Top 10 Myths Tennessee Divorce Law
By Benjamin Papa, Family Law Attorney and Mediator, Nashville, TN
As a full-time family law attorney and mediator, with the bulk of my practice being divorce and post-divorce cases, I have found that there are a number of widely held beliefs about how divorce law works in Tennessee. Unfortunately, many of the beliefs I hear from my clients are actually urban myths, not based in reality. While every case is different, and no one can ever predict exactly what a judge will do in any particular case, the following list, which is in no particular order, is meant to debunk some of the myths I most frequently hear related to divorce.
Myth 1: People routinely get "taken to the cleaners" in divorce, especially if someone has committed adultery or is at fault in some other way.
Reality - The legal standard for how property gets divided in a divorce is "fair and equitable." And the statute is explicit that courts are to divide the marital assets "without regard to fault," including adultery. As a practical matter, unless the parties mutually agree to something else, or there are other extenuating circumstances, "fair and equitable" translates into a roughly equal division of the property and debt.
Myth 2: Divorcing parents can simply agree to an amount of child support that the alternative residential parent pays to the primary residential parent.
Reality - Tennessee's Child Support Guidelines set forth what the child support obligation for each of the two parents will be. The primary residential parent absorbs his or her share of the support obligation from his or her own resources. The alternative residential parent pays the other parent his or her share of the child support, either directly or through the State. In determining the support amount, the Guidelines take into account the parties' income, the number of parenting days each parent will spend with the children, which parent is covering the child's health insurance premium, and other factors. While courts can deviate from the Guidelines, they usually do not. And if they do, they have to show why and how they are deviating. It is almost never enough for the parties just to decide that one parent would rather not pay support and the other parent simply agrees to that idea. The public policy notion is that the money belongs to the children and therefore neither parent can bargain it away.
Myth 3: If a divorcing couple agrees to a division of property and debt, the court will automatically adopt the agreement.
Reality - As stated above, the legal standard for property division in divorce in Tennessee is "fair and equitable." While it is certainly true that courts tend to be deferential to agreements between parties, the Court has to review and approve the agreement, finding that the proposed agreement is in fact "fair and equitable." For example, if one party is very domineering and strong arms the other into an agreement that gives him or her 95% of the property and leaves the other party with only 5%, that proposed division would likely raise a red flag in most judges' minds. If there is no good reason for such a skewed division, the Court may not approve it. The public policy interest here is that the State does not want divorce laws to be used as tools to impoverish a former spouse simply out of spite, potentially forcing the ex-spouse to seek state aid needlessly.
Myth 4: Spousal support (formerly known as "alimony") is automatic in divorce cases, especially if the couple has been married a long time.
Reality - Tennessee has a statute dealing with spousal support that lists twelve factors courts are to consider in determining whether spousal support is appropriate in a particular case, and if so, for how long and how much the support should be. The most important concept embedded in the twelve factors is a two-fold: Does the spouse seeking spousal support have a legitimate need for the money, and if so, does the spouse who is being asked to pay have the ability to pay. But spousal support is never automatic in the same way that child support is automatic.
Myth 5: You cannot force someone to be divorced if he or she does not want to be.
Reality - Everyone has a constitutional right to a divorce if he or she follows the appropriate procedures set out in the law. If the other party does not participate in the process, he or she runs the risk of having a judgment entered against him or her by default, which can mean the party seeking the divorce automatically receives everything he or she asked for in the initial divorce complaint.
Myth 6: Divorce mediation is most appropriate when the divorce is amicable and parties are getting along and communicating well.
Reality - So long as the parties are operating in good faith, mediation can be a great alternative to traditional litigation in any divorce case, regardless of the level of conflict the parties are experiencing. Other reasons to consider mediation is that it greatly reduces the cost of the process as well as the parties' stress level. Mediation also increases the parties' control over the outcome of their divorce. Further, if the parties have children, mediation can much better position the parties to be good co-parents to their kids after the divorce than going through a contentious divorce trial.
Myth 7: If a divorcing couple cannot agree to which of them will be the primary residential parent, the default is that the mother serves that role.
Reality - Any time the parties cannot agree as to who will be the primary residential parent, the judge will engage in what is called a "comparative fitness" analysis between the parties, where he or she will weigh a number of factors and determine which parent serving as the primary residential parent will be in the children's overall best interest. But simply being a woman, in and of itself, neither helps nor hurts.
Myth 8: In Tennessee divorces, all of the property and debt automatically gets divided 50/50 between the parties.
Reality - Tennessee's legal standard for property division is "fair and equitable" not "equal." The distinction allows the court to take into account various facts that might lead the court to skew the property one direction or the other. But, as a practical matter, most courts divide property at least in the vicinity of fifty/fifty, but the statute does not require them to do so, as long as the court can find that the division it makes is "fair and equitable" under the circumstances.
Myth 9: If an individual is about to file for divorce and moves an asset into an account in his or her name only, he or she can protect that asset from being divided in the divorce later.
Reality - In Tennessee divorces, all marital property and debt will be divided in the divorce, and whether a particular asset is titled jointly or solely in one party's name does not determine whether the asset is "marital" and subject to division in the divorce. While it is true that "individual" property does not get divided, whether property is classified as "individual" does not turn solely on whose name is on the account, or how the property is titled.
Myth 10: In Tennessee divorce, one or the other parent often receives full custody of the children.
Reality - As a threshold matter, there is no longer any such thing as "custody" per se in the divorce statutes. Instead, courts allocate parenting time between the parents, with one parent serving as primary residential parent and the other serving as alternative residential parent, or with the parties splitting the children's time equally between them in a shared parenting arrangement. Very rarely do courts name one parent primary residential parent (similar to being the "custodial parent" under prior law) and not award parenting time to the other parent. Absent abuse or neglect, there is a strong public policy interest in encouraging both divorced parents to spend time with the children on a regular basis.