Ending a marriage is a difficult decision to make. Once that decision is made, it is important to move forward as efficiently as possible. At BMJRG, we can advise you of the process and the law and assist you in making the decisions that must be made during this time.
Residency requirements and where to file for divorce – A divorce action is initiated by filing a complaint for divorce. In Tennessee, there is a residency requirement that must be met for a party to file for divorce. The residency requirement is jurisdictional. The residency requirement is intended to insure that Tennessee has a sufficient relationship with the parties and their marriage to make it reasonable for a court in Tennessee to affect the parties’ marital status. To meet the residency requirement, the party filing for divorce (the “Plaintiff”) must be a bona fide resident of the state of Tennessee when the acts comprising the ground(s) for divorce were committed or, alternatively, if the acts complained of were committed outside of Tennessee and the Plaintiff resided out of the state at the time the Plaintiff or the Defendant must have resided in Tennessee for at least six months prior to the filing date of the complaint for divorce. Tenn. Code Ann. § 36-4-101. Military personnel or the spouse of any such person must be a resident of Tennessee for at least one year prior to filing.
The complaint for divorce must be filed in the Chancery or Circuit Court or other court having divorce jurisdiction in the county where the parties reside at the time of their separation, or in which the Defendant resides, if a Tennessee resident. However, if the Defendant is a non-resident of Tennessee or a convict, then the complaint can be filed in the county where the Plaintiff resides. Tenn. Code Ann. § 36-4-105.
Statutory injunctions – At the time of the filing and service of the complaint for divorce, certain injunctions go into effect automatically, which bind both parties to the divorce. These injunctions can be found at Tenn. Code Ann. § 36-4-106.
The injunctions remain in effect until the final decree of divorce or order of legal separation is entered, the petition is dismissed, the parties reach agreement or until the Court modifies or dissolves the injunction.
Grounds for divorce – Tennessee is not a no fault state. In Tennessee, you can receive a divorce on irreconcilable differences only if you and your spouse agree on all issues between the two of you and enter into a Marital Dissolution Agreement (also known as an “MDA”) that makes adequate and sufficient provision for the equitable settlement of any property rights and, if you have minor children, a Permanent Parenting Plan. Otherwise, you or your spouse must prove that you have grounds for divorce as set forth in Tenn. Code Ann. § 36-4-101.
In Tennessee, the following are grounds for divorce from the bonds of matrimony:
In some cases, a person may elect to seek a legal separation, rather than a divorce. The grounds to file a complaint for legal separation are the same grounds that are applicable to a complaint for divorce. A legal separation does not affect the bonds of matrimony but permits the parties to cease matrimonial cohabitation. The court may provide for matters such as child custody, visitation, child support, spousal support and property issues during legal separation upon motion by either party or by agreement of the parties. The court has the authority to grant a divorce to either party if there has been an order of legal separation for more than two years, without reconciliation, and a complaint is filed by either party for a divorce. See Tenn. Code Ann. § 36-4-102.
Through adoption, parties become the legal parents of a child not born to them. This process, while joyous for adoptive parents, must be handled carefully to ensure that compliance with the law is met. BMJRG handles petitions for adoption, including private adoptions, step-parent adoptions and grandparent adoptions.
Tenn. Code Ann. § 36-5-121 governs the types and awards of alimony. In short summary, there are four types of alimony allowable under Tennessee law which may be available to an economically disadvantaged spouse: rehabilitative alimony (designed to assist the economically disadvantaged spouse for a fixed period of time while he or she seeks education or training to increase earning capacity), alimony in futuro (long-term alimony awarded only upon a finding that an economically disadvantaged spouse is not capable of rehabilitation), transitional alimony (designed to assist an economically disadvantaged spouse with financial adjustments necessary incident to the divorce), and alimony in solido (lump sum alimony frequently is awarded for attorney fees or to effectuate an equitable division of the marital estate). The statute provides a list of factors that must be considered in awarding alimony, as follows:
- The relative earning capacity, obligations, needs and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
- The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earnings capacity to a reasonable level;
- The duration of the marriage;
- The age and mental condition of each party;
- The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
- The extent to which it would be undesirable for a party to seek employment outside the home, because such party will be custodian of a minor child of the marriage;
- The separate assets of each party, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property, as defined in § 36-4-121;
- The standard of living of the parties established during the marriage;
- The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
- The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Of the above-mentioned factors, the most important factors are the need of the economically disadvantaged spouse and the other spouse’s ability to pay.
