Nearly anyone entering into divorce has questions.  Hopefully this will answer some of them.  Please read this all before asking anything.  If the answer to your question was in here, you got the answer for free.  If you have to ask me, it will be billable time, with at least one tenth of an hour billed at my regular billable rate, even if the question and answer take only 30 seconds of my time.  If there are minor children involved, then please also read the link on the Parenting Planning now required of any Tennessee divorce with minor children.

        But do talk with me before taking any serious steps based on what you read here -- this advice is general and may not be appropriate for your specific situation.  Also take note that I practice only in Tennessee, and everything here is tailored to Tennessee law, meaning it may not apply to the law of another state.

        Before anything else, stop to think if there is anything you can do to AVOID divorce.  Try a marriage counselor.  Try your minister.  Sit down with your spouse and face the problems without blame and find solutions.  Work fewer hours.  Work more hours.  Talk more.  Talk less.  Stop drinking.  Stop using drugs.  Learn to tolerate your spouse's drinking or drug use.  Start going to church.  Stop demanding that your spouse go to church.  Change jobs.  Quit your job.  GET a job.  Stop running around with someone else.  Agree to move.  Forgive your spouse.  Whatever.  You made a commitment of "forever" when you got married, and if there are children you need to keep in mind that they are your responsibility, not only legally and morally, but also as a very real and practical matter.  No matter how common divorce might be, children of divorced parents are at a very real disadvantage.  For results of serious studies looking at the effect divorce has on children, click here.  For actual guidance in making a sincere effort to avoid a divorce, click here for information on the Marriage Savers Movement.

        If you are definitely going to divorce, and you're both reasonable, you might be better off to start out by going to a mediator, a trained professional who would attempt to help the two of you reach agreement on the points you would otherwise have to ask a judge to decide.  Mediation is quicker, allows you more input, is less stressful, and generally results in less bitterness than a divorce with all issues argued before a judge.
 

TYPES OF DIVORCE:
        Tennessee has two different types of divorce: Irreconcilable Differences and fault based.  The effect is the same in each case, but the way of getting there is a little different.
 

IRRECONCILABLE DIFFERENCES --
        An Irreconcilable Differences divorce is one where both of you agree to get a divorce and on every aspect of the divorce -- who pays the debts, how property is divided, who gets custody of the children, the amount of child support, visitation schedule.  You name it.  The two of you have to prepare (or actually have your attorney prepare) and sign a Marital Dissolution Agreement which makes adequately provides for any children of the marriage and which fairly divides any property and debts.  In an Irreconcilable Differences divorce neither of you have to be found "at fault" in the divorce and you only need to say differences have arisen which you cannot resolve and the differences prevent you from living together as husband and wife.  An Irreconcilable Differences divorce is always uncontested -- if your spouse won't agree to a divorce or on every aspect of the Marital Dissolution Agreement, then you have no choice but to prove fault.  Uncontested divorces are not always Irreconcilable Differences divorces; "uncontested" simply means that the other side is not opposing things -- it does not mean anything more.

        If there are children and if you are in one of Tennessee's six most populated counties (which includes Hamilton County),  you also must take a required parenting class and prepare a formal "parenting plan" before the Court will grant the divorce.  The parenting plan is very detailed, and you must address the issues presented in the model plan, even if not using all of the language offered in the model form.
 

FAULT --
        Fault based divorce can be either contested or uncontested.  An uncontested fault based divorce can actually be easier and quicker than an Irreconcilable Differences divorce.  This is because if the fault based divorce is actually uncontested and the other side files no answer, you don't even have to talk with them, but can simply tell the court what you want and generally get it -- if your spouse has not contested the divorce, you don't even have to let them say anything to the court

        But you still have to prove the grounds.  The grounds are:

           Abandonment by either party for no just cause and refusing or neglecting to provide for
                    the spouse while having the ability to provide
           Adultery (only if you have not slept with your spouse again after learning of the adultery)
           Alcoholism or drug abuse that has gotten worse since the time of the marriage
           Attempting to murder the other
           Bigamy
           Criminal conviction (of a felony -- an offense that can be sentenced by a year in prison)
           Cruel and inhuman treatment toward the spouse such as renders it unsafe and improper
                    for the parties to live together (this is the most common ground for divorce and is
                    often referred to as "inappropriate marital conduct"), this is fairly loosely defined and
                    can even simply be cursing or arguing with a spouse
           Desertion for one full year without reasonable cause
           Impotence or sterility or frigidity, but only if this condition existed at the time of the
                    marriage and continues unchanged
           Indignities — the "husband or wife has offered such indignities to the spouse's person as
                    to render the spouse's condition intolerable", which generally means trying to get the
                    spouse to take part in sexually deviant acts (some of the judges will actually ask for
                    the details)
           Living separate and apart for two full years immediately before filing for divorce, and there
                    are no children, and you have not had sex with each other during that time
           Pregnancy of the wife at the time of the marriage when the wife is pregnant by another man
                    and the husband did not know this at the time of the marriage
           Refusal to move to Tennessee from another state to join a spouse here in Tennessee
                    without reasonable cause, and staying away for two or more years

        (The actual statutes involved are found at T.C.A. 36-4-101 and T.C.A. 36-4-102.)

