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Tennessee Legal Separation
Legal Separation in Tennessee
Tennessee permits unhappily married couples to legally separate instead of divorce. In a legal separation, the spouses divide the assets and liabilities, provide for the custody of children, and set up financial support payments, but remain married in the eyes of the law. When a legal separation agreement is in place, either party may use it to complete a divorce.
A separation agreement protects both parties. This agreement puts the resolution of marital issues such as property, debts, financial matters, child custody, visitation and matters of support in writing. Separation agreements are legally binding and are used to settle marital issues.
The advantage of a legal separation is that the parties remain married. This means that a spouse can retain the insurance coverage of the insured spouse and that the parties maintain the legal relationship of marriage in the event of death or disability of a spouse.
Both a divorce and legal separation address similar issues: custody and visitation rights of any children, spousal and financial support, and division or property. Essentially, the only difference is the status of the marriage; in a legal separation, the couple can decide to cohabitate at any time and continue to be recognized as married. In a divorce, they cannot; the couple must remarry if they wanted to get back together. Section 36-4-102 (a) of the Tennessee Code states that "legal separation shall not affect the bonds of matrimony but shall permit the parties to cease matrimonial cohabitation."
In Tennessee, according to Section 36-4-102 (b) of the Tennessee Code, after two years of legal separation, the court may grant an absolute divorce to either spouse who requests it. That party must file a petition appending the original separation judgment and testifying that there has not been reconciliation. Moreover, the court also maintains the right to convert at its own discretion before the two-year period has expired.
This means that if a legal separation lasts for two years or longer, either spouse has the right to file for divorce. The legal separation agreement is usually used as the basis for a divorce agreement if the separation leads to divorce years later.
The spouses can be divorced in Tennessee without being legally separated first; likewise, when spouses are legally separated, it does not automatically follow that they must divorce.
A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.
The complaint for legal separation is similar to a complaint for divorce with the exception of the prayer. In the case of a legal separation, the petitioner does not ask to terminate the marriage, but he or she does ask the court to rule on the same things as in an absolute divorce. Section 36-4-102 (a) provides that "such complaint shall set forth the grounds for legal separation in substantially the language of Section 36-4-101 (for divorce) and pray only for legal separation or for such other and further relief to which the complainant may think to be entitled."
In the petition, the plaintiff tells the court the grounds for action, and, like in a divorce, the defendant has a legal right to object. Generally, however, these objections address the grounds, not the separation itself. If that is the case, Tennessee courts will order that the parties are legally separated anyway. The complainant (the party who filed for the separation) must answer this objection with what is called a "bill of particulars." This should include the same grounds that were cited in the initial complaint along with details as to time and place of the actions perpetrated by the defendant that made the separation desirable.
The grounds for a legal separation are the same as for a divorce. There are no-fault grounds, which include 1) irreconcilable differences or 2) living separate and apart for two years without cohabitation when there are no minor children. There are also fault grounds for divorce. These include adultery, desertion, assault (including attempted murder), cruel and inhumane treatment, drug use, impotence or verbal abuse.
To file for a legal separation, at least one of the spouses must be a legal resident of Tennessee or have lived in the state for a minimum of six months.
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