Tennessee LGBT divorce follows the same legal framework as opposite-sex divorce since the supreme court legalized same sex marriage nationwide in 2015, yet LGBTQ couples face unique challenges when seeking a divorce including property division complexities from pre-marriage cohabitation, parental rights issues for non-biological parents, and navigating Tennessee family law courts that may not fully reflect LGBTQ family realities despite legal requirements for equal treatment under grounds for divorce, marital property division, and parenting plans provisions.
Legal Recognition of Same-Sex Marriage in Tennessee
The Supreme Court's 2015 Obergefell v. Hodges decision established that the fundamental right to marry is guaranteed to same sex couples throughout the United States, including Tennessee.
Obergefell Decision and Tennessee Impact
In 2015, the Supreme Court handed down a landmark civil rights case where the Court ruled that the fundamental right to marry is guaranteed to same sex couples in Obergefell v. Hodges. The protection of the fundamental right to marry applies to same sex couples in the same manner as it does to opposite-sex couples. This case legalized same sex marriage in all fifty states because a denial of the right for same sex couples to marry would be a denial of equal protection under the law.
Tennessee's Path to Marriage Equality
Part of Obergefell actually originated from Tennessee in the form of Tanco v. Haslam. On October 21, 2013, the National Center for Lesbian Rights filed a lawsuit on behalf of multiple same sex couples in Tennessee seeking to have the state recognize their marriages that were established in states that recognized same sex marriages. The federal court granted a preliminary injunction requiring the State of Tennessee to recognize the marriages of same sex couples. After Obergefell established that the fundamental right to marry is also guaranteed to same sex couples, Tennessee finally recognized the ability for same sex couples to file for divorce.
Current Legal Status
Tennessee now recognizes same sex marriages as valid marriages in the state after the Obergefell decision. Tennessee law recognizes same sex marriages, and LGBTQ couples seeking a divorce follow the same process as any other couple. Tennessee recognizes same sex marriages, meaning same sex spouses can file for divorce in the same way as any other married couple.
Filing for Divorce in Tennessee for LGBTQ Couples
The divorce process is the same for both same sex and opposite-sex marriages in Tennessee, with all couples subject to Tennessee family law under Tennessee Code Chapter 36.
Residency Requirements
Before filing for divorce in Tennessee, you must meet the residency requirements or the court may dismiss the case. Either you or your spouse must have lived in Tennessee for at least six months and fully intend to remain within Tennessee for the foreseeable future. At least one spouse must have lived in Tennessee for at least six months before filing. If this is true, you are good to start filing for divorce in Tennessee in a county where either you or your soon-to-be former spouse resides.
Required Documentation
Either you or your ex will need to file several documents. Which forms you send out vary by circumstances, but being a same sex couple should not be a factor that affects the question of forms. Factors like whether you and your spouse have children together may make a difference. If you do not have children, your forms will include a request for divorce, a personal information form, and a civil case cover sheet. If you do have children, then in addition to the previous, you will need to submit a parenting plan and a child support worksheet.
Grounds for Divorce in Tennessee LGBT Cases
Tennessee allows both no-fault and fault-based grounds for divorce that apply equally to LGBTQ couples and opposite-sex marriages.
No-Fault Divorce Option
Tennessee allows couples to cite irreconcilable differences as grounds for divorce, which means neither party blames the other for the demise of the marriage but they both agree that it has ended. A no-fault divorce is based on irreconcilable differences, meaning neither party must prove wrongdoing. This is often the easiest and least contentious route for LGBTQ couples. Couples also could seek a no-fault divorce if they have no minor children and have lived apart for at least two years.
Fault-Based Grounds
When you or your ex submits the request for divorce, the form will have to include why you both are divorcing. If some negative action by your ex caused you to seek divorce and prompted a contested divorce, you may point to fault grounds such as adultery, cruelty, separation for two years without children, willful abandonment for one year, and attempted murder. While fault-based divorces can be more complex, they may impact alimony or property division decisions. Tennessee state law requires couples seeking a divorce to cite a reason for dissolving their marriage.
