Family / Domestic Law

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Marriage

If you find yourself in love and desperate to take the plunge into marriage, you might be surprised to find out how much the law intrudes on your fairy tale. You can’t just run off to the nearest chapel and get hitched, several requirements must first be met. 

Age

Though there are plenty of jokes about the southern propensity to marry young, Tennessee law is clear that it is illegal for any county clerk or deputy county clerk in the state to issue a marriage license when either of the contracting parties is under the age of 16, unless special consent is granted by a court. Between 16 and 18,parents will have to sign the marriage application stating that they grant their consent to the marriage. Once you’re 18, the trouble with age goes away.At 18 you are able to marry without securing consent of your parents or anyone else. 

How to get a marriage license

You’re both 18 and ready to get married, you’ve got the rings and the dress picked out. Now what do you need? A marriage license. To get a marriage license you must head down to the local county clerk’s office and pay the application fee. There’s not much to it,standard demographic information. A marriage license is valid for 30 days from the date it was issued so don’t drag your feet too long.

How to get hitched

Once you have your license you need to find an authorized official, oftentimes a member of the clergy, a judge or anyone else who has been authorized to officiate wedding ceremonies. You give this person your marriage license, which they must sign and return to the county clerk within three days of performing the wedding ceremony.

Thankfully Tennessee law is not so specific as to require certain colors or a set number of bridesmaids.The law say that while no formula is required for a wedding ceremony to be legally valid, the parties must declare in the presence of the officiant that they accept each other as man and wife.

Is common law marriage a thing? 

Nope, sorry. Though common law marriages are sometimes discussed in movies or on TV, they are not allowed under Tennessee law. A couple can live together for decades and hold themselves out to others as man and wife, but under Tennessee law none of the rights and privileges that come with legal marriages are ever extended to such people.

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Divorce

Though most marriages start off blissfully, this fairy tale can sometimes come to an abrupt end. If you decided to take the plunge and get hitched but later start to have second thoughts, the following primer on Tennessee divorce will let you know in broad strokes how the process works. 

Residency Requirement

First things first, in Tennessee before a person can divorce the issue of residency must be dealt with. This means that before you can file for divorce,either you or your spouse must have been a resident of the state of Tennessee-for at least six months. There are different rules for military personnel who move around frequently, but the idea is you must have a solid tie to the state before getting a divorce here. 

Grounds For Divorce 

The vast majority of divorces in Tennessee take place due to “irreconcilable differences.” This phrase is bandied around frequently and many people may not understand where it comes from. Back in the day, Tennessee law used to require that couples had to find fault before a divorce would be granted, this meant that one or both spouses had to do something listed in Tennessee statutes that then served as the basis for filing for divorce. Thankfully, lawmakers realized this approach made the whole divorce process longer and more combative than it needed to be and the option of a no-fault divorce was created. Couples can now say that“irreconcilable differences” led them to want to split and no one party has to be blamed for the demise of the marriage. 

In cases where couples may not be feeling so charitable, it’s still acceptable to file a fault-based divorce. This means you list one of the following reasons as the basis for your divorce filing:impotence (yep, that’s really listed in Tennessee law), bigamy, adultery,desertion for a year or more, conviction of an “infamous” crime, cruel treatment, attempted murder (obviously), habitual drunkenness or drug abuse and abandonment. 

Given all the possible reasons contained in Tennessee law it’s likely one or more will justify your desire to split. Ifso, you then meet with an attorney and draw up a divorce complaint, and the ball will start rolling.

Property Distribution

Tennessee is one of many states that subscribe to the “equitable distribution” approach to division of property.This means that when a couple splits their joint marital property is divided fairly between the two, though, and this is important to note, not necessarily equally. Property that has been acquired prior to the marriage or that was the result of an inheritance or gift are not included in the “marital estate” and thus not subject to division. Judges hearing a divorce case consider factors such as the length of the marriage, age of the couple, earning potential of each spouse and many other issues to decide who gets what. Spousal support(also known as alimony) and child support can also come into play when a judge is trying to divvy up assets. 

