Divorce, Child Custody, Visitation & Child Support

Domestic Violence: We Can Live Without It: Rights and Options Available Under the Law

Divorce, Child Custody, Visitation & Child Support
MARITAL DISSOLUTION

Grounds for Divorce

It is important to consult with an attorney before deciding whether any particular grounds for divorce are appropriate to a specific situation.   Tennessee law provides the following fifteen grounds for divorce or legal separation:^[37]

(1)       impotency at the time of marriage;

(2)       a prior existing marriage;

(3)       adultery;

(4)       desertion for one year;

(5)       conviction of a crime that renders the spouse infamous;

(6)       conviction of a felony and imprisonment;

(7)       a malicious attempt on a spouse’s life;

(8)       refusing to follow a spouse to Tennessee for two years;

(9)       pregnancy by another person at the time of marriage without the husband’s knowledge;

(10)     habitual drunkenness or drug abuse, provided the habit began after marriage;

(11)     irreconcilable differences;

(12)     continuous separation for two years when there are no minor children of the parties;

(13)     cruel and inhuman treatment;

(14)     indignities; and

(15)     abandonment and non-support.

Evidence in divorce cases ordinarily must be corroborated.  The trial court is given wide discretion in the admission of evidence, and on appeal a presumption exists that the evidence supports the trial court’s decree.^[38]

Defenses

The statutory defenses to adultery are recrimination, condonation, and connivance.  The statutory defenses to cruel treatment are recrimination and provocation.  There are no common law defenses to the grounds for divorce, but the defendant may assert defenses of existing prior marriage of plaintiff, laches, insanity, and res judicata.  The court can refuse to grant a fault divorce for collusion of the parties.  The fact that the acts alleged as grounds for divorce occurred after the separation of the parties is not a defense to a divorce action.^[39]

PROCESS FOR GETTING A DIVORCE

Finding a Lawyer

If an individual wants a divorce, it is in his or her best interest to retain a lawyer.  If you or someone you are trying to help is unsure whether to retain a lawyer, you can reference the instructions to Court-Approved [Agreed] Divorce Forms on the Tennessee Administrative Office of the Courts (“AOC”) website.^[40]  Sometimes the other spouse in a divorce will suggest that both parties use the same lawyer, but this is not a good idea because the other spouse’s lawyer represents only that spouse’s interests.  It can be hard to find a lawyer, and it may be helpful to obtain advice from relatives, friends, acquaintances, co-workers, or other lawyers.  When asking such people for lawyer referrals, it is important to explain to the type of legal problem at issue.  If someone had a similar type of problem and was satisfied with his or her lawyer, it might make sense to consult with that lawyer.  On the other hand, even though the problem was different, the former client’s satisfaction with the lawyer’s representation may be a good indication that the lawyer can help or at least offer a referral to another lawyer who can.

            When filing for divorce, it is permissible to give a mailing address, rather than a home address, to prevent an abusive spouse from finding the individual seeking a divorce.  Either the husband or wife must have resided in Tennessee for at least six months before filing a divorce complaint unless the grounds for divorce occurred in Tennessee.^[41]  If a spouse contests the divorce, he or she must file an answer within 30 days after being served with the complaint.^[42]  The court will set a trial date when the judge will hear evidence and decide issues of alimony, custody and visitation, child support, division of property, and division of debts.

The divorce takes effect on the day the judge signs the final decree of divorce. However, the parties may want to wait to remarry until the time for filing an appeal has passed because it is possible for either party to appeal the judge’s decision for 30 days.^[43]

Mediation

Mediation is a voluntary process by which a trained mediator helps a married couple arrive at a mutually acceptable agreement about child custody and visitation, child support, spousal support, division of property, and division of debts.  The Community Mediation Center (“CMC”) offers mediation services on a sliding-fee scale.  In mediation, the husband and wife will work with a trained mediator to discuss their problems and make their own decisions.  Mediators do not make decisions for the parties.  They provide a safe environment where the husband and wife can each communicate confidentially.

