When a couple seeks to end their marriage in Tennessee, the termination of the marriage is generally accomplished through divorce. The divorce process usually commences with one spouse filing for divorce in a Tennessee court of competent jurisdiction. Once the divorce litigation is initiated, it will progress in either an uncontested or contested fashion. In uncontested divorce cases, the divorce is finalized upon the court approving and incorporating a Marital Dissolution Agreement (and a Permanent Parenting Plan if there are minor children born of the marriage) into a final judgment of divorce. In contested divorce cases, the parties are unable to agree on a Marital Dissolution Agreement (and Permanent Parenting Plan if applicable), and the divorce is finalized by a trial judge upon the entry of a final judgment of divorce after a trial.

There is, however, a rare alternative to divorce: annulment. Annulment is only available if grounds for annulment existed at the time a couple married. In other words, there must have been a defect in the marriage from its inception that renders it subject to annulment, and the spouse seeking the annulment has the burden to prove that the defect existed at the time of the marriage. Simply put, grounds for annulment in Tennessee do not arise after a couple marries, although they may be grounds for divorce.

In Tennessee, marriages subject to annulment are either void or voidable.

A void marriage is one that can be annulled during the lifetimes of the couple, but may also be challenged after the death of either or both of the spouses. If a marriage is void, it is invalid from the moment of its inception – sometimes, this is referred to as being void ab initio. Even if a marriage is void, it is still generally useful to bring a formal annulment proceeding in a court of competent jurisdiction so the court can make clear the marital status of the parties and adjudicate any issues related to children or property. Marriages that are prohibited by law are void.

A voidable marriage, however, is a marriage that is valid unless and until it is annulled. Importantly, a voidable marriage can only be annulled during the lifetime of the parties. If one of the spouses in a voidable marriage dies, the marriage will no longer be able to be annulled, and it will thereafter be considered a valid marriage even though it may have been voidable before the death of one of the spouses.

Under Tennessee law, there are several grounds for annulment, and these grounds are further divided between void marriages and voidable marriages.

A marriage is void from the beginning under the following circumstances:

1. when either party was already lawfully married (bigamy);
2. when the parties are within prohibited degrees of kinship, closer than first cousins (incest);
3. when, for any other reason, the marriage was prohibited by law, and its continuance is in violation of law.^[i]

A marriage is voidable from the beginning under the following circumstances:

1. when either party was insane;
2. when the complaining party was under duress;
3. when one of the parties was under the age of consent at the time of the marriage;
4. when the consent to marry was obtained by force, fraud, or was given by mistake;
5. when the defendant was impotent;^{[ii] [iii]}

Although many couples may prefer for their marriage to end in annulment rather than divorce, in Tennessee the overwhelming majority of marriages end in divorce rather than annulment. This is partially because, although annulment is possible or even required under certain circumstances, the grounds for annulment are often narrowly construed, and most couples simply do not meet the necessary legal criteria to have their marriage annulled.

If you believe that your marriage is void or voidable and that annulment may apply to your marriage, you should seek the advice of a knowledgeable Nashville divorce attorney as quickly as possible. Annulment plays an important role in domestic relations law in Tennessee, and even if annulment is found to not apply in your particular situation, it may lead you to analyze other factors that could be relevant to divorce. Contact Cole Law today at 615-490-6020 to schedule a consultation and learn more about whether annulment may be an option for you.

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States District Court for the Middle District of Tennessee, the United States District Court for the Western District of Tennessee, the United States District Court for the Eastern District of Tennessee, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

^[i] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

^[ii] For the ground of impotence to sustain an annulment under Tennessee law, one spouse must be physically unable to have intercourse, the impotence has to be permanent, and the impotence must have existed before the marriage.

^[iii] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

In many marriages, one spouse will be the primary breadwinner. If a couple is happily married, a significant disparity in income is often not a cause for concern, but if the couple decides to divorce, the lesser earning spouse is at a financial disadvantage and may wonder if he or she can afford the cost of an attorney. The law aims to protect the rights of all individuals, even individuals that cannot afford an attorney. Thus, in many divorce cases, the court will order one spouse to pay the other spouse’s legal fees. If you intend to end your marriage, it is in your best interest to consult a skillful Tennessee divorce attorney to discuss whether your spouse may be responsible for your legal fees.