        Unless you and your spouse can agree on all terms of the divorce and, you must include actual grounds before you file.  If you can't prove the grounds you claim, the accusation may end up giving your spouse grounds for the divorce from you.  (Which one of you gets the divorce can make a difference in division of assets, and only the party awarded the divorce can get alimony).  Until the divorce is final, don't do anything to give your spouse grounds for divorce (like seeing someone else), because it may well end up used against you.

        Witnesses -- If you are getting a divorce based on fault (in other words any divorce without a Marital Dissolution Agreement or without each of you stipulating that there are grounds for the divorce to be granted without a finding of who was at fault), you must bring a witness with you to testify about the fault of your spouse

        Defenses to the grounds for divorce include: that the other spouse's conduct justified the bad behavior; or that the other spouse either condoned the conduct by taking the spouse back (this generally applies to divorces based on adultery — take a cheating spouse back into your bed and have sex with them after you know of their adultery, and you can't use that prior adultery to get a divorce, though you can use any later adultery, or any other prior adultery you did not know of when you took them back); or what the courts call connivance, in other words that the spouse bringing the complaint has done the same thing or that the spouse bringing the complaint actually caused or contributed to the improper behavior being offered as grounds for divorce (a husband serving as a pimp for his prostitute wife can't expect to get a divorce on the grounds of adultery, and someone introducing their spouse to drugs will have trouble getting a divorce on the grounds that the use is continuing).

        But most local judges will grant a divorce even if there are NO grounds, and even if the spouse who did not file does not want a divorce.  They pretty much believe that if one of you wants out badly enough to file for divorce and to pursue it to a hearing before a judge, then the marriage is beyond saving anyway. Click here for more.
 

STIPULATED GROUNDS --
        Tennessee also allows the parties to "stipulate" that grounds exist, without presenting evidence and without agreeing to anything else in the divorce, so long as both of you agree that grounds exist, you can avoid pointing fingers at each other in court and focus the trial on the remaining issues: assets, debts and children.
 

 LEGAL SEPARATION
        This seldom makes sense, unless you both agree to all aspects of it.  Going to court to fight to have the court to put a stamp of approval on your separation almost always ends up in a divorce, anyway, meaning you pay for two lawsuits instead of just one.  And you're still married during the period of separation, meaning you can't date.  IF you agree to everything, however, there are times when it is advisable, but they are very few and far between.  (For more on legal separation, click here.)
 

 ANNULMENT
        An annulment essentially undoes the marriage as if it never happened.  You can say you never were married.  It doesn't count.

        It is also hard to qualify for an annulment.  Generally speaking annulment is only proper when there has been a very brief marriage and judges generally will only grant an annulment if the marriage has not been consummated (no sex between the parties after the wedding).  Annulment is proper when there never was a valid marriage in the first place, and the common grounds for this are as follows:

  1) One (or both) of the parties was too young to consent.
  2) One (or both) of the parties was mentally incompetent at the time of the marriage and therefore unable to agree to the marriage.
  3) One (or both) of the parties was already married at the time of the second marriage.
  4) One (or both) of the parties made a mistake as to whom they were marrying (say the marriage ceremony is a costume ball and someone is standing in for the bride or groom).
        (For more on annulment click here.)

 RESIDENCY
        Generally speaking you must have lived in Tennessee for six months immediately before filing for divorce here.  The exception is if the acts relied upon for the divorce occurred here -- then it's not even required that you be a resident of Tennessee.  (An example would be a couple living outside of Tennessee and while passing through the state, the husband picks up a couple of hookers, robs a bank and beats his wife... then they drive back to Utah where they live.  She could file for divorce here.)  But once the residency requirement is met when the complaint for divorce is filed, there is no need to remain in Tennessee until the divorce is final — you can move anywhere without effecting the timetable to get the final decree (except as might be needed in order to schedule your return for any hearing).
 