BMJRG also represents clients in connection with requests to modify previous alimony awards. After alimony is awarded the order or decree remains in the court’s jurisdiction and control and, upon application of either party, the court may award an increase or decrease or other modification of the award based upon a showing of a substantial and material change of circumstances; provided that the type of alimony previously awarded is subject to modification by the court based on the type of alimony awarded, the terms of the court’s decree or the terms of the parties’ marital dissolution agreement. See Tenn. Code Ann. § 36-5-121. As previously discussed, there are four types of alimony in Tennessee, namely, transitional alimony, rehabilitative alimony, alimony in solido and alimony in futuro. A final award of alimony in solido is not modifiable except by agreement of the parties only. Under appropriate circumstances, the other types of alimony are subject to modification. The party seeking to modify the previous award of alimony has the burden of proving that a substantial and material change of circumstances exists to warrant a modification of alimony.
Administrative law includes a wide range of proceedings before various governmental bodies. Black McLaren Jones Ryland & Griffee, P.C. represents the interests of businesses and individuals before regulatory bodies, and represents small businesses in proceedings concerning status as disadvantaged business enterprises, minority business enterprises or women business enterprises.
Provision for the care of your children is the most important issue in any divorce proceeding. In Tennessee, the trial court must enter a Permanent Parenting Plan Order, whether by agreement of the parties or by judgment of the court after a hearing. See Tenn. Code Ann. § 36-6-404. A copy of the form required can be found at http://www.tncourts.gov/programs/parenting-plan/forms . The terms “sole custody,” “joint custody,” and “standard visitation” are obsolete. Instead, one parent will be designated as the Primary Residential Parent (“PRP”) and the other parent will be designated as the Alternate Residential Parent (“ARP”). The parenting time (not “visitation”) to be granted to each parent is set out with specificity in the plan. This may be structured in a number of ways, including an arrangement with the parents having equal parenting time.
In making decisions relating to parenting time, the children’s best interests are paramount. Tenn. Code Ann. § 36-6-106 sets forth the factors to be considered, as follows:
- The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
- Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
- Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
- The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
- The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
- The love, affection and emotional ties existing between each parent and the child;
- The emotional needs and developmental level of the child;
- The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
- The child’s interaction and interrelationships with siblings, other relatives, step-relatives and mentors, as well as the child’s involvement with the child’s physical surroundings, school or other significant activities;
- The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
- Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
- The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
- The reasonable preference of the child if 12 years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
- Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
- Any other factors deemed relevant by the court.
Once entered by a court, a Permanent Parenting Plan Order may be modified at any time during a child’s minority based on a showing of a substantial and material change in circumstances. Tennessee law does not provide a bright-line definition for what constitutes a “substantial and material change in circumstance,” but gives great deference to the trial court’s judgment on whether the facts warrant a change in the parenting schedule or designation of primary residential parent.
One of the primary purposes of the Child Support Guidelines is to ensure that when parents live separately, the economic impact on the child is minimized. Tennessee’s Child Support Guidelines, which can be found at http://www.state.tn.us/sos/rules/1240/1240-02/1240-02-04.pdf . Take into account many factors including, but not necessarily limited to, the number of days of parenting time each parent exercises with the child, each parent’s gross monthly income, the cost for any work-related child care, the cost of the child’s health insurance premium, the number of children for whom the parent is paying support and extraordinary expenses for the child, such as educational or medical expenses. Child support is calculated using a child support calculator that can be downloaded at http://tn.gov/humanserv/is/incomeshares.shtml .
Parenting Education Seminar – In Tennessee, all divorcing couples are required to attend a parenting education seminar. This seminar is designed to assist parents in helping their child cope with the issues surrounding divorce. A list of the seminar locations approved by the Shelby County, Tennessee courts can be found at http://www.shelbycountytn.gov/DocumentCenter/Home/View/4735 . In Fayette and Tipton Counties, additional seminar locations have been approved.
