Divorce is often thought to be the primary function of the family lawyer. A very intelligent person once said that divorce is not the ending of the family but rather its rearrangement. It often is the first time the parties meet with a lawyer and this is where the lack of knowledge and planning can turn into a serious problem.
It is also important to note that divorce is not the only means of settling marital discourse. Legal separation, with or without support for one of the parties and with support for any minor children, is sometimes a useful tool to determine if divorce is the right course.
If divorce is found to be the proper course, it is important to know that there are only two real means of obtaining a divorce in Tennessee—irreconcilable differences or fault on the part of one or both parties. Tennessee does NOT have a no-fault divorce statute. The irreconcilable differences divorce comes close but it is not a true no-fault divorce.
In an irreconcilable differences divorce, neither party has to be at fault. However, the two parties must agree on each and every aspect of the divorce and wait 60 days after filing if there are no minor children or 90 days if there are minor children of the marriage before the divorce will become final. Unless the parties can come to a complete and total agreement on all aspects of the divorce, they cannot obtain an irreconcilable differences divorce in Tennessee. Once the waiting period has passed, the Judge assigned to the case will either hold a brief hearing in open court or will grant the divorce without a hearing; this is totally at the discretion of the Judge and varies among any given county. It is important to remember that if there are unsettled issues – the Judge will not get involved in settling those issues and will not grant the irreconcilable differences divorce.
When one party is seeking a divorce the statutes require one of the following causes to have occurred. In these cases the parties do not have to agree to all aspects of the divorce and the Judge will hold a hearing and make decisions that will settle the dispute(s) and result in a divorce being granted. The following are the statutory reasons for a divorce other than irreconcilable differences:
Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;
Either party has knowingly entered into a second marriage, in violation of a previous marriage, still subsisting; Either party has committed adultery;
Willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year;
Being convicted of any crime that, by the laws of the state, renders the party infamous;
Being convicted of a crime that, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary;
Either party has attempted the life of the other, by poison or any other means showing malice;
Refusal, on the part of a spouse, to return to that person’s spouse in this state, without a reasonable cause, and being willfully absent from the spouse residing in Tennessee for two (2) years;
The woman was pregnant at the time of the marriage, by another person, without the knowledge of the husband;
Habitual drunkenness or abuse of narcotic drugs of either party, when the spouse has contracted either such habit after marriage;
The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct;
The husband or wife has offered such indignities to the spouse’s person as to render the spouse’s position intolerable, and thereby forced the spouse to withdraw;
The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide;
Irreconcilable differences between the parties; and for a continuous period of two (2) or more years, both parties have lived in separate residences, have not cohabited as man and wife during such period, and there are no minor children of the parties (a special kind of irreconcilable differences divorce).
Simply put—irreconcilable differences with full agreement between the parties or a contested divorce based on one or more of the factors listed above are the only means of obtaining a divorce in Tennessee. If you feel you need to explore a divorce, contested or uncontested, please call us at 615.530.5719 or contact us by any of the means listed on the Contact Us page.
A word on so called “joint representation” in a divorce. While some lawyers will represent both parties in a “friendly” divorce action, the Tull Law Firm will not, both as a matter of policy and by virtue of our interpretation of the ethical standards in Tennessee. In most divorces there will come a point where the parties’ interests will diverge. It is at this point where joint representation breaks down and, as we see it, the lawyer will not be able to adequately represent both parties. To this end we will only represent one party in a divorce matter.
There are occasions where the parties have already reached a complete settlement of the issues in an irreconcilable differences divorce. In these cases we will reduce that agreement to the proper written documents by acting as the attorney for one of the parties. The other party can then review the documents and either agree and sign or obtain their own attorney to review the documents. It should be noted we will not assist the parties in reaching an agreement as that would constitute joint representation.
In any event we will perform this service for one party and the other party is free to do as they choose with regards to representation. Once the documents are signed by both parties, we will file them on behalf of the party we are representing and the waiting period will begin to run. Once the appropriate time period has ended, the Judge will either hold a brief hearing in open court or review or sign the documents granting the divorce (assuming the judge finds the agreement to be fair and equitable). If the Judge finds otherwise, the divorce will not be granted and the parties will have to rework their agreement to deal with the findings of the judge.
At the Tull Law Firm, PLLC we do not judge how the parties reached the point of seeking a divorce. We are here to help you reach your goals and as such will work to in whatever capacity necessary, other than joint representation, to assist you in this process. There is one other way we can assist the parties in the divorce process. Through our Dispute Resolution Services we will meet with the parties and attempt to get them to come to a resolution that will allow for an irreconcilable divorce. If this is something you would like to explore, please call us at 615.530.5719 or contact us by any of the means listed on the Contact Us page.