 DIVISION OF PROPERTY/DEBTS
        Tennessee requires that the court handling a divorce divide all assets and debts equitably — in other words fairly, looking at  the following factors: length of the marriage; age, physical condition, separate assets, and earning potential of each spouse; contribution each made to the accumulation or preservation of assets (and the contribution of homemaker is to be given the same weight as the contribution of wage earner if each party fulfilled his or her role); contribution each made to the earnings potential of the other (such as putting him or her through school); the financial condition of each party at the time the decree becomes final; tax consequences; what each party had at the time of the marriage; any other factor the court considers fair.

        Separate property, acquired by inheritance or before the marriage, generally is not divided... but under rare circumstances it can be.

        Debts are divided much the same way, with the court looking at the following factors: who incurred the debt; the purpose for which the debt was incurred; which party benefited from the debt; which party is in the best position to pay the debt; how the assets are divided.  For the full list of factors set out by statute at T.C.A. 36-4-121, for a more complete discussion of the issues in property division, click here.

        Take note that who was at fault in the divorce makes no difference in how the property or debts are divided.
 

 ALIMONY
        Tennessee courts seldom award alimony today, but under the proper circumstances they will award alimony to either party -- yes husbands can get alimony.

        The party seeking alimony must generally show a lengthy marriage, that they would be unable to support themselves, that the other party can support them, and that the reason they can't support themselves is that they stayed home and took care of the house or the kids while the husband/wife was out acquiring the skills or work history allowing them to earn a significant income.  Even then the court must generally be convinced that while there is little in the way of marital property to divide (giving the bulk to the spouse with limited earning potential) the party who would have to pay the alimony has significant earnings potential.  A court can look at most of the same factors considered in dividing the property, but in the case of alimony the court can consider who was at fault in the marriage, as well as who took care of any children of the marriage.

        The court can award either permanent alimony or temporary/rehabilitative alimony, which is generally to help a spouse go back to school or to otherwise help them acquire the skills needed to earn a reasonable income.

        Alimony ends as soon as the party getting it remarries, and courts usually end it as soon if the party getting it begins living with someone of the opposite sex.

        The general tendency of Tennessee courts is to award rehabilitative alimony or a fixed length of time to help a spouse get back on his or her feet, and even then courts award alimony to relatively few parties asking for it.  (For a further discussion of the law on alimony in Tennessee and listing of the factors considered in determining whether or how much alimony to award, click here.)
 

 SERVICE OF PROCESS
        The spouse being sued for divorce must be "served" with the divorce complaint and with a Summons, which tells them they have 30 days to answer the complaint, and also with any Restraining Orders.  This is all called "service of process," and until service is made, nothing further can be done.

        If a person avoids the process server (usually the sheriff's office), service can be made through publication — running a legal notice in the newspaper.  No party to a divorce can serve process on the other.  Neither the husband nor the wife can serve the other, but just about any other adult can make service.
 

 TIME
        The state requires a minimum of 60 days before an Irreconcilable Differences divorce can be granted if there are no children, and 90 days before an Irreconcilable Differences divorce can be granted if there are children.  But these are absolute minimum times, and generally you're looking at an additional week or two just because of scheduling.  It may also be that working out the details of the Marital Dissolution Agreement (the terms of the divorce) with your spouse or your spouse's attorney stretches the time out quite a bit.

        If the divorce is based on fault, with an attorney on the other side, you need to expect a minimum of four months, and if the other side drags its feet, it could easily be a year and a half before a judge hears the divorce.

        If you're asking the court for a divorce based on fault, and your spouse is not going to put up any fight to it, and files no answer with the court within 30 days after being served with the divorce complaint, it's possible to ask the court to go ahead and give you what you've asked for since the other side has failed to respond.  If so, you might be able to get the divorce in as little as 45 days.  In Hamilton County, however, the local judges have decided not to allow any divorce any more quickly than the divorce could be granted under Irreconcilable Differences -- in other words 60 days after filing if no children, and 90 days after filing if there are children.  In other counties, there are ways to have the divorce heard much more quickly, sometimes, with a cooperative judge, it is even possible to have it heard by agreement of the parties within a few days after it is filed.  It is also possible, if the parties both agree, to have a divorce heard in a county other than the one you live in -- Tennessee requires that one of you have live in Tennessee for the six months immediately before divorce is filed, but there is no requirement that it is filed in the county where either of you live.  (The defendant can require that is be filed in the county where he or she lives, but if you can agree on another county, then the other county can hear the case.)

        Once your spouse is properly served with the divorce complaint, he or she has 30 days to respond, and if there is no response, you can file for a "default," in other words ask the judge to go ahead and grant the divorce without your spouse's response, because a defendant should not be allowed to prevent a case from going forward just by refusing to file an answer.  But the spouse who filed for the divorce does not ask the court for a default, the defendant can be allowed several months before the court will do anything on its own; and what most courts do after about a year of inactivity in a case is to notify the attorneys and let them know that if they don't do something to get the case moving within the next 30 days, the case will be dismissed.

