Tennessee Legal Separation: An Overview
Legal separation in Tennessee is particularly misunderstood. Most people think that they are legally separated if they have filed a divorce action but the case is still pending. In fact, that is not correct. The only way a couple (married by a person authorized to do so under Tennessee law) can become legally separated in Tennessee is by signing a written agreement or petitioning the court for an order of legal separation or by a final decree of divorce as a result of litigation. Until that time, the parties live under Tennessee law as a married couple even though they may live in separate homes. A divorce does not become final until 60 days after the judge signs the final decree in most cases – The Exception is in cases where there is domestic violence, somebody has a drug issue, has been locked up for a long time or a few other limited situations. If a divorce is finalized within 60 days of the complaint being filed, the parties will not be legally separated and will become legally separated once the final decree is signed at that time.
In Tennessee , an amicable divorce is still referred to as a divorce, not legal separation. A legal separation occurs when the spouses sign a written agreement to remain apart. A legal separation is usually temporary in nature, and is intended to provide the couple with some time apart while they work on their issues. These agreements are often drafted by the spouses, sometimes with the help of a mediator or lawyer. Just like with a divorce, terms of a legal separation agreement may include guidelines for custody of the children, visitation, child support and alimony. A separation agreement is binding on the parties. This does not mean that the agreement cannot be changed down the road if both parties agree to the change. The most common reason we hear for doing a legal separation is for medical coverage benefits for one of the spouses. In this case, it’s usually the wife that needs to retain the health insurance coverage through a husband’s employment.
Who is Eligible for Legal Separation?
Before you can file for legal separation in Tennessee, it is essential to ensure that you meet the eligibility criteria. The state of Tennessee requires certain criteria to be met before a legal separation is granted. The primary criteria is that one or both spouses must have resided in the state for at least six months immediately preceding the separation. Additionally, prior to filing a petition for legal separation, the couple must have lived in separate residences for at least two months. While living apart, there are no restrictions on how you and your spouse maintain financial ties or support. In fact, a legal separation often helps to sort out matters in a way that can prevent further conflict before the couple decides to move forward with a divorce or reconciliation. If you have children from the marriage, you may also be required to demonstrate that there has been a period of at least four months since the offending behavior began before filing for legal separation. Offending behavior can include adultery, abandonment, domestic abuse, and more. You will also need to file your petition with the correct court, which is dependent on where you and your spouse currently live. You need to file in the Circuit, Chancery or County Court where the spouse resides. The petition must be signed by both spouses, or if only you file, you must sign a waiver of process for the spouse. Legal separation is intended to provide a period of time for couples to determine whether they can reconcile their differences sufficiently to get back together, while providing legal protection and documentation for your rights.
How to File for Separation
The precise step-by-step process to file for legal separation in Tennessee may vary by county. In my jurisdiction, which is Knox County, this is what must be done.
- Go to the General Sessions Court Clerk’s Office and file a Complaint for Legal Separation. There is no fee payment, but you must give the County his $11.00 in fees (technically that goes to Nashville).
- Next you submit an Ex Parte Temporary Restraining Order and Order of Reference. This restraining order would serve to protect from the other spouse selling real estate, getting rid of personal property or incurring debt; it is similar to an injunction for temporary relief in a divorce case. This restraining order does not apply to continuing expenses such as medical expenses.
- Next you submit a Marital Dissolution Agreement. Here is a link to a form marital dissolution agreement found on the Tennessee Administrative Office of the Courts website. It has the necessary provisions to follow the requirements of the majority of the circuit courts in Tennessee.
- If there are children, you will have to fill out a Child Support Worksheet. Instructions for this form are found here.
- Finally, there is a Proposed Final Decree, to be signed by the judge and entered into the Court Records. The proposed final decree is set out on a different form. Here is a link to that form. A form for waiver of the execution of bond is also included in the packet.
Form 14 Child Support Worksheet
I should point out that if alimony is being requested, then you must give the Court Form 14 Child Support Worksheet, and a guideline income statement.
Typically you would give the Court the entire packet, and ask the judge to hear the motion when he has time. Or you can ask a motion date when filing the proposed decree with the Court Clerk.
A legal separation may accomplish many goals, such as custody of the children being placed with one parent, property division, or financial relief, while still leaving the door open for Divorce sometime in the future.
What is Required for Legal Separation Agreements?
In Tennessee, a legal separation requires that the spouses approve and sign a separation agreement during the proceeding. If the spouses agree on all matters, they can submit their separation agreement to the court for approval in the divorce.
