Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all
inclusive discussion of the law of separation agreements in Tennessee,
but does include basic and other provisions.
General Summary:
The parties to a marriage may make an agreement
in writing to an immediate separation and may make
provision for the support of either of them and of their children during
such separation. Divorce stipulations are governed by the rules of
contract. The terms of a stipulated property settlement agreement
that, by its terms, is not merged into the decree, retains significance
as an independent contract. Still, those terms relating to alimony
and child support provisions are subject to revision when conditions change.
The property settlement aspects of the agreement are not modifiable without
the agreement of the parties.
Statutes:
Tennessee Code
Title 36 Domestic Relations
Chapter 4 Divorce and Annulment
Irreconcilable differences - Procedure:
(a) (1) In all divorces sought because of irreconcilable
differences between the parties, if the defendant is a nonresident, personal
service may be effectuated by service upon the secretary of state pursuant
to the provisions of § 20-2-215.
(2) In lieu of service of process, the defendant may enter
into a written notarized marital dissolution agreement with plaintiff that
makes specific reference to a pending divorce by a court and docket number,
or states that the defendant is aware that one will be filed in this state
and that the defendant waives further service and waives filing an answer
to the complaint.
Such waiver of service shall be valid for a period of one hundred
eighty (180) days from the date the last party signs the agreement. The
agreement may include the obligation and payment of alimony, in solido
or in futuro, to either of the parties, any other provision of the law
notwithstanding. The signing of such an agreement shall be in lieu
of service of process for the period such waiver is valid and shall
constitute a general appearance before the court and answer which shall
give the court personal jurisdiction over the defendant, and constitute
a default judgment for the purpose of granting a divorce on the grounds
of irreconcilable differences.
(3) No divorce heretofore granted shall be invalid because the agreement
was signed and notarized or acknowledged prior to filing under prior law
before the action was filed.
(b) No divorce shall be granted on the ground of irreconcilable
differences unless the court affirmatively finds in its decree that the
parties have made adequate and sufficient provision by written agreement
for the custody and maintenance of any children of that marriage and for
the equitable settlement of any property rights between the parties. If
the court does not affirmatively find that the agreement is sufficient
or equitable, the cause shall be continued by the court to allow further
disposition by the petitioner. If both parties are present at the hearing,
they may, at that time, ratify any amendments the court may have to the
agreement. The amended agreement shall then become a part of the decree.
The agreement shall be incorporated in the decree or incorporated by reference,
and such decree may be modified as other decrees for divorce. Section
36-4-103.
Distribution of marital property:
(a) (1) In all actions for divorce or legal separation,
the court having jurisdiction thereof may, upon request of either party,
and prior to any determination as to whether it is appropriate to order
the support and maintenance of one (1) party by the other, equitably divide,
distribute or assign the marital property between the parties without regard
to marital fault in proportions as the court deems just.
(2) In all actions for legal separation, the court, in
its discretion, may equitably divide, distribute, or assign the marital
property in whole or in part, or reserve the division or assignment of
marital property until a later time. If the court makes a final distribution
of marital property at the time of the decree of legal separation, any
after-acquired property is separate property.
(3) To this end, the court shall be empowered to effectuate its
decree by divesting and reinvesting title to such property and, where deemed
necessary, to order a sale of such property and to order the proceeds divided
between the parties.
(C) The court, in its discretion, may impose any additional conditions
or procedures upon the sale of property in divorce cases as are reasonably
designed to ensure that such property is sold for its fair market value.
(b) For purposes of this chapter:
(1) (A) "Marital property" means all real and personal property,
both tangible and intangible, acquired by either or both spouses during
the course of the marriage up to the date of the final divorce hearing
or up to the date of the legal separation hearing unless equity would require
another valuation date and owned by either or both spouses as of the date
of filing of a complaint for divorce or complaint for legal separation,
except in the case of fraudulent conveyance in anticipation of filing and
including any property to which a right was acquired up to the date of
the final divorce hearing, or the date of legal separation hearing unless
equity would require another valuation date, and valued as of a date as
near as reasonably possible to the final divorce hearing date or the date
of the legal separation hearing.
(B) "Marital property" includes income from, and any increase
in value during the marriage of, property determined to be separate property
in accordance with subdivision (b)(2) if each party substantially contributed
to its preservation and appreciation, and the value of vested and unvested
pension, vested and unvested stock option rights, retirement
or other fringe benefit rights relating to employment that accrued
during the period of the marriage.
(C) "Marital property" includes recovery in personal injury, workers'
compensation, social security disability actions, and other similar actions
for the following: wages lost during the marriage, reimbursement for medical
bills incurred and paid with marital property, and property damage to marital
property.
(D) As used in this subsection, "substantial contribution" may
include, but not be limited to, the direct or indirect contribution of
a spouse as homemaker, wage earner, parent or family financial manager,
together with such other factors as the court having jurisdiction thereof
may determine.
(E) Property shall be considered marital property as defined by
this subsection for the sole purpose of dividing assets upon divorce or
legal separation and for no other purpose; and assets distributed as marital
property will not be considered as income for child support or alimony
purposes, except to the extent the asset will create additional income
after the division.
(E) Pain and suffering awards, victim of crime compensation awards,
future medical expenses, and future lost wages; and
(c) In making equitable division of marital property, the court shall
consider all relevant factors including:
(2) The age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of
each of the parties;
(3) The tangible or intangible contribution by one (1) party to
the education, training or increased earning power of the other party;
(5) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage
earner to be given the same weight if each party has fulfilled its role;
(8) The economic circumstances of each party at the time the division
of property is to become effective;
(9) The tax consequences to each party, costs associated with the
reasonably foreseeable sale of the asset, and other reasonably foreseeable
expenses associated with the asset;
(d) The court may award the family home and household effects, or the
right to live therein and use the household effects for a reasonable period,
to either party, but shall give special consideration to a spouse having
physical custody of a child or children of the marriage.
(e) (1) The court may impose a lien upon the marital real property
assigned to a party, or upon such party's separate real property, or both,
as security for the payment of child support.
(2) The court may impose a lien upon the marital real property
assigned to a party as security for the payment of spouse support or payment
pursuant to property division.
(f) (1) If, in making equitable distribution of marital property, the
court determines that the distribution of an interest in a business, corporation
or profession would be contrary to law, the court may make a distributive
award of money or other property in order to achieve equity between the
parties. The court, in its discretion, may also make a distributive award
of money or other property to supplement, facilitate or effectuate a distribution
of marital property.
(2) The court may provide that any distributive award payable
over a period of time be secured by a lien on specific property.
(g) (1) Nothing in this section shall be construed to prevent the affirmation,
ratification and incorporation in a decree of an agreement between the
parties regarding the division of property.
(2) Nothing in this section shall affect validity of an
antenuptial agreement which is enforceable under § 36-3-501.
Section 36-4-121.
Case Law:
A marital dissolution agreement is essentially a contract between
a husband and wife in contemplation of divorce proceedings. Gray
v. Estate of Gray, 993 S.W.2d 59 (Tenn.Ct.App. 1998). A property
settlement agreement between a husband and wife is within the category
of contracts and is to be looked upon and enforced as an agreement, and
is to be construed as other contracts as respects its interpretation, its
meaning and effect. Bruce v. Bruce, 801 S.W.2d 102, 105 (Tenn.App.
1990).
Only that portion of the property settlement between the parties
dealing with the legal duty of child support or alimony, over which the
court has continuing statutory power to modify, loses its contractual nature
when incorporated and merged into a decree for divorce. Penland
v. Penland, Tenn. 1975, 521 S.W. 2d 222.
