What Is a Legal Separation?
A legal separation is a court order that signifies that a married couple is no longer living together, but is not legally divorced. In a legal separation, the court can make orders for financial support, property division and child custody, just as it does in a divorce case. Both parties must agree to a legal separation for the court to recognize it.
In a legal separation, the couple remains legally married to each other and cannot remarry. It can be a stepping stone to a divorce, or it can be a way for a couple to live apart while remaining legally married for religious or other personal reasons. In Tennessee, legal separation is referred to as a "divorce from bed and board."
Grounds for Legal Separation in Tennessee
There are 15 grounds for legal separation, according to Tennessee law. They are:
- Natural impotence making a spouse incapable of procreation.
- Knowingly entering into a second marriage while still in the first.
- Desertion or absence without reasonable cause for at least one year.
- Criminal conviction that renders a spouse infamous according to Tennessee law.
- Felony conviction with incarceration.
- Spouse's attempt to take the life of the other by poison or other malicious means.
- Refusal by one spouse to move to Tennessee with the other without a reasonable explanation
– this spouse must not have lived with the other for at least two years while one resided in Tennessee. Married woman is pregnant by another man during the marriage without her husband’s knowledge. Substance abuse contracted by either spouse after the start of the marriage. Cruel and inhumane treatment by one spouse to another. Such horrible treatment by one spouse on another that staying married becomes impossible. Spousal abandonment or throwing a spouse out of the home for no reason and not supporting them financially. Irreconcilable differences. * Both spouses living in separate residences, who have not cohabited as husband and wife and have no minor children together, for a continuous period of two or more years commencing before or after April 18, 1985.
In Tennessee, there is a 60-day mandatory waiting period before filing for a legal separation, if the couple has no unmarried children under 18 years old. If they have children, there’s a 90-day waiting period.
During this time, the couple can negotiate the separation's terms, among them a parenting plan, spousal support and division of marital assets. This period commences on the day that a spouse files for separation.
Trial Separation in Tennessee
A trial separation is not a court-ordered separation. It is an agreement between the spouses to simply spend time away from each other. Often one spouse will move out, but they can also reside in the same house while separated.
A trial separation allows couples to work out their differences or personal issues that may interfere with the marriage. It also eliminates taking premature steps in court, like a legal separation or divorce.
How Does a Couple Legally Separate in Tennessee?
In Tennessee, a legal separation, also known as a "divorce from bed and board," is obtained by taking certain steps:
- File court complaint: The spouse who wants to be separated must file a separation petition in the appropriate court. The complaint states the grounds for the separation and all other relevant information.
- Serve complaint on other spouse: The complaint must be served on the other spouse, who then has the opportunity to respond.
- Attend court hearing: After the complaint is filed, the court schedules a hearing with the parties at which time the judge can make temporary orders for child custody, child support, alimony and property division.
- Obtain decree of legal separation: If the grounds for legal separation have been met, the judge issues a decree of legal separation. This order sets out terms of the separation, including issues related to child custody, child support, spousal support and property division.
Once a legal separation is obtained through the court, the spouses are free to embark on new relationships (but not marry) and live as though they are single.
They may also reconcile. If that occurs, they can ask the court to terminate, or vacate, their legal separation order. If the couple remains legally separated after two years, either spouse can ask the court to convert the order into a divorce order.
Pros and Cons of Filing for Legal Separation
In a legal separation, a couple can live life apart without violating their religious beliefs. While they’ll need to make decisions about such issues as custody and division of their assets, they can still choose to get back together at some point and resume married life.
In a legal separation, spouses can continue to share health insurance coverage and retirement benefits, and keep their tax benefits.
It is not legal to remarry during a legal separation – it is only legal to do so after a divorce is final. The process of legally separating is time-consuming, as the parties must divide their assets and make decisions regarding their finances, custody and child support arrangements. And obtaining a legal separation can be as costly as a divorce proceeding.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.