Choosing the Right Grounds
The decision about what grounds for divorce to cite will have a tremendous impact on how the divorce proceedings unfold. No-fault divorces save time and money and reduce drama. Another benefit that is especially critical for LGBTQ couples is that they keep control over all relevant issues in their couple's hands. Not all jurists in the state are sympathetic to same sex families. Although the law requires judges to apply the same standards to LGBTQ couples as to heterosexual couples, biases sometimes come through.
Property Division Challenges for LGBTQ Couples
Tennessee follows equitable distribution for marital property, but LGBTQ couples face unique challenges, especially when they cohabited before marriage was legally recognized.
Marital vs. Separate Property
Tennessee follows an equitable distribution model, meaning marital property is divided fairly but not necessarily equally. Equitable distribution of property in a Tennessee divorce means that spouses fairly divide property that either of them acquired during the marriage. Property acquired during the marriage by either or both spouses is considered marital property. Separate property is defined as all real and personal property owned by a spouse before marriage. Only marital property is divided upon divorce in Tennessee.
Pre-Marriage Cohabitation Complications
Many same sex couples face extra complications due to years of living together without the legal protections of marriage. Because same sex couples only recently became eligible to marry, many couples lived together and acquired property together for years before marriage. This property acquired before a marriage ordinarily would not be divided in a divorce, but would belong to the partner who acquired it or in whose name it was titled. Tennessee laws regarding equitable distribution often have an unfair effect on divorcing same sex couples.
Converting Separate Property to Marital
The Supreme Court of Tennessee lays out one way for property titled in the name of one spouse to become marital property. Appreciation in value of property titled separately in the name of one spouse before and during the marriage is marital property once it is shown that the other spouse substantially contributed to the property's preservation and appreciation as a result of efforts made as a homemaker or other such contributions. Examples include payment of the mortgage from a joint marital checking account or from both parties' salaries. A spouse's direct financial contribution to family expenses and indirect contributions as a homemaker constitute contributions to the appreciation or preservation of the other spouse's separate property.
Parental Rights and Child Custody for LGBTQ Couples
LGBTQ parents face a complicated and often unfair legal landscape when it comes to divorce, custody, and parental rights in Tennessee family courts.
Legal Recognition Challenges
Same sex couples often have children through surrogacy, artificial insemination, or adoption. Sometimes one spouse has a child from a prior relationship, and the other has a stepparent relationship to the child. Tennessee confers parental rights through a biological relationship or adoption. Child custody can be a particularly sensitive issue for LGBTQ couples, especially if both parents are not legally recognized as the child's parent. Even when both parents raise a child together, if only one parent is biologically related or legally recognized, the other may have to fight to establish parental rights.
Best Interest of the Child Standard
In Tennessee, child custody decisions are based on the child's best interests. Tennessee courts prioritize the best interests of the child while also recognizing that laws concerning rights afforded to parties involved in surrogacy, adoption, IVF, and artificial insemination can affect LGBTQ couples, and each of those areas is unique and complex. Courts evaluate custody based on the best interests of the child, and demonstrating your active role as a parent can strongly support your claim.
Second-Parent Adoption Protection
One of the most effective ways LGBTQ parents can protect their rights is through legal adoption. When one partner adopts the biological child of the other, this is known as second-parent adoption. It ensures that both parents have full legal rights, including decision-making authority and inheritance rights. The requirement for a legal second-parent adoption in Tennessee is that the step-parent and biological parent are married. When one spouse adopts the child of the other spouse, this can secure full parental rights by adopting the child, ensuring both parents are legally recognized.
Non-Biological Parent Challenges
Under Tennessee law, custody is generally granted to legal parents. If both spouses are listed on the child's birth certificate or have completed a legal adoption, both are recognized as parents with equal rights. However, if only one parent has legal recognition, often the biological parent, they may have an advantage in court. For LGBTQ couples who used assisted reproduction or surrogacy, this can be especially problematic. The non-biological parent may need to prove a parent-child relationship through legal adoption or prior court orders.
Spousal Support Considerations in LGBT Divorce
Alimony awards in same sex divorce can be complicated by the fact that many couples were together for years before they could legally marry.