Mediation is rarely appropriate, however, if there has been violence or intimidation between spouses.  The spouse who has committed the violence or intimidation often continues to exert power over the abused spouse during mediation so that the parties do not have equal power in reaching decisions.  For this reason, if one spouse has an order of protection, if a court has found domestic abuse between the spouses, or if one spouse has been criminally convicted of domestic abuse, Tennessee law requires that a court can order mediation only if the abused spouse consents to mediation.  If the abused spouse consents, he or she may have a support person of his or her choice present during the mediation.  The support person may be an attorney or an unpaid advocate.  The mediator in such a case must be trained to deal with domestic and family violence, and the mediation must be conducted in a way that protects the abused person’s safety.^[44]  These safeguards are intended to make mediation possible when one spouse has abused the other, but an abused spouse should seek advice from an attorney, counselor, or mediator before agreeing to mediate under these circumstances.

            CMC mediators are trained volunteers from various backgrounds.  They include University of Tennessee faculty, attorneys, social workers, corporate executives, teachers, business persons, retirees, and other community members.  Mediation can be quicker and less costly than litigation.  To be divorced, parties still need to file a suit in court, but mediation can help spouses reach an agreement to present to the court so that a trial is unnecessary.

Community Mediation Center Information

Address:                      912 South Gay Street, Suite L300, Knoxville, TN  37902

Telephone:                  865-594-1879

Hours of Operation:    8:00 a.m. to 4:30 p.m., Monday through Friday.

 

Irreconcilable Differences Divorce

Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other ground set out in Tennessee Code Annotated § 36-4-101 or § 36-4-102 (2014).^[45]

Divorce based on “irreconcilable differences” does not require either spouse to present evidence of anything negative about the other.^[46]  The spouses must agree, however, about child custody, visitation, child support, division of property, and division of debts.  They must file a written agreement called a “Marital Dissolution Agreement” with the court, and the court must approve the agreement.  The court must ensure that the agreement conforms to the state’s guidelines regarding the appropriate amount of child support and that it equitably divides the parties’ assets and debts.^[47] 

To obtain an irreconcilable differences divorce, the parties must wait 60 days from the date the complaint is filed if there are no minor children of the marriage and 90 days if there are children.^[48]  At the final hearing on an irreconcilable differences divorce, the parties do not need to bring witnesses to testify on each person’s behalf.^[49]  This is different from the final hearing in a fault-based divorce when each party needs one and sometimes two witnesses to appear on his or her behalf even if the other party does not contest the need for a divorce.

Legal Separation

In Tennessee, there is an alternative for married couples who cannot live together as husband and wife but who do not want an absolute divorce.  A Tennessee statute allows courts to grant a “legal separation,” which is sometimes called separate maintenance or a “divorce from bed and board.”^[50]  In an action for legal separation, the parties remain legally married, but the court can award custody of the children to one party, grant visitation rights to the other party, order child support and alimony, and divide the property of the parties.^[51]

When a spouse files a complaint for legal separation, the court may grant temporary relief, including a protective order prohibiting the other spouse (the defendant) from molesting or harassing the filing spouse (the plaintiff), an injunction ordering the defendant to move out of the house, temporary custody of minor children, and child support.^[52]  The court can also prohibit any property transfers until property rights are established.^[53]

A spouse may ask the court for a legal separation based upon any of the reasons set forth above for which a divorce can be sought.^[54]  If the court grants a legal separation, the court can change the decree to an absolute divorce after two years upon the request of either party if the parties have not reconciled.^[55]  The Court is not required to wait two years to grant a divorce if either party can establish grounds for divorce prior to that time.^[56]

If the reasons for divorce did not occur in Tennessee, the parties must have resided in Tennessee for at least six months before filing a complaint for legal separation.^[57]  The complaint must be filed in the county where the spouses resided at the time of separation or the county in which the defendant spouse resides.^[58]  If the defendant is out of state, the complaint should be filed in the county where the plaintiff resides.^[59]

Alimony

One spouse may be ordered to pay alimony to support the other.^[60]  The court awards alimony based on a wide variety of factors but most importantly on how much money the financially less advantaged spouse needs, how much each spouse earns, each spouse’s ability to earn income in the future, the relative fault of the parties in causing the divorce, and the standard of living the spouses each enjoyed during the course of the marriage.^[61]

In Tennessee, there are four types of alimony:

• Rehabilitative or temporary alimony
• Periodic alimony or alimony in future
• Transitional alimony
• Alimony in solido or lump-sum alimony^[62]

Temporary support or alimony, often called alimony pendente lite, may be awarded pending the grant of a divorce and is distinguished from an award of alimony after the divorce has been finalized.