Though it’s possible that a case can get to this stage, the truth is that the vast majority of divorces in Tennessee are handled outside of a courtroom. Couples hire attorneys and work together in a(more or less) cooperative way to divide their assets fairly. This saves everyone a lot of time, money and frustration and avoids the ordeal of having a stranger (your friendly neighborhood family court judge) deciding which party walks away with the sofa.

How Can I Obtain A Divorce?

No Web page message can ever substitute for competent legal counsel on a subject as important as divorce. You should seek such counsel if you are contemplating a divorce.

There are numerous specific fault-based grounds for divorce in Tennessee. These grounds range from those which are very specific - adultery, bigamy, drunkenness, and the like - to less specific, such as inappropriate marital conduct.

Tennessee also has a ground for divorce called "irreconcilable differences" which does not require either spouse to give evidence of anything derogatory about the other. However, the parties must be in agreement on all aspects of the divorce, including child custody and support, division of all property and debt, together with any other significant issues arising out of the marriage and this agreement must be filed with and approved by the court. The court is obligated to make sure that the parties' agreement is in compliance with the state's guidelines for child support. In an irreconcilable differences divorce there is a waiting period of sixty days from the date the complaint is filed if there are no children and ninety days if there are children of the marriage. At the final hearing on an irreconcilable differences divorce it is not necessary to bring witnesses to appear on your behalf. This is different from the final hearing in a divorce on fault based grounds where you will need at least two witnesses to appear on your behalf even if your spouse does not contest the divorce.

In any event, you must have been a resident of the state of Tennessee for a period of at least six months before filing for either type of divorce, unless the specific grounds for divorce occurred within the state.

If the divorce is contested in any respect, the defendant must file an answer within thirty days after he or she is served with the papers. The court will set a trial date at which time the judge will hear the evidence and decide any disputes, such as alimony, custody, child support, visitation rights, division of property, and the like.

No matter how the divorce is obtained, you are divorced on the date the judge signs the document granting the divorce. However, there is a thirty day period after the judge has signed the final judgment during which either party may appeal the decision to a higher court. Neither party should remarry until after the time for appeal has passed.

Mediation is required for couples who are seeking a divorce. Mediation is a  process where an impartial third party facilitates discussion between the couple. Mediation helps the couple arrive at their own mutually acceptable agreement on issues, parenting plans, property and economic issues.  The mediation   must  take place within 180 days of the filing of the divorce. For more information on Mediation, please request message number 2200.

Legal Separation - What Happens?

Legal separation is an alternative for people who cannot continue to live together as husband and wife but who do not want a dissolution of their marriage. The effect of a legal separation as opposed to a divorce is that the parties to a legal separation are still married to each other in all respects but "bed and board." Sometimes a bed and board divorce is called separate maintenance.

There is a separate statutory provision which empowers the divorce court to grant a divorce from bed and board or from the bonds of matrimony. A wife may petition for a bed and board divorce as opposed to an absolute divorce if her husband abuses her person and creates an intolerable living condition. She may also sue for a bed and board divorce if her husband has abandoned her or "turned her out-of-doors" and refuses or neglects to provide for her. Either husband or wife has a cause of action if the other spouse is guilty of inappropriate marital conduct. Such conduct has been construed by the courts to mean a number of things.

The court has the discretion to decide whether an absolute divorce or a divorce from bed and board is proper. If the court grants a bed and board divorce, it has the authority to change the decree to an absolute divorce after two years if the parties have not become reconciled. This, however, is not mandatory, and the court is free to exercise its discretion in that regard.

The court has the same power in regard to the care and custody of minor children of the parties and what property rights exist between the parties as in a suit for absolute divorce.

If the grounds did not occur in this state, the parties must have been residents of Tennessee for at least six months prior to the filing of a legal separation or bed and board divorce. The complaint should be filed in the county in which the parties were residing at the time of the separation or the county in which the defendant resides. If the defendant is out of state, then it should be filed in the county where the applicant resides.