Responsibility for Legal Fees

Like many states, Tennessee follows the “American Rule,” which traditionally requires a party to a lawsuit to pay his or her own attorney’s fees unless a statutory or contractual provision states otherwise. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). Nevertheless, Tennessee statutory law vests trial courts with the discretion to award one party his or her attorney’s fees in the context of a divorce proceeding, and some trial judges may deem such an award to be a form of alimony. See Tenn. Code Ann. § 36-5-103(c).

Under Tennessee law, there are four types of alimony: rehabilitative alimony; alimony solido, which is known as lump sum alimony; alimony in futuro, which is also referred to as periodic alimony; and, transitional alimony. Generally, an award of attorney’s fees constitutes alimony solido.

In addition, a contractual basis for an award of attorney’s fees often exists for divorcing or divorced parties when the parties have entered into a prenuptial agreement, postnuptial agreement, marital dissolution agreement, or other contract. If you think there may be a contractual basis to support an award of attorney’s fees in your divorce matter, you should consult with a knowledgeable family law attorney and get an evaluation of your potential options in the event of litigation.

Discretionary Factors the Court Will Consider

As with many decisions in divorce cases, the decision of whether the court will order your spouse to pay your legal fees ultimately rests within the discretion of the trial judge. In assessing whether to award attorney’s fees, the court will typically weigh several factors, including the earning capacity, needs, debt obligations, income (which includes money from retirement funds and trusts), and financial resources of each spouse. Financial resources include not only jointly owned property but also the separate assets of each spouse. Additionally, the court will evaluate the duration of the marriage and the age and mental and physical health of each spouse. The court will look at each spouse’s education and whether either spouse is unable to work due to being the primary caretaker of children born of the marriage. Finally, the court will evaluate whether the party from whom the attorney’s fees are sought has the ability to pay such fees.

If the court finds that the spouse seeking attorney fees has sufficient income or property to pay his or her own fees or expenses, the spouse will not be entitled to attorney’s fees. Instead, attorney’s fees are only appropriate when the spouse seeking such fees lacks adequate funds to pay for them. The court may also award a spouse attorney’s fees if he or she would be required to deplete his or her resources to pay an attorney. As such, if you are able to demonstrate that you are financially unable to pay an attorney, the court may order your spouse to pay your legal fees.

Speak with an Experienced Divorce Attorney

Divorces are not only emotionally draining, but they are often financially draining as well. If you wish to seek a divorce and want your spouse to pay your legal fees, it is prudent to speak with an attorney to discuss your rights. At Cole Law Group, our experienced Tennessee divorce attorneys can assist you in protecting your interests throughout the divorce process. You can contact us at (615) 490-6020 or via the form online to set up a meeting to discuss your case.

Alimony – A Primary Issue in Divorce

For better or worse, nearly half of marriages in the United States end in divorce. Although the exact statistics on divorce fluctuate slightly from year to year and state to state, the residents of Tennessee are no strangers to breaking the bonds of matrimony. Throughout Tennessee, it is widely accepted and understood that issues pertaining to child custody and property division must be decided as part of any divorce. However, another extremely important issue in divorce – the issue of alimony (sometimes referred to as “spousal maintenance” or “spousal support”) – is often less certain or overlooked by parties to a divorce until it is too late, particularly if either or both of the parties have never gone through divorce before or if the divorce is unexpected.

In a broad legal sense, there are five (5) primary issues pertaining to any divorce: (1) grounds for divorce; (2) child custody; (3) child support; (4) equitable distribution of marital property; and (5) alimony. While none of these issues can be considered in isolation, the issue of alimony often predominates throughout divorce. The issue of alimony is the last major issue decided by the trial judge in a Tennessee divorce. Even if the facts of a case strongly indicate that the Court is likely to award one party alimony at the conclusion of the proceeding, vigorous litigation can ensue regarding what form the alimony should take, as well as its amount, duration, and other conditions.

