A primer on what to expect from a divorce in Tennessee, with or without children, and how you can prepare yourself for the process.

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Divorce is a simple process! Or at least it would be simple if people were simple. As divorces deal with people, and people live messy and complex lives, divorces become messy and complex by extension. But the basic framework of what needs to happen in a divorce can be easily broken down into a Five Step Process (Three Step Process if you don’t have children).

The Five Steps for a Divorce in Tennessee are, in order:

1. Determine what is “Separate Property” (and Debt) and what is “Marital Property” (and Debt)
2. Make an Equitable Division of Marital Property (and Debt)
3. Make a Permanent Parenting Plan for any Minor Children
4. Determine Child Support
5. Determine Alimony.

1. Separate Property and Marital Property
(and Debt)

“Separate Property” means any property which is separate from the “marital estate.” By contrast, “Marital Property” means any property which is part of the “marital estate.” Separate Debt and Marital Debt follow the exact definition, except instead of things with value it refers to things with negative value–an obligation or mortgage or other debt. Easy, right?

For a more formal and official definition, categories of property and debt for the purpose of a divorce are listed out under Tennessee Code Annotated § 36-4-121(b).

For a more informal and unofficial definition that I give to clients, the basic rule of thumb for determining whether property or debt of any kind is “separate” or “marital” is to start off by assuming that everything you own or owe is Separate Property. This includes savings, cash, mortgages, real estate, monthly paychecks, and everything that you can possibly claim is “yours.” Next, for each thing you owe or own, consult the following questions:

• Did you get it after you got married?
• Did you use it to buy something while you were married?
• Did you give it to your spouse?
• Did you mix it in with your spouse’s property?
• Did you use it to pay off a debt you got while you were married?

If the answer is “yes” to any of these questions, then you take whatever it is you were asking about and put it squarely in the “Marital Property” category.

Of course, this is not a hard-and-fast rule, and there are exceptions. For example, an inheritance is Separate Property by default even if it passes to a person after they are married. (See Tenn. Code Ann. § 36-4-121(b)(4)(D)). And Separate Property can become Marital Property over time if a couple treats it as if it were Marital Property. (the legal term for this is “Transmutation”). And just because a spouse helps pay for the mortgage for one or two months does not automatically make the home Marital Property.

These exceptions are why people hire attorneys. But for the purpose of doing some back-of-the-napkin math on your own of what might be subject to a division during a divorce, you can look to the rule of thumb to get a good sense of what that looks like.

Either way, after a Court determines what is “Separate Property” and what is “Marital Property” (or divorcing parties do this, if they can agree to it themselves), the next step is to equitably divide that property.

2. Equitable Division of Property (and Debt)

Before two people can get divorced, a Court must make an “equitable division of marital property and debts.” (See Tenn. Code Ann. § 36-4-121(a)). If neither person has much property or debt to speak of, or if they already split everything up when they separated, then this part is quick and easy.

Here is the key point to remember: “Equitable” is not the same as “Equal.” Many times (most times) an equitable split ends up being a 50/50 split. But this is not all the time. The factors that a Court is supposed to consider when dividing property are all listed out under Tennessee Code Annotated § 36-4-121(c). But those factors are just formal guidelines for a Court to answer one simple question: Is it fair?

Equal tends to be fair to everyone by default. But sometimes it isn’t. Is it fair to sell a house and split the proceeds 50/50 when only one spouse made all the mortgage payments? What if only one spouse made all those payments because the other one sacrificed their career to be a stay-at-home parent?

Arguments as to what is “fair” are why people hire attorneys. Divorcing parties are usually in the best position to say what seems fair for themselves, but are usually in the worst position to say what is fair for the other spouse. Judges are usually in the worst position to say what is fair for anyone, as they only see a brief snapshot of two peoples’ lives in the context of a witness stand. But if divorcing parties can’t come to an agreement on their own, a Judge makes a decision for them.

Either way, after a Court makes an equitable division of marital property (or divorcing parties do this, if they can agree to it themselves), then the next step is to make a Permanent Parenting Plan for the parties’ children. If the parties have no children, skip to Step 5.

3. The Permanent Parenting Plan

If divorcing parties have minor children (under 18) together, then a Court needs to make a Permanent Parenting Plan as part of the divorce. This is based on a form which is publicly available. generally speaking, a Permanent Parenting Plan sets out weekly and yearly schedules for which parent gets physical custody of which kids on which days. It also sets out specific baseline rights for parents, including which parent (or both of them) have the right to make key decisions for the children.

At its most basic, a Permanent Parenting Plan simply sets out a schedule and the other baseline rights of parents. At its most involved, a Permanent Parenting Plan can set out every single minor detail involving co-parenting, including:

1. When and how the parents can communicate;
2. When, where, and how an exchange of the minor children occurs;
3. Who a parent can and cannot allow around the minor children;
4. Methods for resolving a disagreement for a major decision for the children;
5. Etc.

Either way, the central purpose of a Permanent Parenting Plan is to give a set of rules and guidelines that parents must follow if they cannot get along or agree to anything. This happens more times than you might think.

Parents who are divorcing are free to agree to a Permanent Parenting Plan between themselves, but keep in mind that any agreement is subject to a Court’s approval. A Court can reject an agreement if the Judge thinks that the Permanent Parenting Plan is not in the best interest of all children involved. This usually happens if the day-to-day schedule is overly convoluted, or if the Plan has obvious problems with how the parties resolve a disagreement. Every Judge is different from every other Judge in what they consider to be important or in a child’s best interest. People hire attorneys even for agreed Permanent Parenting Plans in order to prevent the risk that it will be rejected by the Court.

