If you are considering ending your marriage, it’s important to know what options are available to you. The state of Tennessee permits unhappily married couples to legally separate as an alternative to getting a divorce. This can be a preferable option for when the couple is unsure if they want to proceed with a divorce.
In this guide, we’ll highlight the differences between legal separation and divorce in Tennessee and the circumstances in which legal separation may be the preferable choice.
What Is Divorce?
Divorce is the legal process couples undergo when they want to terminate their marriage. It begins when one spouse files a motion known as a request or complaint with the court.
Couples then negotiate the terms of the divorce to see if they can come to an agreement without going to trial. If they are unable to settle on the details through negotiating, the case will proceed to court where the judge will decide how to equitably divide, distribute, or assign all marital property between the spouses. Taking a divorce case to court can be a costly process so it is often in the couple’s best interest to reach a separation agreement before a trial.
Important decisions you’ll need to make when getting a divorce include:
- How you want to divide your marital property and debts.
- How to handle child custody, visitation, and child support.
- The terms of alimony if one spouse will need financial support from the other.
At the end of the divorce process, the judge will officially terminate the marriage. This means each spouse will be legally free to enter into other relationships and remarry.
Legal Separation In Tennessee
A legal separation is similar to a divorce in that the couple will still need to decide the same issues related to division of assets, child custody, and alimony. At the end of the process, both spouses are entitled to live separate lives from each other however are still considered legally married. This means that neither will be able to remarry unless they proceed with a divorce.
In Tennessee, the process for legal separation is very similar to that of divorce. One important difference is that both spouses must want a legal separation for the court to grant the request.
With a divorce, one spouse can file for divorce without the agreement of the other. As long as they meet the state’s requirements, the court must proceed with terminating the marriage.
The legal separation process begins when either spouse files a petition with the court. At least one spouse must meet the state’s residency requirement (being a Tennessee resident for at least 6 months before filing).
The filing spouse must provide the court with the grounds (legal reason) for the request. Tennessee is a mixed divorce state, meaning that you don’t have to provide a specific reason why you want to end the relationship. The grounds for legal separation are the same as for divorce.
There are no-fault grounds including irreconcilable differences or living separate and apart for two years without cohabitation when there are no minor children. There are also fault grounds including adultery, desertion, assault, inhumane treatment, drug use, impotence, or verbal abuse.
Tennessee has a mandatory waiting period before the judge can act on your case. The waiting period is 90 days if you have minor children, 60 days if you do not. During this period, you should negotiate the terms of your legal separation. This includes determining the best parenting plan for the family, how to divide marital assets and debt, and how to handle spousal support. If the couple are unable to come to an agreement, the court will resolve any unsettled disputes after the waiting period expires.
After the court finalizes the legal separation, the court will provide a legally-binding contract known as a separation agreement. It will include essential information related to the separation such as how to handle custody, property, and support issues.
Once everything is complete, both spouses are free to enter new relationships (not remarriage), create contracts as individuals, and more or less live as though they are single. If the couple reconcile their differences during their legal separation, they can ask the court to vacate the order.
If they decide that they want to end the marriage for good, the couple can ask the court to convert the separation order into a divorce after two years.
Why Choose Legal Separation Over Divorce
While no one gets married with the intention of planning for a divorce, sometimes relationships just don’t work out. In these situations, there will come a time when you need to discuss ending your marriage with your spouse.
If you’re uncertain you want to file for divorce, you can consider filing for a legal separation. As it is not permanent and does not officially end the marriage, it will give you time and space to weigh your options and see if a divorce is the best choice to make.
Here are some of the common reasons couples choose legal separation:
- Using separation to preserve a stable family life for children.
- Preserving valuable tax or other benefits such as healthcare that would be terminated with a divorce.
- For military spouses, legal separation may ensure payment of your spouse’s military pension.
- Some couples cannot divorce due to religious reasons, so legal separation is their only option.
Reasons To Choose Divorce Over Legal Separation
While a legal separation is a preferred option in some situations, there are other times when going through with a divorce is a better choice. This includes:
- When you want to remarry: Because a legal separation doesn’t actually terminate your marriage, you are still legally married to your spouse. This means you are unable to remarry as the state doesn’t allow you to be married to two people at once. If you plan on remarrying, you must first get a divorce.
- When you want to be free of your spouse’s debt: Because you are still legally married, you could still be liable for your spouse’s debts or legal problems such as bankruptcy or personal injury lawsuits.
If you’re unsure that a formal separation or divorce is the right choice for you and your family, you can participate in a trial separation where you and your spouse simply live apart and reassess your marriage. During the trial separation, you can orally agree on the terms of custody, visitation, and support. You can also choose to put the terms in writing if you want a more formal agreement.
It’s important to be aware that the court doesn’t authorize or monitor trial separations. This means that if either spouse violates the terms of the trial separation the only recourse available is to file for a legal separation or divorce.
If you’re considering divorce or legal separation, it’s important to have a knowledgeable family law attorney on your side. Attorney Hunter Fowler has the experience and knowledge to provide the best legal counsel possible and help you navigate the complicated divorce and legal separation processes. He will fight for your rights and help you keep what is most important to you safe.