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Tennessee Family Law Q & A
Tennessee follows a "comparative fitness" model in making child custody decisions. To assist judges in deciding which parent is the child's "Primary Residential Parent" ("PRP" - meaning the parent with whom the child spends 50% or more time) and which parent is the "Alternate Residential Parent" ("ARP" - meaning the parent with whom the child spends less than 50% of the time), the Tennessee Legislature has crafted a list of factors found at Tennessee Code Annotated 36-6-106 (click to read the factors).
Irreconcilable Differences - these are issues that you do not agree on and you're never going to agree on, which have an impact on your marriage. This is Tennessee's "non-fault" ground for divorce. All other grounds are fault-based.
Impotency - a party is incapable of procreation
Already Married - a person hasn't yet divorced and has remarried. The second marriage is void.
Adultery - either party has committed adultery
Desertion - a party has deserted the other party without good cause
Felony Conviction - a party has been convicted of a crime that carries one year or more on probation or in prison
Attempted Murder - a party attempts to murder the other party
Refusal to Move to TN - a party refuses to move to Tennessee and such refusal lasts 2 years or longer
Pregnancy by Another - the wife was pregnant by another man at the time of the marriage without the knowledge of the husband
Habitual Drunkenness - a party is habitually drunk or high on drugs, and the party adopted the habit after the marriage
Cruel and Inhuman Treatment - a party is guilty of cruel and inhuman treatment towards the other; also referred to as "inappropriate marital conduct"
Indignities - a party has offered indignities to the other party as to render that party's position intolerable
Refusal to Support/Neglect - a party has turned their spouse "out of doors" and/or has refused to support the spouse despite the ability to do so
2-Year Separation - the parties have lived in two separate residences for at least 2 years
You may. Under Tennessee Code Annotated 36-4-112, people whose spouses are suing them for divorce based upon adultery may defend the action if certain conditions exist in which the complaining spouse agreed to or promoted promiscuous conduct on the part of the other spouse.
The divorcing couples' property, whether real or personal property, will be divided into "Separate Property" and "Marital Property." Generally speaking, all assets you owned before the marriage are your "separate property." You get to keep those. All assets which were obtained during the marriage are "marital property" and those will be subject to and "equitable division" by the Court. "Equitable" does not always mean "equal."
When parents divorce, unless the parties can agree on shared custody of children, at trial, the court will name one parent the Primary Residential Parent and the other parent the Alternate Residential Parent. Under a "standard" parenting plan, the Primary Residential Parent will have the children all the time except every other weekend and, in the week when the children will not come to the Alternate Residential Parent's house for the upcoming weekend, the children will come spend the night (usually on Wednesday night). The Court will also divide holidays and school vacation times among the parents.
In deciding who is Primary Residential Parent and who is the Alternate Residential Parent, Tennessee law requires the Court to look at a number of factors, all of which are geared towards the "best interests of the child." Some of those factors are the emotional ties between each parent and the child; each parent's earning capacity; each parent's ability to provide the children with food, clothing, shelter, and to foster educational needs; the children's interaction with siblings while with each parent; the character of third parties living in each home; each parent's employment schedule; and any other reasonable factor the Judge deems appropriate.
Under Tennessee law, the Judge will take into consideration, among all the other factors indicated above, the reasonable preference of a child 12 years or older. This is not to say that a child age 12 or older gets to "decide who he/she lives with," but the Judge will consider it among all other relevant factors. The Court is also permitted to listen to the preference of a child under 12, but the preference of a child who is 12 or older is usually given more weight.
Under Tennessee law, if a parent wants to move with the children more than 50 miles away from the other parent, the moving parent has to give the other parent at least 60-days' written notice prior to the relocation. If the other parent objects, he/she will have to file a Petition in Opposition to the relocation and ask the Judge to order the party not to move away with the children. The Judge will then conduct a hearing and take several factors into consideration before deciding whether to allow the party to move with the children or not.
In Tennessee, Alternate Residential Parents have the following rights:
- The right to unimpeded telephone calls with the children at least twice per week at reasonable times and for reasonable durations;
- The right to send mail to the children, which the other parent shall not destroy or otherwise interfere with.