Property Distribution– Tennessee is a “dual property” state because its laws recognize both “marital property” and “separate property”. In a divorce action, the “marital property” must be equitably divided between the parties, without regard to either party’s fault. “Separate property” is not part of the marital estate and is not subject to division between the parties. Rather, separate property remains the property of the spouse who owns it. In a divorce action, the court must identify all of the assets owned by the divorcing parties and classify the assets as either marital or separate so that a proper division of the marital assets can be accomplished.
The definitions of “marital property” and “separate property” are set forth in Tenn. Code Ann. § 36-4-121. Tenn. Code Ann. § 36-4-121(b)(1) defines “marital property” in pertinent part as follows:
(A) “Marital property” means 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, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of the date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering an order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of the date as near as possible to the date of entry of the order finally dividing the marital property.
(B) “Marital property” includes 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 benefits relating to employment that accrued during the period of the marriage.
(C) “Marital property” 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.
In contrast, Tenn. Code Ann. § 36-4-121(b)(2) defines “separate property” as follows:
(A) All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986, compiled in 26 U.S.C., as amended;
(B) Property acquired in exchange for property acquired before the marriage;
(C) Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or descent;
(E) Pain and suffering awards, victim of crime compensation awards, future medical expenses and future lost wages; and
(F) Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
After identifying and valuing the assets that represent “marital property,” the court in any action for divorce or legal separation must equitably distribute the marital property between the parties. An equitable distribution of the marital property does not necessarily mean an equal division. In equitably distributing the marital property the court is required to consider the following factors:
- 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 and intangible contribution of one 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 (defined as wasteful expenditures which reduce the marital property available for equitable distributions and which are made for a purpose contrary to the marriage either before or after a complaint for divorce or legal separation has been filed) 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, cost associated with a 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;
- Such other factors as are necessary to consider the equities between the parties.
- These statutory factors are set forth in Tenn. Code Ann. § 36-4-121(c).
Once child support is set, it may be modified based on a significant variance (generally defined under Tennessee law as a 15 percent variance in the child support amount). A significant variance may be the result of many factors including, but not necessarily limited to, a change in the parenting schedule, an increase or decrease in income, a child attaining the age of majority, or the birth of a child.
After a court has issued an order or decree, the court retains jurisdiction to enforce the terms of its order or decree. If a party fails to abide by the terms of an order or decree, the other party can petition the court to enforce the order or decree. These petitions usually include a request for the court to find the offending party in contempt of court. These enforcement actions can involve such matters as parenting time, parental rights, the failure to pay child support, the failure to pay alimony, the failure to divide assets or pay debts as ordered by the court and the failure to adhere to injunctions and/or orders of protection. BMJRG represents clients who need to file enforcement/contempt actions and also defends clients who have had enforcement/contempt actions filed against them.
Tenn. Code Ann. § 36-6-306 provides for visitation rights for grandparents. A grandparent may seek visitation with his or her grandchild under this statute if a parent denies the grandparent visitation and:
- The father or mother of an unmarried minor child is deceased;
- The child’s father or mother are divorced, legally separated, or were never married to each other;
- The child’s father or mother has been missing for not less than six months;
- The court of another state has ordered grandparent visitation;
- The child resided in the home of the grandparent for a period of 12 months or more and was subsequently removed from the home by the parent or parents (this grandparent-grandchild relationship establishes a rebuttable presumption that denial of visitation may result in irreparable harm to the child); or
- The child and the grandparent maintained a significant existing relationship for a period of 12 months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.
Once established that the grandparent has the right to seek visitation under the statute, then a court must consider whether:
(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.
BMJRG represents both parents who wish to preserve their rights to make decisions about their children and grandparents who wish to ensure that familial bonds are maintained.