        But it's also possible for your spouse to file an answer at the last minute and delay the process.

 DELAYS
        Unfortunately, if your spouse or your spouse's attorney wants to drag things out, the court system is almost always going to allow it.  With aggressive effort to delay things, almost any divorce could be delayed for an absolute minimum of 6 months, and often even a year.  If the other side is not fighting back just as hard to get the case heard it could easily drag out a year and a half or two.

        What causes the delay?  If you can't reach an agreement on the divorce, the case has to case has to be tried, and that means matching up the schedules of two attorneys and also the court... and making certain that there is enough time to have it heard.  If a case is going to take a full day or perhaps even two, then if is going to be hard to get it scheduled.  And you don't even look at scheduling the case for trial until all the discovery process is complete — discovery could take three months, even if no one is trying to delay things (depending on schedules and how complicated the case is), and there are also built in delays in getting the other side served (the Sheriff's office has 30 days to make service, and if service is not made by then, we have to reissue the summons and start over, and then they have 30 days to file an answer, and if they also file a Counter-Complaint then we will also want to answer and may need to take the entire 30 days to do that.
 

 COURT COSTS
        In Hamilton County, the filing fees begin at $124.50, for an Irreconcilable Differences (agreed divorce), and range up to $179.50 if service by publication is needed.  The filing fees must be paid before the case can be filed.  This money goes to the clerk's office, and it is best if you pay it by check made out to the clerk's office for the court handling the divorce.  In the cases I handle that generally means making the check out to the Hamilton County Circuit Court Clerk's Office.  (The Irreconcilable Difference divorce is sometimes called an "uncontested" divorce or an "agreed" divorce, and uses a Marital Dissolution Agreement.)  The court costs will vary some from county to county.  The filing fees may also increase from time to time beyond the amount listed above, which is why you might want to check with the Circuit Court Clerk's office for the filing fee listed in their latest fee schedule.   The Hamilton County Circuit Court Clerk has the fee schedule posted on the internet and you can see it by clicking here.

        If the case is contested, meaning your spouse fights the divorce, then the court costs could easily run up to $250 dollars, but there really is no limit to the court costs bill because the clerks' office adds a charge for each and every piece of paper filed in the case with the clerk, and many things done in the case absolutely require filings with the court.  The court costs also include a charge for each time a summons or subpoena is served in the case.

       A new law that took effect in 1997 as part of a plan to reduce ongoing conflict over custody and visitation in divorces with children may add significant court costs in cases with children, but only in seven of the state's largest counties, including: Hamilton, Davidson (Second Circuit only),  Shelby (Division III only), Knox (Division IV only), Sullivan County,  Rutherford and Cannon.  (For more information on the parenting plan, click here.)

        The increased costs can come from mandatory mediation since the mediation costs, which can run up to $150 an hour, can get added to the court costs bill.  Click here for more on mandatory mediation if there are children and click here for more on those costs.  These costs can come in contested or uncontested cases, and it is impossible to determine how high they will go because it is impossible to know how long it will take a mediator to get you and your spouse to agree on parenting issues.  This makes it all the more important to use a lawyer knowing how to hold the mediation costs down, and perhaps to avoid them entirely.  (Because lawyers generally must sign a costs bond as a surety if the court costs are not paid, and because the mediation and a written parenting plan going along with it both add work for the lawyer handling the divorce, this change in the law is likely to significantly increase the cost of divorce.)

        Beyond the court costs, you will also be responsible for any charges for a court reporter or for any other out-of-pocket expenses.  These are not "court costs", per se, but they are costs of the case which you are responsible for.  (Court reporters generally charge from $40 to $80 a day to appear and then roughly $3.00 a page to produce a transcript of testimony — testimony generally runs about one page per minute of testimony, meaning an hour long deposition would run about $180, and a full day of trial would likely run $1,000 if needed for an appeal, or if you simply want it for your own records.  If your case needs the testimony of a physician or from a counselor or psychologist, you will probably need it by deposition, and will probably need to pay them to sit down to give their testimony as an "expert witness," meaning paying them up to $500 a hour to sit down to testify.)  Click here for more on the overall costs of divorce, and click here for more on how to hold down the costs.
 

 FINALITY
        For the first thirty days after the judge signs a divorce decree, the losing party can appeal, or can ask the court to reconsider.  So for 30 days it's not really final, meaning you should not get remarried right away, since you could end up with bigamy on your hands if the divorce decree gets set aside and you have married someone else.

        But child custody orders or child support orders can be modified until the youngest child is 18.  (Alimony awards can also This is also true regarding alimony, although it is harder to get a change in alimony.)

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