either party, and the habit was contracted after the marriage.
• Inappropriate marital conduct.
• Offering indignities to a spouse and thereby causing a spouse to withdraw.
• One spouse has abandoned or turned the other spouse “out of doors,” and has refused to provide for the spouse while being able to do so.
• Irreconcilable differences.
• For a continuous period of two years or more, the parties have failed to cohabit, and there are no minor children.

Fault and No-Fault Divorces

First, let’s begin with the two grounds of divorce in Tennessee. Tennessee offers both fault and no-fault divorces.

What is a no-fault divorce? A no-fault ground for divorce means the couple agree to every statement in the petition and are asking the court to approve it. The couple typically states there are “irreconcilable differences” within the marriage.

What Does “Irreconcilable Differences” Mean? According to LegalDictionary.net, the following is the definition of irreconcilable differences: “1) differences of opinion or will that cannot be brought into harmony, or 2) a relationship that has become relentlessly hostile.”

If both parties in a marriage agree that there is no way to repair their relationship and preserve the marriage, they have irreconcilable differences and can file for a no-fault divorce. This grounds for divorce can ONLY be used for a no-fault divorce in the state of Tennessee. In other words, the divorce is uncontested and no single party is at fault for the breakdown of the marriage.

Conversely, a fault ground for divorce is used when the couple cannot agree on things and need to argue the terms and conditions in court. This can include disagreements over property and asset division, custody arrangements, spousal and/or child support, just to name a few.

Most common grounds for a fault divorce in Tennessee:

Inappropriate Marital Conduct

The most common reason given for a fault divorce is “inappropriate marital conduct.” What is considered “inappropriate marital conduct” in Tennessee law? This is a “catch-all” phrase that could include anything, even something as simple as not taking out the trash. People often get worked up over the term because they feel that they are being accused of or blamed for something, but again, it is a generic phrase used in this situation. It literally could mean anything and allows you to argue in front of a court.

Adultery by Either Party

What are Tennessee divorce laws about adultery? In Tennessee, the court considers having voluntary sexual intercourse with another person, who is not your spouse, the commitment of adultery. Although you can file for a no-fault divorce in Tennessee, if one member of a married couple commits adultery, the other member can use that as grounds to file for divorce, citing it as a fault contributing to the collapse of their marriage.

This can be used as a means to get alimony or refuse alimony, in a fault divorce. For whatever purpose, proof of adultery will be required for a favorable court ruling. This proof can rely on circumstantial evidence about the willingness and opportunity to cheat with another person and does not have to prove the act of sexual intercourse.

It’s important to note that adultery will only be used to decide the granting of a Fault Divorce and the assignment of alimony. It will not be considered in decisions regarding the division of assets unless substantial funds have been used to support another or otherwise fund the affair itself.

If you find yourself in any of the above situations, you’ll probably have more questions than answers. Call me, Knoxville Attorney Jed McKeehan, for help sorting through the divorce laws in Tennessee. If you need help (or think you might need help soon), call (865) 294-8008.

FAQs About Divorce in Tennessee

Is an Attorney Required in a Tennessee Divorce?

I am often asked if you need to hire an attorney for a divorce, even for a no-fault divorce. Technically, you don’t have to have an attorney to file for and secure a divorce, but it is highly recommended. A divorce is a lawsuit and things can quickly get serious if there is not someone there to watch your back and give you advice about what terms you should and shouldn’t agree to (especially when it comes to children).

Filing for Divorce in Tennessee With a Child

When one spouse files for divorce from another in a marriage where a child is involved a few things must happen. Each parent attends a four-hour parenting class, they exchange preferences and requirements, and then mediation is held with both parents to try and find a settlement without going to trial. Tennessee courts encourage the development of a Permanent Parenting Plan that will guide decisions related to the child of a divorced couple. The goal of these plans is to move away from determining “custody” and “visitation”, and towards a plan that keeps the best interest of the child at its center. The goal is to find a mutually-agreeable resolution between parties, but if this cannot be found then decisions concerning a minor child will be made in divorce court.

How is Property Divided in a Divorce in Tennessee?

In the state of Tennessee marital property is divided equitably in divorce proceedings. Marital property is generally defined as anything purchased during the years a couple is legally married and can include homes, boats, automobiles, etc.

Does it matter who files for divorce first in Tennessee?

Contrary to popular belief, there is no real advantage to being the spouse who files for divorce first.

What if Spouse Won’t Sign Divorce Papers?

In Tennessee, if a spouse will not sign divorce papers after being served, there are still ways to move forward with the divorce. You can file with the court and await an assigned court date. If your spouse does not show up for that court date, the judge will grant a divorce by default judgment. In this case, the state of Tennessee will determine if the papers have been properly served and there has been ample time for a response (30 days). If these criteria are met, a court date is set where a judge can grant the default divorce. Because both of these options involve appearing in court before a judge, your best bet is to work with an experienced divorce attorney.

How Long Does It Take to Get Divorced?

When people come to see me about divorce, one of the questions that I hear the most is, “I want this done as quickly as possible, how long will it take until I’m actually divorced?”

The answer is, “Well, it depends.”

Pursuant to Tennessee Code Annotated 36-4-101, the absolute quickest that you can get divorced in Tennessee is 60 days after you file the complaint at the courthouse requesting a divorce.

The law says that if you are getting divorced, and you have no children, you cannot get divorced until 60 days after the divorce paperwork is filed. If you are getting a divorce and you have children under the age of 18, then you must wait 90 days after the paperwork is filed before you are allowed to get divorced. These time periods are called, “the cooling down period.” The legislature decided that they preferred that individuals not be allowed to quickly divorce so that they can contemplate and ponder whether getting divorced is actually what they desire to do.

Having said that, those timelines depend on a number of things. When you file a complaint for divorce, you will not have a divorce trial date until at least 8 or 9 months after you file, at the earliest. And in a great number of cases, there is discovery, depositions, and mediation that need to take place prior to trial, so that trial date can get pushed a number of times so that it can sometimes take years before people get divorced.

The only real way you can get divorced that quickly is if you and the other person reach an agreement before you file for divorce, or you work out an agreement during the period prior to being allowed to divorce.

If you do reach an agreement, you and your attorney can go before the judge after the cooling down period has passed and ask the judge to grant your divorce. Both people do not have to be there, only one of the parties is needed for this hearing.

Knoxville Attorney, Jed McKeehan is available to help you best make it through the confusion that can surround divorce laws in Tennessee. If you need help (or think you might need help soon), call Jed today at (865) 294-8008.

by Jed McKeehan