Grounds for Divorce and Where to File in Tennessee

From The Mid-South Divorce Guide, chapters 5 through 6, by
William W. Jones IV, a Memphis family law attorney and Rule 31 Listed
Family Mediator licensed in Tennessee and Mississippi. This guide covers
Shelby, Tipton and Fayette Counties in Tennessee and DeSoto, Tate and
Tunica Counties in Mississippi.

Questions this page answers

• What are the grounds for divorce in Tennessee?
• Do I need a reason to get divorced?
• Does it matter who files for divorce first?
• What is the automatic injunction in a Tennessee divorce?

Grounds,
Residency, and Where Your Case Gets Filed

You need a reason, at least
on paper

Tennessee requires a ground for divorce. Tennessee Code Annotated
section 36-4-101 lists them, and the list is long and some of it is old.
Adultery is on there. So is habitual drunkenness, conviction of a felony
with confinement, willful desertion for a full year, cruel and inhuman
treatment, and indignities that render the spouse’s position
intolerable. There is also a ground for two or more years of continuous
separation where there are no minor children of the marriage.

And then there is the one almost everybody actually uses. Irreconcilable
differences.

Irreconcilable
differences is not automatic

Here is the part people get wrong. Irreconcilable differences is a
ground, but under Tennessee Code Annotated section 36-4-103 you cannot
get a divorce on that ground unless you and your spouse have a written
agreement resolving everything. Property, debt, support, and if you have
children, a permanent
parenting plan.

So irreconcilable differences is not the easy way out of a fight. It
is the paperwork you file when the fight is over.

If your spouse will not agree, you plead irreconcilable differences
and you also plead a fault ground in the alternative, and then you
litigate. If you settle later, and most people do, the fault ground goes
away and the divorce is granted on irreconcilable differences. Pleading
a fault ground is not an accusation you are stuck with. It is a door you
leave open.

The waiting period

Once the complaint is filed,
Tennessee makes you wait before the divorce can be heard. Sixty days if
there are no minor children. Ninety days if there are.

The clock starts when the original complaint is filed. Not when you
signed the agreement, not when you separated. The day it hits the
clerk’s office.

This is a floor, not a schedule. Uncontested cases
sometimes finish shortly after the waiting period runs. Contested cases
run a year or more. The waiting period has never once been the thing
holding up a real fight.

Residency

Under Tennessee Code Annotated section 36-4-104, either you or your
spouse must have lived in Tennessee for the six months before the
complaint is filed. If the acts giving rise to the divorce happened
while you lived in Tennessee, the rule is different, so this is a
question to bring to a lawyer if your situation is not simple. Military
members stationed in Tennessee for at least a year are presumed to be
residents.

Which courthouse

Venue is governed by
Tennessee Code Annotated section 36-4-105. Generally you file in the
county where you both lived when you separated, or where the defendant
lives if the defendant lives in Tennessee. If your spouse is out of
state, you can file where you live.

In Shelby County, both Circuit Court and Chancery Court hear
divorces. Which one you land in affects who your judge is, and the
divisions differ in how they run a docket, what they expect on motion day, and how
quickly they will set a trial. This is exactly the kind of local
knowledge you are paying a local lawyer for.

Shelby County by itself makes up the 30th Judicial District. Our
office also practices in Fayette and Tipton Counties, which sit in a
different judicial district with their own judges and their own way of
running a docket. DeSoto County across the state line is a different
system entirely. That is Part Six.

Does it matter who files
first?

Usually not much. The person who files is the plaintiff and the other
is the defendant, and those labels do not carry the weight people think
they do. No judge in Shelby County is going to hold it against you that
your name came second on the pleading.

There are exceptions. Filing first triggers the automatic injunction
(next chapter), which
matters if you are worried about assets walking out the door. Filing
first can lock in venue if there is a real question about which state or
county the case belongs in. Filing first sets the clock running on
deadlines, which matters if you need momentum.