Temporary relief that can be granted includes a protective order prohibiting one party from molesting or harassing the other; an injunction ordering one party to move out of the house; temporary custody of minor children; and child support. The court automatically  prohibit’s any property transfers until property rights have been established.

Do I Have Grounds For Annulment Of My Marriage?

Annulment is a very unusual remedy. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all.

There are several legal grounds for annulling a marriage.

If you were married while you are under the legal age in Tennessee, without the legal consent of at least one of your parents or a guardian, your marriage may be annulled. This ground may apply to marriage partners who are married in secret or eloped without the knowledge or consent their parents. After reaching the age required for marriage in Tennessee, an annulment in this situation will depend on the facts of the case, and the court can find that the parties are still legally married.

If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary. It may be a good idea to seek some legal advice about the necessity of a formal court decree to set out the rights of the parties.

If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder.

If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraus is simply not telling the truth in order to induce the other party to enter into the marriage contract. Whether the failure to tell the truth will be grounds for annulment depends of the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply.

If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability,  grounds may exist for an annulment. The inability must continue and must exist at the time of suit.

Of course, marriage between brother and sister or parent and child or other close relatives are also void and like bigamist marriages, need not be formally annulled. Once again, it may be wise to seek a formal decree of the rights of the parties.

Finally, if the wife is pregnant with someone else's child at the time of the marriage and husband does not know about it , the husband has grounds for an annulment.

Annulling a marriage simply erases it from the records, as if it never took place. Children however will not become illegitimate just because the marriage was annulled.

Who Is Responsible For The Debts Of A Husband Or Wife?

You do not have to pay the debts of your spouse which were incurred before the marriage, and a husband or wife is not responsible for repayment of a debt incurred by the other spouse after the marriage, except to the extent that the debt is for necessaries. Necessaries include those things required for survival, including reasonable food, clothing, and shelter.

In addition, a spouse of an applicant for credit is ordinarily not liable for any debts where that spouse has not signed the application for credit, unless the credit was used for furnishing necessaries for which the spouse was liable under common law.

Under Tennessee law, either or both spouses may hold property separately. Property held jointly by husband and wife is presumed to be held as tenants by the entirety, but this presumption may be rebutted. As tenants by the entirety, each of the spouses has the right to the use and occupancy of the property and also a right of survivorship. This "right of survivorship" means that when a spouse dies, the surviving spouse owns the property free and clear of the claims of heirs or the deceased spouse's creditors.

If debts are incurred after marriage by only one spouse, the creditors are limited in their recovery to that spouse's individual property or his or her right of survivorship in property held as tenants by the entirety. If the spouse who owes the debts does not have any property of his or her own and dies before the other spouse, creditors would be entitled to no interest in the property owned by the surviving spouse.

Until now, we have discussed debts owed as part of a purchase of something. It is also possible for a problem to develop if one of the marriage partners becomes involved in a lawsuit stemming from an accident or injury. Generally, a married person is not liable for any injury or damages caused to another by his or her spouse. The one exception, however, is a case where that married person would be liable regardless of the marriage.

A person injured in an accident is treated no differently than any other creditor. If only one spouse is found liable to the injured person, then the injured person must seek recovery from property held by the debtor spouse individually or be limited to that spouse's right of survivorship in property held as tenants by the entirety.

As you can see, the problems of debts incurred by husband and wife can be complicated.

   

How Will The Property Of My Marriage Be Divided In A Divorce?


You may be concerned about dividing marital property. Marital property can include possessions, real property and money.

If you and your spouse cannot agree in writing on how to divide you property, the court will divide it for you.

If it is necessary for the court to become involved, the judge generally divides the property in the following manner:

First, the court must identify what property is marital property and what property is separate. Marital property is all the property that the parties get during the marriage, including the increase in value of the parties' separate property. After the marital property is identified, the court must "equitably" divide the marital property. This does not mean "equally", but actually means "fairly", the goal though is often to come as close to an even division as possible. The court does not consider who is at fault in the divorce in the division of property.