- The right to receive notice, at least 24 hours in advance, of any doctor's visit, hospitalization, or illness of the child.
- The right to receive notice, as soon as practicable, of any emergency involving the child.
- The right to receive school records regarding the children directly from the school.
- The right to receive any medical, dental, or other health-related records directly from the child's healthcare providers.
- The right to receive notice of any extracurricular activities such as games, recitals, and the like. If the other parent enrolled the child in such activity, the enrolling parent has to provide at least 48 hours' notice of such activities to the other parent.
- The right to receive notice and an itinerary from the other parent if the other parent is taking the child out of state for more than 48 hours.
- The right to access the child during school lunch and other activities .
- Any other rights the Judge deems appropriate and reasonable.
The short answer is you should at least consider it. And you should definitely do a prenuptial agreement in the following situations: (1) you and/or your spouse-to-be have kids from an earlier marriage and you want to protect their inheritance; (2) one party has a great deal more property than the other party; (3) both parties have significant income or property; or (4) one or both parties are likely to acquire significant property in the future (for example: medical or law students who marry while in school).
If you live in Tennessee, you can get an Order of Protection from your county Circuit Court. These orders can do a lot of things to protect you, including order your abuser not to come around you for any reason at all, not to contact you in any way and for any reason, give you exclusive rights to any shared residence, and required the abuser to pay for the costs associated with obtaining the Order. Also, if the abuser violates the Order, he/she can be arrested and charged with a Class-A misdemeanor, which carries up to 11 months and 29 days in jail, among other punishments.
If the Custodial Parent (aka the "Primary Residential Parent") refuses to comply with the Court's order regarding the visitation rights of the Non-Custodial Parent (aka the "Alternate Residential Parent"), the Alternate Residential Parent may do two things: First, the Alternate Residential Parent may seek to have the Primary Residential Parent held in contempt of court and ordered to make up the lost time, pay the Alternate Residential Parent's attorney's fees and court costs incurred in filing the contempt action, and even serve time in jail. Second, Tennessee parents have a new non-exclusive remedy for noncompliance with a visitation order that is available to both parents. That remedy is the suspension, revocation, or denial of any license held by the non-complying parent, other than a driver's license, which is issued by the State of Tennessee. There is a very specific procedure that has to be followed, but this is a way that Tennessee courts may punish parties who refuse to comply with court orders regarding visitation. The statute which allows this is found at T.C.A. 36-6-502.
Legal separation is appropriate when a party and his/her spouse need to live apart for a while, yet one spouse wants the other to provide financial support. This is used when the parties are "working on" their marriage and have hopes of reconciling in the future, but the disadvantaged spouse needs the Court to step in and order the other spouse to provide financial support during the separation. The grounds for legal separation are the same as those for divorce.
Tennessee follows the doctrine of "equitable distribution of assets." "Equitable" does not necessarily mean "equal." The court will classify all property as either "separate" or "marital" property. "Separate property" is what you owned before you got married. "Marital property" is all property the couple obtained during the marriage. The parties get to keep their "separate property" and the court will divide the "marital property." The court will not "punish" a party who is found to be at fault in the divorce by giving the "innocent" party all of the marital assets. There is a law which prohibits this.
Alimony is a complicated area of law, and there are 4 different kinds of alimony recognized in Tennessee. Those are (1) Alimony in solido (aka "lump sum alimony"); (2) Alimony in futuro (aka "periodic alimony"); (3) Transitional alimony; and (4) Rehabilitative alimony. T.C.A. 36-5-121 is the Tennessee code section dealing with alimony, and you can read it here. Just be aware that alimony can have a dramatic effect on your standard of living, for the better if you're the recipient or for the worse if you're ordered to pay it. Also, "periodic alimony" lasts until the death of either party or the remarriage of the recipient, so it can be a lifelong obligation.
Child custody determinations can get complicated, especially when a parent moves the child to another state. Basically, you have 6 months to file your action in the state where the child lived for 6 months or longer. If you wait for longer than 6 months, then you have to file the action in the state in which the child has lived for 6 months.
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