Whether to completely terminate your marriage or just separate from your spouse is a highly personal decision. Tennessee is one of a handful of states that recognizes both separation and divorce in a similar light if you find yourself struggling with the choice. It provides for separation by court order, much like a divorce decree. Although the legal process is virtually identical, a few differences exist.
If you want to legally separate rather than divorce, you must file a petition with the court, just as you would if you were to dissolve your marriage entirely. You must cite grounds, and the same grounds apply to separation as to divorce. Your spouse can contest the separation or she can dispute your grounds. If she doesn't want to break up the marriage and contests the separation, the court will schedule a hearing. The judge can deny your request for a legal separation or overrule her objections and order one anyway if he finds good cause. If your spouse contests only the grounds you've chosen, but not the separation itself, Tennessee law provides that the judge will grant the separation regardless.
Separation vs. Divorce
An order for legal separation in Tennessee leaves you still technically married. The order only provides the terms by which you'll live separately; you're not free to remarry – or even to date or get involved with someone new. If you do, your spouse can convert your separation to a divorce on grounds of adultery, which has the potential to affect custody terms and alimony issues under some circumstances. The court cannot actually divide your marital property in a separation order, although the judge can address the use of it while you're separated. Any custody terms included in your separation order are considered temporary until a final divorce decree is issued by the court. This is an important distinction because when a permanent parenting plan is set in a divorce decree, it can only be changed later by a showing of a material change of circumstances that directly affects the custody arrangement and that has occurred since the decree was issued.
Grounds for Separation or Divorce
Tennessee offers some very creative and unique divorce and separation grounds – 15 grounds in all. If you're worried that your spouse might contest your grounds and cause a hiccup in your proceedings, you can cite irreconcilable differences rather than accuse her of any wrongdoing. This isn't actually considered the state's no-fault grounds, however, because if she alleges that no irreconcilable differences exist, the court can't grant you a divorce on these grounds. Tennessee's official no-fault grounds requires a separation period of two years and is only available if you don't have children. The state's numerous fault grounds may provide you with other options, however. They range from the usual adultery and cruelty issues to indignities, a refusal to move to the state, and even one spouse attempting to take the other's life.
Converting a Legal Separation
Tennessee law allows you to convert your legal separation to an absolute divorce on no-fault separation grounds after two years. Either spouse can file a second petition with the court, stating that you're still separated, you haven't reconciled and you want a divorce instead. The court will then convert the separation order to a divorce decree. You don't have to wait two years to file a petition and make this request, however, if you want to convert to a divorce on fault grounds, such as adultery. You can also avoid the two-year wait and divorce at any time if you filed on grounds of irreconcilable differences, and if you and your spouse submit a signed settlement agreement to the court.