CHILD CUSTODY, CHILD SUPPORT, & VISITATION RIGHTS

Child Custody

Custody of any minor children will be decided as part of a divorce.  The court may decide to award custody to either party or to both parties in joint custody or shared parenting.^[63]  Residential custody is the right to have a child live with the parent, and legal custody is the right to make important decisions about how the child will be reared.  The parent with residential custody usually controls decisions about the child’s education, health care, and spiritual upbringing.  In shared parenting, the primary residential parent is the one with whom the child will reside the majority of the time, and the alternate residential parent is the other parent.  In shared parenting, major decision-making authority will often be joint, even if the child resides with one parent more than the other during the year.  Even if a parent is not awarded residential parenting time with a child, the parent typically will still have visitation rights. 

When making a decision about custody, the court looks at many factors, including who has taken care of the children in the past, whether either parent has a problem with drugs or alcohol, whether either parent is violent, whether either parent is living with someone else without the benefit of marriage, and whether the parents are morally fit.  No matter what, though, the court’s standard in granting custody is the best interest of the child.^[64]  Sometimes the court may order that the person with custody may not move out of state without obtaining the court’s permission or the other party’s permission.

All divorcing or separating parents in Tennessee must attend a parenting education seminar and must suggest a plan for how their children will be brought up after the divorce.  The plan should talk about how the parents will make decisions about the children’s education, health care, out-of-school activities, and religious upbringing.  Although the court expects most parents to make these decisions together, joint decision-making may not be possible when one parent has abused the other.  Parents who cannot agree on a plan will usually have to participate in mediation to decide on a plan.  Parents can ask the court not to require them to agree on a parenting plan or to participate in mediation; however, most often this request will only be granted when one parent has abused the other.  If the parents cannot agree on a parenting plan, each one must suggest a plan separately.

When it comes to the custody of their children, married parents have equal rights to enjoy the maximum participation possible in the lives of their children unless and until a court orders otherwise.^[65]  This means that police will not interfere to take children away from one parent unless the other parent has a custody order.  If one parent leaves the children with the other parent, it may be used against the parent who left later during the divorce proceedings.    

If a spouse who has been abused leaves the abusive spouse, it can be difficult to keep the children while the abused spouse tries to get on her or his feet.  Sometimes relatives who keep children get attached to them and request custody of them from the court.  The laws allow anyone to ask for custody.  If a parent leaves the children with someone else, the court may decide that the parent does not have enough interest in the children to be awarded custody.

It is especially important for a spouse who has been abused to take the children when leaving an abusive spouse.  When the abused spouse leaves, there will be no one left at home to protect the children from the abuser.  When an abuser loses his or her first victim, he or she may abuse anyone else who is available, even his or her own children.

If a parent gives up custody in court to a spouse or anyone else, it is hard to get the children back later.  The court does not like to move children around without a good reason.  Once a parent gives up custody of children, the court will not award that parent custody unless the parent shows that there has been a material change in circumstance since the custody order was entered that makes it undesirable for the children to continue living with the person who has custody.  The parent attempting to regain custody will have to show that something serious, like child abuse or neglect, has occurred since he or she gave up custody.

Visitation

The enactment of the Parenting Plan statute has not changed the legislative and judicial policy that visitation is for the benefit of the child. ^[66]  It enables the non-custodial parent to maintain a traditional parent-child relationship with the child as nearly as is feasible,.^[67]

As part of the divorce decree, the court may order when and where a parent without custody may visit the children.^[68]  The court may even refuse to allow visits if visits would harm a child, and it may order supervised visits to protect the child.^[69]  Visitation is important, however, because in most situations children need to spend time with both parents.

Parents typically put into the decree a detailed plan for co-parenting time or visitation.  This plan may say, for example, that the parent without custody will have co-parenting time with the children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and on alternating major holidays.  Major holidays include Christmas, Easter, and Thanksgiving, as well as any other holidays the parents decide to include.  School-age children may also reside with the alternative residential parent for a couple of weeks or a month during the summer, as well as during the school spring break period.^[70]

Parents may agree privately to have reasonable and liberal visitation.  However, if a schedule for visits is not in the divorce decree, either parent may refuse to follow the oral agreement.^[71]

Tennessee law gives noncustodial parents the following rights:^[72]

• the right to telephone conversations with the children at least twice a week, at reasonable times;
• the right to send mail to the children that the custodial parent will not open;
• the right to know within 24 hours if the children are hospitalized, have a major illness, or die;
• the right to receive school records from the children’s school;
• the right to receive medical records from the children’s health care providers;
• the right not to have the custodial parent make derogatory remarks about the noncustodial parent or the noncustodial parent’s family in front of the children;
• the right to receive 48 hours’ notice, whenever possible, of all the children’s extracurricular and athletic activities;
• the right to receive a trip itinerary from the other parent whenever the other parent is taking the children out of state for more than 48 hours; and
• the right to access and participation in the children’s education, including legal and reasonable access to the children at lunchtime.