Length of Marriage Issues
Spousal support provides another hurdle same sex couples must jump. Because alimony awards are based in part on how long a couple has been married, and because Tennessee did not recognize same sex marriages until the middle of 2015, you may be denied spousal support depending upon your particular situation. One of the factors used to determine alimony in Tennessee is the length of the marriage, which can disadvantage the lower-earning spouse in a same sex marriage.
Equitable Considerations
Tennessee courts may award alimony based on several factors, including each spouse's financial needs, earning potential, and contributions to the marriage. Whether you are seeking alimony or facing a spousal support request, experienced legal counsel will work diligently to protect your financial future. Contact us today to ensure the court considers both partners' financial and emotional contributions throughout the actual relationship, not just the legally recognized marriage period.
Navigating Tennessee Family Law Courts
LGBTQ parents may encounter courts that interpret the law narrowly, favoring biological parents or applying traditional definitions despite federal equal protection requirements.
Potential for Bias
Unfortunately, bias against LGBTQ parents still exists in some courtrooms. The challenges often arise from how Tennessee statutes define terms like mother, father, or husband and wife. These definitions were written long before same sex marriage was legal and have not been consistently updated. As a result, LGBTQ parents may encounter courts that interpret the law narrowly, favoring biological parents over non-biological parents in custody cases.
Natural and Ordinary Meaning Law
Tennessee passed the Natural and Ordinary Meaning law in 2017, also called HB 1111, requiring courts and agencies to interpret words in state law according to their natural and ordinary meaning. Critics have noted that this language could be used to exclude same sex couples from equal protection, especially when determining parentage or interpreting family statutes. While federal protections still apply, families must be cautious and proactive in securing their legal relationships through proper documentation and representation.
Protecting Against Discrimination
An experienced family law attorney knows how to present your case strategically and push back against discriminatory arguments. Your attorney can highlight your parental involvement, stability, and the emotional bond with your child—factors that Tennessee courts are legally required to prioritize under the best interest of the child standard. Working with a divorce attorney familiar with LGBTQ family law in Tennessee can make a significant difference.
Working with Experienced LGBTQ Divorce Attorneys
LGBTQ couples benefit from legal counsel familiar with the unique challenges facing same sex families in Tennessee family law courts.
Importance of Specialized Knowledge
Going through a divorce is often a stressful and complicated matter. When one or both spouses are part of an LGBTQ relationship, things can sometimes come with additional challenges. If you are navigating divorce or custody as an LGBTQ parent, you do not have to face it alone. Experienced counsel can guide you through the process and tell you more about the potential obstacles you can face, protecting yourself legally so that your rights are protected.
Proactive Legal Planning
Proactive planning can prevent many of the issues LGBTQ parents face in Tennessee family courts. Legal documentation not only provides security but also sends a strong message to the court about your commitment to your child's well-being. Custody agreements, co-parenting plans, and wills are powerful tools for LGBTQ parents. Even if you are in a stable relationship, these documents help secure your family's legal standing against future disputes or unexpected challenges.
Moving Forward with Tennessee LGBT Divorce
Tennessee's LGBT divorce law has evolved significantly since the Supreme Court legalized same sex marriage, but LGBTQ couples still face unique challenges requiring specialized legal guidance and proactive planning.
Equal Legal Framework with Unique Applications
Tennessee recognizes same sex marriages as valid, and the divorce process follows the same legal framework as opposite-sex divorces, with grounds for divorce, equitable distribution of marital property, parenting plans, and spousal support determinations all applying equally under Tennessee family law. However, practical applications can disadvantage LGBTQ couples due to years of pre-marriage cohabitation, parental rights tied to biological parents rather than established relationships, and courts that may not fully account for same sex family structures despite legal requirements.
Protecting Your Rights and Family
From understanding property division complexities when couples merged assets before marriage was legal, to securing parental rights through second-parent adoption, to presenting comprehensive relationship histories for spousal support determinations, Tennessee LGBT divorce requires careful attention to documentation, proactive legal planning, and experienced advocacy.