Divorce is one of the most stressful and complex experiences people may face. Myths and misunderstandings often make the process more difficult. Whether you’re considering a divorce, or simply trying to understand the process, it is vital that you are able to separate fact from fiction. Below, we debunk some of the most common misconceptions about divorce based on Tennessee law and the knowledge of our experienced attorneys.
Myth #01: “Gender Decides Custody Outcomes”
Under Tenn. Code Ann. § 36-6-106(a), judges consider sixteen (16) specific factors when making custody decisions. These factors include each parent’s ability to meet the child’s physical and emotional needs, the stability of each home, and the quality of the child’s relationship with each parent.
As a result, either parent may be named the primary residential parent, regardless of gender. In fact, equal or near-equal parenting time is increasingly common. Depending on the circumstances, courts often encourage shared parenting so that children can maintain strong, supportive relationships with both parents.
Myth #02: “Divorce is Always Contentious”
Divorce doesn’t have to be a drawn-out, hostile legal battle. In Tennessee, more couples are choosing non-contentious options to end their marriage with less conflict, lower costs, and greater control of the outcome. Depending on your circumstances, an uncontested divorce or a collaborative divorce might be the right fit for you and your family.
An uncontested divorce is a straightforward option when both spouses agree on the terms of the divorce. This involves settling issues such as property division, child custody, and spousal support without court intervention. This is an ideal option for couples who can communicate effectively and wish to minimize the emotional and financial toll of a contentious divorce proceeding.
A collaborative divorce is another option for parties who want to settle their divorce without court intervention but have more complex estates. This approach emphasizes cooperation, not conflict. Parties are able to utilize experts across various fields to help determine the best way to reach a settlement, where both parties feel secure and satisfied with the outcome. Mutual respect is fundamental to the collaborative process.
Each spouse is required to retain an independent attorney, specifically trained in collaborative divorce. Both parties sign a “participation agreement,” committing to resolving their issues through a series of joint meetings rather than litigation. The purpose of the joint meetings is to foster an open and honest environment where parties work together, alongside professionals, to reach an agreement.
Our managing partner, Sarah Digby, is trained in collaborative divorce and has helped many clients reach amicable resolutions through this process.
Myth #03: “You Have to Prove Fault to Get Divorced in Tennessee”
While Tennessee allows for fault-based divorces (i.e., those based on adultery, abandonment, or cruel treatment, etc.), Tennessee law allows a no-fault divorce based on irreconcilable differences. This is an option for spouses who agree that their marriage cannot be saved and have already reached an agreement on all major issues or are confident that they will be able to reach an agreement. Choosing between fault or no-fault grounds depends on the unique facts of your case. One of our experienced family law attorneys can help you evaluate the benefits of different divorce grounds based on your circumstances.
Myth #04: “If My Name is on the Property, It’s Mine”
Ownership is not based solely on whose name is on the title or deed. Marital property in Tennessee generally includes assets and debts acquired during the marriage, such as income earned by either spouse, real estate purchased together, retirement accounts, bank accounts, business interests and professional practices, vehicles, and debts. Separate property in Tennessee, which is not subject to division, typically includes property owned by a spouse before marriage, inheritances and gifts received individually, personal injury settlements awarded to one spouse, and assets protected by a valid prenuptial or postnuptial agreement.
Myth #05: “You Can’t Get Divorced if Your Spouse Refuses to Sign”
Many people believe that both spouses must agree and sign off for a divorce to happen. While mutual agreement can make the process smoother, you do not need your spouse’s permission to get divorced in Tennessee. If your spouse refuses to sign or does not participate in the process, the divorce can proceed in one of two ways: either as a contested divorce, or, in some cases, as a default divorce.
If parties cannot come to an agreement on all issues, such as property, child custody, or support, the divorce is considered contested, which requires issues to be resolved through further negotiation, mediation, or, if necessary, litigation. A contested divorce takes more time and may involve court hearings, or in some cases even a trial, but the case can still move forward and ultimately be resolved by a judge if the parties cannot reach an agreement.
If your spouse is served with divorce papers but fails to participate in the proceedings, you can request a default judgment. With a default judgment, the court may grant your divorce without the other spouse’s participation based solely on your evidence and testimony. A default judgment may not be possible in your specific circumstances, so make sure you discuss your options with an attorney.
The bottom line is that your spouse cannot stop you from getting divorced simply by refusing to sign or ignoring the process. One of our experienced attorneys can help ensure proper service, navigate contested issues, and protect your rights, especially when your spouse is uncooperative.
Myth #06: “You Must Be Separated Before a Divorce Can be Finalized”
Tennessee law does not require spouses to be legally separated or living apart before filing for divorce. Parties are only required to wait sixty (60) days after the divorce is filed with the court before a divorce can be granted if there are no minor children, or ninety (90) days if there are minor children involved.
Myth #07: “Once a Parenting Plan is Finalized, It Can Never Be Changed”
In Tennessee, a parenting plan can be modified if there has been a material change in circumstances and modification would be in the best interests of the child. A material change may include a change in a parent’s living situation, work schedule, or a change in the child’s needs. Child support can also be modified if there is a significant difference in the current child support obligation compared to the amount owed when calculating a new child support obligation. This typically occurs when there is substantial change in either parent’s income or other qualifying expenses, such as childcare costs. Our experienced attorneys regularly help parents revisit and revise custody, and support orders.
Myth #08: “You Can’t File for Divorce in Tennessee if You Got Married Somewhere Else”
Where you got married does not determine where you can file for divorce. You can file for divorce in Tennessee no matter where your marriage occurred as long as you meet the state’s residency requirements. If the grounds for divorce occurred in Tennessee or if you or your spouse have been a resident of Tennessee for at least six (6) months, you are likely able to file your divorce within the state. Our attorneys can help you determine whether you meet the residency requirements under Tennessee law, regardless of where you said “I do.”
Divorce is never easy, but understanding the truth behind common myths can make the process far less overwhelming. Every family’s situation is unique, having the right information, and the right guidance, can help you move forward with clarity and confidence. If you are considering divorce, have questions about your rights, or simply want to better understand your options, our team at Digby Family Law is here to help.
Reach out to us today to schedule a consultation and let our experienced attorneys guide you through every step of the process.