The failure of the custodial parent to comply with a visitation order may be sanctioned by revocation of a license held by the custodial parent and covered by the act.^[73]

Child Support

The primary residential parent may receive child support from the other parent.  The court sets the amount of child support.^[74]  In addition to ordering a parent to make cash payments, the court can order a spouse to pay child support by paying for rent, daycare, children’s doctor bills, children’s insurance premiums, children’s clothes, and transportation for visits with the children.^[75]

The court sets child support according to the Tennessee Child Support Guidelines.  Under these guidelines, the amount of child support depends on the amount of the alternative residential parent’s income, the amount of the primary residential parent’s income, and the number of children.^[76]  If you wish to use the state calculator to determine child support payments, visit the Tennessee Department of Human Services website and search “Child Support Services.”^[77]

A parent may request temporary child support during the pendency of a divorce.  If a parent needs child support but is not involved in divorce proceedings, he or she may seek the help of the Child Support Enforcement (IV-D) Agency.  The IV-D office will help the parent fill out the forms, and the parent is not required to have a lawyer.

If the parent who owes child support, the “obligor parent,” works, the receiving parent may ask the court to order child support to be paid by “income assignment.”^[78]  This means that the obligor parent’s employer will take the support money out of the parent’s paycheck and mail it directly to the court clerk.^[79]  The receiving parent can pick it up from the court clerk, or the court clerk can mail it.  The parent receiving support can also have it paid by income assignment if the obligor parent has regular income from real estate, pensions, etc.

If the obligor parent does not work, the court can still order him or her to pay the child support through the court.  The obligor parent will be responsible for getting the child support to the court clerk, and the receiving parent can pick it up from the court clerk or have it mailed.  Having the child support go through the court clerk means that the court keeps a record of when and how much child support is paid.  Having the child support paid to the court clerk also gives the obligor parent fewer opportunities to abuse or intimidate the receiving parent when paying the child support.^[80]

If the obligor parent pays child support directly to the receiving parent, it is important to write down how much is paid and when.  Keeping a record will help the receiving parent testify to the court later if payments get behind.

If Child Support is Not Paid

If payments are behind more than 30 days after they are due, and the obligor parent has regular income, the receiving parent can ask the court to order child support paid by income assignment.^[81]  This can be done without a lawyer, but the parent seeking payment needs to know where the obligor parent can be found so that he or she can be served.  The receiving parent also needs to know the obligor parent’s employer and the employer’s address if the obligor parent does not come to court.  If the obligor parent has personal property, such as a house or boat, the other parent can ask the court to require a bond or place a lien on the property to make sure the child support is paid.^[82]  To obtain an income assignment, call the court clerk or the Child Support Enforcement (IV-D) Agency.  They can provide the needed forms, and the IV-D Agency will help with filling out the forms as necessary.  They can also help the parent seeking payment file to have the obligor parent’s income tax refund paid for past due child support.

 

If you have questions about issues discussed in this section, you should contact an attorney.  The Knoxville Bar Association Lawyer Referral & Information Service (522-7501) can refer you to an attorney who handles the kind of legal problem you are experiencing.  Other options are listed in the local resources section at the back of the handbook.

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Domestic Violence Handbook 

With nearly 25 percent of women experiencing some form of abuse during their lifetimes, domestic violence is epidemic. Economic pressure increases stress on families and stress increases domestic violence. And, domestic violence affects all of us — at work, in health care and in the courts.  This Handbook is provided as a resource for attorneys, social service providers, but most importantly for victims and their family members.  

Download your copy now!

If you have questions about issues discussed in this handbook, you should contact an attorney. The Knoxville Bar Association Lawyer Referral & Information Service (865‐522‐7501) can refer you to an attorney who handles the kind of legal problem you are experiencing. Other options are listed in the Local Legal Resource Guide at the back of the handbook. Domestic Violence: We Can Live Without It Rights & Options Available Under the Law.

For more online legal resources, please click here.