Types of Tennessee Alimony

Under Tennessee law, there are four (4) main types of alimony: (1) alimony in futuro; (2) alimony in solido; (3) rehabilitative alimony; and (4) transitional alimony. See Tenn. Code Ann. § 36-5-121(d)(1).

The first type, alimony in futuro, “[i]s intended to provide support on a long-term basis until the death or remarriage of the recipient.” Tenn. Code Ann. § 36-5-121(f)(1). Alimony in futuro “can be awarded where ‘the court finds that there is relative economic disadvantage and that rehabilitation is not feasible.’” Gonsewski v. Gonsewski, 350 S.W.3d 99, 107 (Tenn. 2011) (citing Tenn. Code Ann. § 36-5-121(f)(1)). This form of alimony often turns out to be all but permanent, not usually terminating until the death of either of the parties, the remarriage of the party receiving the alimony, or the subsequent cohabitation of the party receiving the alimony with a third person after the divorce. From the perspective of the party paying a spousal support obligation, alimony in futuro is often the worst outcome; from the perspective of the party receiving it, it is often the best outcome.

The second type, alimony in solido (also a “form of long-term support”), is “set on the date of the divorce decree and is either paid in a lump sum payment of cash or property, or paid in installments for a definite term.” Id. at 108 (citing Tenn. Code Ann. § 36-5-121(h)(1)). This form of alimony is often referred to as “lump sum” alimony because it is set at a definite amount (determined at the time the parties are divorced) and is often paid by one party to the other in a single lump-sum payment. Tennessee courts frequently use alimony in solido as a mechanism to make one party pay for the other party’s attorney’s fees.

The third type, rehabilitative alimony, differs from the first two types. Rehabilitative alimony is not a form of long-term support. Rather, it “serves the purpose of assisting the disadvantaged spouse in obtaining additional education, job skills, or training, as a way of becoming more self-sufficient following the divorce.” Id. (citations omitted). The General Assembly has expressed a preference for rehabilitative alimony over the other types “whenever possible.” Tenn. Code Ann. § 36-5-121(d)(2).

The fourth type, transitional alimony, may be awarded by a court when it “finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce.” Gonsewski, 350 S.W.3d at 109 (citing Tenn. Code Ann. § 36-5-121(d)(4), (g)(1)). Transitional alimony is a form of short-term support. Generally, if a court does not find rehabilitative alimony (the preferred form) is necessary, but that an otherwise self-sufficient spouse still “needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income,” it will award transitional alimony. See id.

Alimony is Discretionary 

Moreover, and perhaps most importantly, it should be noted that Tennessee courts are not required to award a party any alimony at all. Indeed, trial judges have the discretion to award alimony and, if so, to determine what form(s) any such award will take based on numerous statutory and equitable factors. Appealing an alimony decision may be possible but is largely dependent on the specific circumstances of each case and the manner in which any such alimony decision was made by the trial judge. While this article has provided a brief overview of the main types of alimony grounded in Tennessee law, it barely scratches the surface of the complexity entailed in litigating for or against alimony awards in a Tennessee divorce. Finally, this article also does not address the important topic of temporary spousal support, another critical factor that can predominate in divorce and set the stage for how long and costly a divorce proceeding can be before a resolution is likely to be reached.

Alimony Litigation Strategy Matters

In any event, when one spouse considers alimony a gift worth litigating to receive, the other spouse is likely to consider it a curse worth litigating to prevent. Even if a divorce case contains factual circumstances strongly indicating alimony will be awarded in some form regardless of how well one party performs over the other at trial, the strategy and effectiveness of the parties in litigation can significantly sway whether the alimony award will be substantial and protracted or trivial and brief. Depending on your age, ability to earn income, profession, and many other factors, fighting for or against an award of alimony could prove critical to ensuring your economic success after the conclusion of your divorce. When divorce puts so much at stake, finding a compassionate and knowledgeable attorney to help guide you through this daunting process is paramount to protecting your rights and securing your livelihood for the future.