BMJRG also represents clients in Juvenile Court matters. These matters include, but are not limited to, the following:
- Dependency and neglect actions involving children
- Child custody and parenting time/permanent parenting plans
- Child support including establishing initial child support orders, modifying child support orders and enforcing child support orders
- Termination of parental rights
- Establishing parentage/paternity which usually includes blood testing and DNA analysis
- Non-parent care giver custody and support actions other parent and seeking court approval if the parents cannot reach an agreement.
Mediation is a non-binding form of dispute resolution and is required of all couples divorcing in the state of Tennessee, unless specifically waived by the court on a showing of good cause. By working with a mediator and your attorney, you and your spouse have a unique opportunity to craft the terms of your own agreement, rather than having a judge who, however wise, does not know you and does not know your family, but will make decisions that will impact you for many years to come. At BMJRG we have attorneys who have completed significant training in mediation and are listed to serve as mediators pursuant to Rule 31 of the Tennessee Supreme Court rules. Moreover, we have attorneys who have advised parties in hundreds of mediations to work to settle their cases on their own terms within the limits of the law.
An order of protection is an order entered by the court to protect a party from abuse, threats of abuse, stalking and sexual assault. The order of protection statute defines “abuse” to mean inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, malicious damage to the personal property of the abused party, including inflicting or attempting to inflict, physical injury on any animal owned, possessed, leased, kept or held by an adult or minor or placing an adult or minor in fear of physical harm to any animal owned, possessed, leased, kept or held by the adult or minor. If an order of protection is granted to an individual the order also may extend protection to the individual’s children under certain circumstances. If a person violates an order of protection then the police are authorized to arrest the violating party without a warrant. The violating party also can be held in contempt of court and punished accordingly.
Under Tennessee’s domestic abuse statute, Tenn. Code Ann. § 36-3-601 et seq., you are entitled to seek an order of protection from the appropriate court if you have suffered abuse or threats of abuse by any of the following individuals:
- Your current or former spouse
- An individual that you live with or have lived with in the past
- An individual that you have dated or have dated in the past or with whom you have had a sexual relationship
- An individual that you are related to by blood or adoption
- An individual who is related or formerly related to you by marriage
- An individual who is an adult or minor child of a person in a relationship that is described in subsection (A)-(E) above
- A victim of stalking or sexual assault is entitled to an order of protection regardless of the relationship with the perpetrator.
An order of protection is obtained by filing a petition with the appropriate court in the county where the abuser resides or in the county in which the domestic abuse, stalking or sexual assault occurred. If the abuser is not a resident of Tennessee, the petition may be filed in the county where the petitioner resides.
BMJRG assists clients in obtaining orders of protection. BMJRG also represents clients who have had a petition for an order of protection filed against them. Additional information about domestic violence can be found at http://www.familysafetycenter.org/ and http://www.tndagc.org/dv.htm .
Parenting schedules may be complicated when one parent seeks to move more than fifty miles from his or her current home, such that the parenting schedule no longer is feasible. Tenn. Code Ann. § 36-6-108 governs parental relocation and the process that must be followed in providing notice to the other parent and seeking court approval if the parents cannot reach an agreement.
Prior to marriage, many people desire to enter into agreements that address each person’s rights and responsibilities, including those relative to support and property, following the marriage and upon divorce or the death of one party. BMJRG assists parties in crafting agreements that are fair and binding.
A reconciliation agreement is an agreement entered into by two estranged married persons to determine each party’s rights and responsibilities should reconciliation efforts fail. These agreements may serve to fulfill the requirements of a Marital Dissolution Agreement in the event reconciliation is not successful.
Upon request by the female party to the action, the court generally will restore her maiden or former name, provided that she makes the request in pleadings filed with the court and confirms under oath that she is not seeking to change her name for the purpose of:
- Evading creditors;
- Evading criminal prosecution;
- Circumventing the no-fly list;
- Any other criminal purpose.
A name change can be accomplished in an action for divorce or legal separation or an independent action. However, some courts decline to restore a woman’s maiden or former name when the parties have minor children.
- Gestational Surrogacy
- Egg Donation
- Sperm Donation
- Embryo Donation
- Pre-Birth Orders/Orders of Parentage
- Adoption for Unrelated Genetic Intended Parent