Either way, after or at the same time as a Permanent Parenting Plan, a Court will set child support for any children involved in a divorce.

4. Child Support

Child Support is, by far, the greatest point of contention and argument in divorces with children and with custody disputes. Despite this, or because of it, child support is the factor of a divorce or custody matter which parties have the least amount of control–at least on paper.

Child Support in Tennessee is statutory in nature, and Courts rely at a baseline on an Excel Worksheet called a “Child Support Worksheet” or “Income Shares Calculator.” A copy of this form is publicly available. This form is based on a series of Child Support Guidelines, which set out specifically what affects overall support calculations.

As a rule of thumb, however, the two biggest factors for determining a monthly child support amount are:

1. Number of days each year spent with a child; and
2. Gross monthly income of each parent.

Numbers in the child support worksheet are relative to the other parent, not relative to a person’s general situation. This way, it is possible for a parent who spends a majority of time with a child each year to nonetheless still pay child support to the other parent. Or vice versa.

As a general rule of thumb, the more one parent makes in gross income per month, the more their child support obligation relative to the other parent will be. And the more time a parent spends with a child each month or year, the less their child support obligation relative to the other parent will be. Note that these are not always actual numbers at play: child support is based on the income a parent could make per month and the number of days a parent could spend with their child per month. If a parent quits their job to work at a lower income, they may still owe child support based on their prior employment. If a parent doesn’t spend half of their allotted time with their child, child support may not take into consideration those missed days. One of the reasons people hire attorneys even after a divorce is to make sure that child support stays rooted in the actual situations of both parents.

As with a Permanent Parenting Plan, both parents can agree to set child support at a specific number regardless of the Child Support Worksheet. However, as with the Permanent Parenting Plan, a Judge can reject this agreement if they do not think that it is appropriate under the circumstances. If divorcing parents want to agree to a different number than what the Child Support Worksheet spits out, they usually need to give a good reason for the difference if they want the child support figures to be accepted and approved by the Court.

5. Alimony

In any divorce, alimony is up for consideration as a last and final step. Alimony is specifically a last step after the division of marital property and determination of child support because those other things may affect whether alimony is necessary–and how much.

Under Tennessee law, alimony (sometimes called “spousal support”) is based on multiple factors which are set out under Tennessee Code Annotated § 36-5-121(i). However, the most important two considerations are:

1. A spouse’s need for alimony; and
2. The other spouse’s ability to pay alimony.

“Need” in this sense is not necessarily based on whether one spouse makes more money than the other spouse–the spouse who is in the running for alimony needs to be an “economically disadvantaged” spouse. That is, they need to have relied in some way on the standard of living during a marriage to their detriment.

The classic example of a spouse deserving alimony is the dynamic of a breadwinner and a stay-at-home spouse: while one parent made 100% of the income in a household, the other parent took care of the household as their full-time job. When these parties divorce, the breadwinner has no trouble moving on, financially. The stay-at-home spouse, however, has been out of the workforce for however many years and needs to find a job of some kind to survive. Alimony in this instance would probably be necessary; the only question would be how much and how long.

Alimony in Tennessee comes in three main forms:

1. Temporary or Rehabilitative Alimony – a set amount of money paid for a set amount of time, in order to enable the other spouse to get back on their feet.
2. “Lump Sum” Alimony – a set amount of money, paid either in one lump sum or in multiple installments, representing a settlement of the issue.
3. Permanent Alimony – Exactly what it sounds like. Usually this lasts until the death or remarriage of the spouse receiving alimony.

Of all three of these options, temporary alimony or rehabilitative alimony is the most favored. If there is a likelihood that the economically disadvantaged spouse will be able to get reasonably close to the other spouse’s standard of living post-divorce, then this form of alimony will usually be awarded, if any alimony is appropriate.

Before you start getting dollar bills in your eyes, though, keep in mind that there is no clear-cut answer to the question of whether and how much alimony should be part of a divorce. This is yet another reason why divorcing parties hire an attorney–to make sure that no one is getting the short end of what they deserve in a divorce. Nevertheless, here are some general rule-of-thumb guidelines for alimony:

• Alimony is usually only for long-term marriages. For marriages of <2 years, it probably isn’t going to happen. 3-5 years, it’s worth considering. 6-9 years, it’s definitely something to argue over. 10+ years, it would be attorney malpractice not to at least discuss it.
• Economic disadvantage is not based on the all-or-nothing situation of a person either being a stay-at-home spouse or a breadwinner. A doctor and a schoolteacher, both working full-time, would probably have a gap in their income that is enough to consider the schoolteacher as a candidate for alimony.
• Children are not required for alimony. A stay-at-home spouse with no children may be just as economically disadvantaged as a stay-at-home parent.
• Unlike an equitable division of marital property, alimony does take into account “marital fault”–i.e., whether one person acting poorly during the marriage. An economically disadvantaged spouse who (for example) is abusive to the other spouse, is a serial cheater, or has a gambling addiction may suddenly find that a Judge no longer considers them in need of alimony.

Either way, after the issue of alimony is decided (even if the decision is that alimony is not warranted), there is nothing more to do in a divorce and a Court is free to grant a Final Decree of Divorce.

Have more questions? Want to discuss any of these beyond a rule-of-thumb overview? Schedule a free consultation, below!