The Legal Separation Overview in Tennessee: Your Complete Guide
What is a legal separation in Tennessee?
Many people believe that legal separation is a less harsh alternative to divorce. However, legal separation does not terminate the parties’ marriage. Rather, it gives the parties the opportunity to live separately from each other ("separate maintenance") and still be married. If one spouse wants to "stop the clock" on the accumulation of marital property while the other spouse moves out of a marital residence or to address other issues relating to the welfare of the parties’ children, a legal separation is often the best option. It is important to note that a legal separation is not available in Tennessee unless the parties share minor children.
In Tennessee, a legal separation lawsuit must either be filed in the same court as a divorce action or the parties must file an affidavit/certification with the separation complaint stating that the action is being brought primarily to obtain a legal separation. Once the papers are filed and served, the court may grant a legal separation. Unlike a divorce, the parties may not seek an equitable division of property. The primary purpose of the action is to obtain a court order to address spousal support and child custody issues . In the event either party subsequently wishes to convert the legal separation into a divorce action, the conversion can occur without filing a new complaint.
A legal separation does not give a party the ability to remarry. However, the parties would not be prevented from entering into a marital settlement agreement which could contain provisions regarding support, spousal support, division of property and child custody. A marital settlement agreement cannot be enforced by a court unless it is incorporated into a court order, for example, by entry of a permanent parenting plan for custody issues or entering a final judgment for a divorce.
If the parties want to end the marriage later, the steps to convert a legal separation to a divorce are simple. I am often surprised by the number of clients who elect a legal separation rather than a divorce. Quite often such a decision stems from religious beliefs which frown upon divorce.
If you are contemplating filing for divorce in Tennessee, you should discuss whether a legal separation may be a better option for you with your attorney.
How does legal separation work in TN: a guide
The process of filing for legal separation in Tennessee begins similarly to that of a divorce. Necessary forms, such as the petition for separation, must be filed with the circuit court in the county where at least one spouse is a resident. Legal separation is not equivalent to divorce, however. While divorces are dealt with in family court, legal separation is a circuit court matter. Additionally, a married person who is legally separated in Tennessee has not ended their marriage. Because of this, legal separation and divorce are two very different processes. The court, however, does retain the power to compel spousal support payments, divide shared property, and assign child custody, just as in a divorce proceeding. As with divorce proceedings, the court will require a hearing after the necessary forms are filed and served on the appropriate parties.
For individuals who would like to explore legal separation in Tennessee, it’s important to remember this is not automatically approved. Because legal separations do not unwind a marriage, the separation is only granted if the judge believes that the marriage should be continued for benefit of children or finances, even if it’s just for the time being. There are ways that legal separation can be terminated without going through the typical divorce process; this may also be ordered on the basis of the judge’s discretion.
Legal separation rights and responsibilities
Legal rights and obligations are created which will follow the parties into the divorce proceedings. Usually agreements between the parties are reduced to a written contract called a separation agreement. Generally, a Separation Agreement can be either merged with the Final Decree of divorce or held up independent. If the agreement is held up independent, it is enforceable in court by the injured party if violated by the other party. If the agreement is merged into the final decree it is not separately enforceable. Instead, it is presumed to be a court order and must be enforced in the same manner that all court orders are enforced.
During the period of time that the parties are living under a Separation Agreement or court order, neither the court nor any other entity can modify the terms of that agreement or court order. If you want an intervention of the court, you must file a petition for contempt asking the court to intervene and there can be significant sanctions issued by the court for violation of a court order. In addition, it is a cause of action in the future divorce case that the court must consider. The court does not have the ability to modify either child support or alimony orders if they are made under a contract that is held up independent.
The pros and cons of legal separation
In Tennessee, the advantages of a legal separation are not insubstantial for spouses who may wish to reconsolidate their marriage. In many cases, legal separation allows couples an opportunity to pursue a "trial divorce," after which they might reconcile rather than divorce. A legal separation bestows such advantages as continued access to medical benefits, equity in lifetime of benefits, and the ability to receive a spousal benefit under a worker’s employment plan. A good job-linked benefit leads to a more secure retirement after divorce. Another key reason many opt for legal separation is religious. The Catholic Church, for example, is not in favor of divorce and will not remarry after divorce. Using a legal separation, a couple can obtain the necessary means for separating, while preserving their chance to reconcile later.