The separation agreement should include all issues of property division, such as the division of bank accounts and the disposition of marital home and other real estate, like investment property. The agreement should also address whether one spouse will receive alimony or spousal support. It should also address all issues regarding minor children, including child custody, child support, and who will claim tax exemptions for the children. If the spouses cannot agree on particular issues, regardless of the nature of the issues, they can ask the court to decide the contested issues. A judge will review the case and make the decisions as required to decide the case. If the spouses have children, they should also draft a permanent parenting plan which clearly outlines the time-sharing (visitation) schedule for when the children will spend time with each parent. The permanent parenting plan should retain a decision-making structure and also address the decision making and roles for each parent or family member.
The Role of Separation Agreements
Legal separation in Tennessee does not have any legal significance. You can be informally separated from someone for years and years, even for decades, without having any impact on legal rights as a result of that separation. After all, you can informally live in the same home if you like and do nothing to separate financially from your spouse; there are no legal impacts. Practically speaking, many couples do not want to legally separate because they would rather have a divorce done. The law attributes no real meaning to legal separation at all in Tennessee. A couple may either proceed with a divorce filing or a legal separation filing in court.
If a couple files for legal separation that is fine, but also keep in mind that they are still married and will have to address marital issues like divorce. Practically speaking, very few people desire to be separated. The reality is legally separated spouses are still married and cannot marry someone else without legal grounds for divorce. This is very confusing for many people.
Practically speaking, if the couple files for a divorce or legal separation, there can be positive financial impacts, such as being entitled to file for Head-of-Household Filing Status. Filing taxes as Married Filing Jointly allows a couple to get a tax refund where a married person may not qualify for one if they are divorced at filing time .
Typically, before proceeding with such filings, couples will have to deal with alimony, dividing assets, dividing debts, parenting time, and child support issues. There are a number of different options for a couple to divide their property and debts. In most cases, it’s a fraction of the whole marital estate with each party obtaining half of the total value. This is especially true for assets that were acquired during marriage. There are also assets that were acquired before marriage or after separation that are separate property. The general rule of thumb for separate property is that it is not commonly divided amongst the parties, and is pre-marital and often inherited.
The couple also has the option of entering a marital dissolution agreement while legally separated. A marital dissolution agreement is not unlike a contract entered into in business. It is really a fancy name for the agreement that parties sign to address the issues in the case (alimony and support, debt division, division of real property, custody, and visitation). It is important that the parties understand that the dissolution agreement is essentially a contract between the parties that binds them for all times. A marital dissolution agreement is deemed a contract as a matter of law, so all of your rights are signed away in that document. Read these agreements. Take time to try to understand them. Always consult an attorney if you do not understand something.
Changing or Ending Legal Separation
Filing a motion: If the parties agree, a petition must be filed in court to modify or terminate a legal separation. The court will only order modification or termination if it was done in the best interest of the family and meets all requirements under state law.
Termination due to reconciliation: Upon reconciliation, the legal separation will convert to divorce. Forms are available to file with the court, which will also include the terms of the divorce, as both parties should agree on the divorce terms to make the process easier.
Filing a petition for divorce: Unlike a legal separation, Tennessee provides no waiting period for filing a petition to convert a legal separation to a divorce. Certain factors such as the raising of children, where they were raised, knowledge of Tennessee law and the marriage license can determine if the person qualifies for legal separation.
Obtaining Legal Counsel
Determining whether to legally separate from your spouse is a significant step, and it’s one that should be made with careful consideration. Once you make that decision, you’ll need to decide how best to move forward with establishing legal separation in Tennessee. The best thing to do is to seek help from a qualified Nashville legal separation attorney who is experienced in helping clients in your particular family law circumstances. A family law attorney will be able to answer any questions you may have concerning legal separation, divorce, annulment, child custody, child support, visitation, mediation, equitable division of debts and assets and spousal support, as well as any other issues concerning your case. An experienced family law attorney will be able to guide you through this difficult time and help you to identify the best course of action for you and your family. Choosing an attorney to represent you can oftentimes seem like an overwhelming process. You may not know what you should look for in an attorney. Oftentimes , a good place to start is with someone that you trust—perhaps a friend or a family member who can refer you to a trusted attorney. But it’s also important to remember that you’ll be working with your attorney throughout the case, so spend some time doing research on an attorney’s credentials, areas of expertise and track record with past clients. Although you may be under a large amount of stress when you’re trying to find an attorney to represent you, this decision is an important one that shouldn’t be made in haste. Take your time and talk to a few different attorneys about your case before deciding on one to represent you. It’s always preferable if you get along with your attorney as you’ll be working together to help you resolve your legal situation.