Legal Separation in Tennessee FAQs

Learn about legal separation as a divorce alternative in Tennessee.

By , Attorney · Cooley Law School
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Is There a Difference Between Legal Separation and Divorce?

Yes. Divorce is the legal method couples use when they want the court to terminate their marriage. The process begins when one party files a motion (request) for divorce with the court. Typically, couples can negotiate the terms of the divorce before seeing the judge. Divorce isn't a cheap or quick process, so if you and your spouse are still communicating, it might be in both of your best interests to reach a settlement agreement before a costly trial.

You'll need to agree on how you're going to handle child custody, visitation, and child support. Additionally, you should consider how you would like to divide your marital property and debts. Lastly, if one spouse needs the other's financial support, you should decide the terms of alimony. At the end of the divorce process, the judge will terminate your marriage, and each of you is free to enter other relationships, including remarriage.

Legal separation is similar to divorce in that you need to decide the same divorce-related issues, however, at the end of the legal separation process, you're still legally married to your spouse. Legal separation entitles both spouses to live a life separate from each other, but you are still technically married, so if either of you would like to remarry, you'll need to ask the court for a formal divorce first.

Why Choose Separation Instead of Divorce?

No one gets married with the intention of getting a divorce later. That said, some relationships don't work, so there may come a time when you need to discuss ending your marriage with your spouse. If you're not confident that you want to file for divorce, you may consider a legal separation, which is a less severe and permanent option than divorce. For other couples, divorce isn't a possibility because of strong religious beliefs.

There's no right or wrong reason to pursue legal separation instead of divorce. Some of the most common reasons couples choose separation include:

  • preservation of valuable tax or other federal benefits that would terminate with divorce
  • trying separation to preserve a stable family life for the children, or
  • for military spouses, a legal separation may ensure payment of your spouse's military pension.

What Does Legal Separation Mean in Tennessee?

The process for legal separation in Tennessee is virtually the same as divorce, except in the end, you're still legally married. It's important to note that you and your spouse must both want a legal separation for the court to grant your request. If either spouse wishes to file for divorce and meets the state's requirements, the court must proceed with terminating your marriage. (T.C. A. §36-4-102; Martin v. Martin, 155 S.W.3d 126 (2004).)

The process begins when either spouse files a petition for legal separation with the court. At least one spouse must meet the state's residency requirement, meaning one of you must be a Tennessee resident for 6 months before filing. Additionally, you must provide the court with a legal reason—or, grounds—for your request.

Tennessee is a mixed divorce state, meaning you don't have to give a specific reason why you want the relationship to end, but if your spouse committed misconduct (such as adultery or abuse) during the marriage, you could use it to get a divorce. For a legal separation you can demonstrate that you and your spouse have suffered irreconcilable differences—meaning, your relationship is damaged beyond repair—or if you don't have children, you can show that you've lived separate and apart for at least 2 years. (T.C.A. §36-4-101.)

Tennessee has a mandatory waiting period before the judge can act on your case, which is 60 days if you don't have minor children, and 90 days if you do. During this "cooling-off" period, you should negotiate the terms of your separation, meaning determine the best parenting plan for the family, how to divide marital assets and debt, and how to handle spousal support. If you can't agree, the court will resolve any unresolved disputes after the waiting period expires.

Once the court finalizes your separation, both spouses are free to enter into new relationships, create contracts as individuals, and generally live as though they are single. If you reconcile during your legal separation, you can ask the court to vacate (terminate) the order. On the other hand, after two years, either spouse can ask the court to convert the separation into an absolute divorce.

Can We Participate in a Trial Separation First?

Yes. If you're not confident that a formal separation or divorce is the right decision for your family, you can participate in a trial separation, which is where you live apart and reassess your marriage. During the separation, you and your spouse can orally agree to the terms of custody, visitation, and support. If you'd like a more formal agreement, you can put your conditions in writing. However, it's important to note that the court doesn't authorize or monitor trial separation, so if either spouse violates the terms of the temporary separation, the other's only recourse is to file for a separation or divorce.

What Is a Separation Agreement?

A separation agreement is a legally-binding contract that includes essential information related to your separation, like how you'll handle custody, support, and property issues. Separation agreements won't prevent you from getting a divorce later, but if either party asks for a divorce, the court may either incorporate the contract into the divorce or terminate the agreement altogether and create a new arrangement. (Russell v. Russell, 1926, 3 Tenn.App. 232.)

Should I Hire an Attorney?

In today's internet-driven world, it's no surprise that you can find legal advice on every corner of the web. That said, search engines are no substitute for a qualified and licensed attorney. If you're considering a legal separation, you should consult with an experienced family law attorney near you to learn your options before you file.

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