All these advantages notwithstanding, there are disadvantages to a legal separation, too. For starters, a legal separation does not automatically convert to a divorce. If the spouses do NOT get along, it can be easy for one or both to NOT perform to the terms outlined in the legal separation. Such non-compliance may lead to undue burdens, while making a later divorce more difficult and expensive. It is also important to recognize that a legal separation still LINKED the two halves of the couple in terms of legal, financial and, other matters. In essence, couples should expect to remain "married," even in separation. As such, the income of each person will still be considered for factors like child support and spousal maintenance. They will still be subject to the State’s laws, and any violations of the legal terms may lead to criminal prosecution, fines, or even loss of visitation rights. Finally, there are costs associated with a legal separation, just as a divorce. An attorney will be required. You will also need to file documentation with the court and may need to go to court to inform the judge about your situation and whether you wish to convert the separation to a divorce.
Transitioning from legal separation to divorce in TN
If you are one of those who have chosen the path of legal separation instead of divorce and you decide that you want to terminate the legal separation and go ahead and divorce, it is a fairly simple process. Most of the information is contained in the legal separation agreement that was prepared at the time of legal separation. The agreement itself becomes a part of the court’s order when the judge signs it. Essentially, the agreement becomes a new contract between the parties concerning all issues that were addressed in the agreement.
If the agreement was to divide certain property, the divorce decree would require the transfer of such property from one to the other . If there was alimony in the agreement, then the divorce decree would adopt the terms of the agreement into the court’s decree. There may be some liability on one for the credit card debt of the other. Regardless, the divorce decree takes the place of the marital dissolution agreement for all purposes.
The actual divorce petition is not difficult to prepare and the contents can be similar to the dissolution agreement petition with a generalized allegation concerning a legal separation. The decree should contain a statement that the parties have been separated and lived apart for the requisite period of time and finalize the divorce.
How to decide between legal separation or divorce
When contemplating the end of a marriage, one of the most difficult decisions to make is whether to file for a legal separation or a divorce. Both legal separation and divorce require legal intervention. In both cases, a court is involved in determining how property, debt, and child custody is to be handled.
Legal separation, though, is a different way to end a marriage. It allows the spouses to remain "married" but not live together. Tennessee does not require that you file for legal separation prior to divorce. Many couples find separation beneficial while they consider financial and parenting issues.
There are a number of questions scholars, theologians, and everyday people have contemplated and written about when considering whether to separate or divorce:
- Is it the right thing to do? Religiously, personally, or morally?
- How will this affect the children?
- What will your friends and family say?
- Is it more expensive to separate?
- Is reconciliation an option, and what are its chances? And if we fail or decide to separate, how much will it cost, both emotionally and financially?
- What are your goals?
Responses to these questions differ and have been discussed in other formats, so it is outside the capabilities of this post to address every possibility and situation. However, some factors which may affect the decision can be highlighted.
Does the Relationship Require Separation?
Some relationships are characterized by a significant level of dysfunction, abuse, or intractability. When one or both spouses threaten the mental or physical well being of the other or their children, separation may be the best option. Not only does separation provide the protection of the law and the help of social services, it also establishes a new modus operandi for living.
Does the Relationship Require Divorce?
When the relationship is fundamentally irreparably broken, divorce may be the best option. With divorce, old issues remain, but the new normal is different. Instead of two families, there is now the extended family. Family holidays are now divided. Special occasions, like birthdays, are now celebrated separately. Emotions still run high, but approach the situation with more serious ramifications, given that there are new financial issues and considerations.
Deciding about Separation or Divorce
When deciding about separation or divorce, individuals must weigh the fundamental issues and dynamics related to their personal relationships against their spiritual beliefs, finances, and other real-world issues. However, before committing to either separation or divorce, many individuals and couples will benefit by obtaining professional help in making those decisions.
Managing a legal separation or divorce mentally, emotionally, and in terms of logistics is difficult for many individuals and families. Working with therapists, counselors, and divorce lawyers is essential for a positive outcome.
Getting a legal separation lawyer in Tennessee
When it comes to legal matters such as legal separation, divorce, child custody, or alimony, it is always a good idea to seek legal counsel. Finding a lawyer who specializes in family law in Tennessee can be very helpful in resolving these issues according to Tennessee laws and guidelines.
There are several ways to choose the right lawyer for your legal separation case. Some people rely on friends and family for recommendations, while others perform a search online or use their local phone directory. When you have narrowed down your search to a few candidates, you may want to make an appointment for a consultation with each of them. You should ask questions during the meeting about their fees , experience, and other legal matters to get an idea of the right lawyer for your situation and support your decision. Legal fees may be based on an hourly rate or a flat fee depending on the services being provided. Having a clear picture of the costs involved is vital for the separation process.
It is also important to keep in mind that if you need legal aid, there are many legal aid societies that operate state and federally funded non-profit organizations that help consumers find a lawyer to meet their legal needs. If you cannot afford the legal fees, inquire about whether or not the lawyer is willing to work with you on the fees or perform the services for less than their customary rate.