What I will say is that indecision has a running cost that nobody
itemizes. Debt keeps accruing on accounts you are still jointly liable
for. The status quo hardens into the thing a judge will be reluctant to
disturb. And you spend the months in the worst part of this, which is
the part where nothing has started and nothing is settled. If you have
already made the decision, the waiting is not protecting you from
anything.

One thing about the
complaint

Start with a rule of procedure, because it explains a document you
are shortly going to find upsetting.

A court can only award relief that somebody actually requested in the
pleadings. Whatever is not asked for is not on the table. If we leave a
form of relief out of the complaint and it turns out fourteen months
later that you needed it, it is not sitting there waiting on us to
remember. So complaints get drafted wide and get narrowed later.

Which brings me to the Highland Quartet.

When I was a kid I used to go to the Highland Quartet to watch
movies. A ticket was two dollars and fifty cents. A bucket of popcorn
and a soda ran another two fifty. So I needed five dollars to go to the
movies.

I asked my father for twenty every single time.

Twenty was ridiculous and we both knew it. He knew exactly what a
ticket cost and he knew exactly what I needed, and I knew that he knew.
Most of the time he handed me the five. But every now and then I would
get loved, and he would peel off a ten, and I would walk out of that
house with double what I actually needed because I had the nerve to ask
for twenty.

That is a complaint. We ask for the twenty.

So when yours arrives, do not read it the way you read a letter.
Nobody drafting that document was describing your marriage. They were
holding doors open for a client who does not yet know which ones they
will need to walk through.

Here is what to actually do with it. Sit down with the complaint and
a pen and mark the paragraphs that describe something you genuinely care
about. That list is going to be a great deal shorter than the document,
and it is the list your lawyer will actually be working from.

The Automatic Injunction

The moment a divorce complaint is filed and
served in Tennessee, a court order goes into effect against both of you.
Nobody has to ask for it. No judge has to sign anything extra. It is
automatic, it is mutual, and it is found at Tennessee Code Annotated
section 36-4-106(d).

You are now under a court order. Violating it is contempt of court, and
contempt can mean fines, fee awards against you, and in serious cases
jail.

Here is what it prohibits.

One. You cannot move, hide, spend down, borrow against, or
transfer marital property without your spouse’s consent or a
court order. There is a carve-out for ordinary living expenses and the
usual and customary expenses of a business. Groceries and the light bill
are fine. Wiring forty thousand dollars to your brother is not.

Two. You cannot cancel, change, or let lapse any insurance
policy covering either spouse or the children. Health, life,
auto, homeowner’s. You also cannot change the beneficiary. People
violate this one by accident more than any other, usually during open
enrollment. Call your lawyer before you touch anything at work in
November.

Three. You cannot harass, threaten, assault, or abuse your
spouse. You also cannot make disparaging remarks about your
spouse to the children or to your spouse’s employer. Read that last part
twice. Calling your spouse’s boss is a specific, named violation of a
court order.

Four. You cannot hide, destroy, or alter evidence,
and the statute specifically includes electronically stored information
and hard drives. Do not delete the text thread. Do not wipe the laptop.
Do not clear the browser history. Deleting evidence is worse than
whatever was in the evidence, every single time.

Five. You cannot relocate the children out of Tennessee or
more than fifty miles from the marital home without the other
parent’s permission or a court order. There is an exception where there
is a well-founded fear of physical abuse.

What this means practically

It means the window for financial rearranging closed the day you got
served. Anything you do after that is a violation and anything you did
in the months before is going to get looked at anyway under the dissipation rules in
Chapter 13.

It also means the injunction protects you. If your spouse drops you
from the health insurance, that is not just rude, it is contempt, and we
have a remedy. Tell your lawyer immediately.

If you need to do something the injunction prohibits, and sometimes
there are legitimate reasons, the answer is to get written consent or a
court order first. Not to do it and explain later.

Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)

Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.