Eight Common Misconceptions About Divorce in Tennessee
Sept. 30, 2022
Divorce is a tremendous life changer. While not everyone embraces change, those who have the facts when experiencing a divorce are much more likely to see the light at the end of the tunnel. On the other hand, those who choose to believe in rumors—including what they read on the internet—can feel more confused and overwhelmed. At Middle Tennessee Family Law, we choose to deal in facts, and we encourage our clients to deal in facts as well.
Understanding the truth about divorce may not eliminate every ounce of the stress involved with one, but it can significantly reduce it. Whether you are headed for divorce in Franklin, Tennessee, or anywhere in Middle Tennessee, including Murfreesboro and Nashville, or if you are already in the middle of a divorce, let us dispel these eight common misconceptions.
1. A spouse can keep the other spouse from getting divorced.
If one spouse files a petition for divorce and serves the petition and summons as required by law on the other spouse, that spouse cannot deny the divorce. In fact, if the served spouse does not file a response to the petition with the court within 30 days (or request and be granted an extension under some circumstances), and if the spouse fails to appear in court on the scheduled date and time, the court can award a default judgment to the petitioning spouse.
2. You can’t file for divorce in Tennessee if you got married somewhere else.
If the “grounds” for the divorce, such as poor behavior during the marriage, occurred in Tennessee, the petitioner may file in Tennessee. If the grounds occurred in another state, the petitioner may file for divorce in Tennessee so long as one of the spouses has been a resident of the state for at least six months. Meeting this residency requirement gives a Tennessee court jurisdiction to dissolve a marriage regardless of the state the marriage occurred in.
3. Our assets will be divided equally.
In Tennessee, marital assets are divided equitably rather than equally. That means they are divided as the court determines is fair rather than just 50/50 no matter what. “Fair” depends on multiple factors, including the length of the marriage, the work history and earning capacity of each spouse, sacrifices made by one spouse to further the other’s education, and each spouse’s age, health, and mental capacity.
4. A cheated-on spouse ends up with everything in the divorce.
Grounds-based divorces are awarded in Tennessee, and adultery certainly is one of those grounds. You should know first that adultery must be proven if alleged as a grounds for divorce. However, even if proven, the cheated-on spouse does not necessarily “get everything.” Marital property is still divided equitably. However, the court may order the cheating spouse to pay the other spouse alimony due to poor marital behavior.
5. Primary custody of kids always goes to the mother.
Back in the days when mothers were rarely employed outside the home, they were typically awarded primary custody of the children in divorce. The mother was the person who had been spending the greater amount of time raising children in the home, so awarding her custody was less disruptive to the children. Because many couples now both work outside the home, and because of the prevalence of same-sex marriages, this is no longer accurate. Primary custody of the children will depend on what the court believes is in the best interests of those children. Often, that can be the parent who spends the most time with the kids, regardless of their parental designation.
6. If the other parent doesn’t pay child support as ordered, I can withhold visitation.
The child custody arrangement, parenting plan, and visitation agreement are official court orders. As such, they are to be obeyed unless or until the court issues a new order. Of course, paying child support is also a court order, and you can ask the court for redress if the parent fails to pay it as ordered. However, it is not up to you. Rather, it is up to the court to determine visitation. That must be observed or you—and not just the other parent—will be violating a court order.
7. The children get to choose who they live with.
Only the court can determine who a minor child lives with unless that child becomes an emancipated minor or joins the military. That said, the Tennessee court will consider the preferences of children ages 12 and older in rendering a decision on the matter. Again, the court bases its decisions on all child custody issues based on what it believes is in the best interests of the children.
8. Legal counsel won’t help with a no-fault divorce or in child custody matters.
It is true that you technically do not need to have a family law attorney representing you to get divorced in Tennessee. However, having an attorney on your side can be a tremendous help, even when you and your spouse can agree on everything related to your divorce.
Remember, your attorney may be the only person in the process ensuring that your best interests are served. Your attorney will provide experience and informed legal counsel on the division of marital property and debts and protect your interests regarding your children. In the event of a grounds-based divorce, your attorney will help you prove or defend the allegations. With the help of a divorce attorney, you can keep any negotiations productive and on track.
Turn to Middle Tennessee Family Law
At Middle Tennessee Family Law, we deal with the facts. We are compassionate toward our clients but don’t tell them what they want to hear. We tell them what they need to know. At the end of the day, we stick to the facts.
If you are considering a divorce in Franklin or in another Tennessee community, or if you are already involved in the divorce process, call us today to schedule a consultation.