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 Tennessee, 95.2% of the land is privately owned.^[i] In many cases, private land is concurrently owned by two or more individuals as tenants in common. Although each co-tenant in a tenancy in common holds an undivided interest in the property and retains the right to use and enjoy the property in its entirety, the co-tenants do not necessarily hold equal interests in the total value of the property. For example, one co-tenant may hold a 60% share of the property’s interest while two other co-tenants hold a 20% share; despite this, each tenant has the right to use 100% of the property.

What Is a Recurring Legal Issue That Impacts Tenancies In Common?

Notwithstanding the benefits of holding property as a tenant in common, concurrent ownership of this nature is often fraught with conflict and problems. A recurring issue that impacts tenancies in common occurs when a co-tenant seeks to extinguish their interest in the property. Once a property owner decides that they want to sell their portion of the land it is up for the parties to agree upon the details of this transaction. If the parties are unable to agree, then either party can file a lawsuit seeking a partition of the property.

What Is a Partition of Joint Property?

A partition is the court ordered sale or physical division of property that is owned by more than one person as tenants in common or within a joint tenancy. Pursuant to Tennessee law, every co-tenant retains an absolute right to partition real estate he or she holds in common with others. ^[ii]

What Is an “In Kind” Partition of Property According to Tennessee Law?

Tennessee courts prefer to order an “in kind” partition; this type of partition seeks to divide the property fairly and equitably amongst the tenants. However, partitions in kind are rare and difficult to achieve as they require property to be equitably divided.

Can I Ask a Court to Sell the Property Even If I Don’t Own 100% ?

Yes, it is more common for a partition to occur by sale, a partition by sale is warranted and the entire property will be sold, and the proceeds will be distributed to the tenants in accordance with the interest they hold. The party seeking partition by sale has the burden to prove, by clear and convincing evidence, either (1) that the property has certain characteristics which make it difficult to physically divide in an equitable manner; or (2) that selling the property, as opposed to partitioning it, would be economically advantageous to the parties.^[iii] If the party requesting partition by sale fails to carry its burden, partition in kind must be ordered.^[iv],[v] 

An Overview Of Tennessee Caselaw

An overview of Tennessee caselaw reveals that requesting parties are often successful in meeting the burden of proof to warrant a partition by sale. As the following cases illustrate, there are a variety of conditions that lead the court to order a partition by sale despite the demands of one of more tenants to partition the property in kind.

In Nicely v. Nicely, two tracts of land totaling 68 acres were ordered to be partitioned by sale.^[vi] The court determined partition in kind would depreciate the value of the property and was therefore unwarranted. The court highlighted that the “advantage” language within the statutes refers solely to financial advantage, and if selling the property as a single unit result in a financial gain for all parties then partition by sale must be granted. ^[vii]

In McKenzie Banking Co. v. Couch, the property at issue was a single medical office building that was originally a single unit but had since been divided into two units.^[viii] The court held that partition by sale was warranted because the property could not reasonably be partitioned in kind and would be devalued if it were. In making this ruling the court highlighted the following facts: (1) since the building had been assessed as a single unit, property taxes and insurance could not be paid for each half separately; and (2) dividing the property would leave one half without access to a public thoroughfare.^[ix]

In Hale v. Hale, the land at issue consisted of two tracts of rural property in Van Buren County that spawned 74 acres. ^[x] Despite two co-tenant’s pleas to partition the property in kind, the court ruled that partition by sale was warranted because “the property could not be reasonably divided between the parties without substantially lowering its value and creating parcels that are not substantially equal for the use of the parties”. ^[xi] In making this ruling, the court focused on the topography of the land, the minimal road frontage, and the disparate sizes of the parcels when divided by value. ^[xii]

Can Joint Owners Reach an Out of Court Settlement While Partition by Sale Lawsuit Is Pending?

Yes. Just because a party files a lawsuit seeking a partition by sale does not mean they cannot reach an agreement while the lawsuit is pending. Oftentimes, parties are able to resolve a partition case when one party agrees to buy out the other party’s interest in the property. Once the parties can agree upon a reasonable price, a party receives compensation in exchange for signing over their interest in the property to the remaining tenant. As a result, one party maintains ownership of the property and the other party receives compensation.

If you have questions about land ownership or specifically partition rights in Tennessee, we can help.  Just give Cole Law Group a call at 615-490-6020.

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^[i] https://fas.org/sgp/crs/misc/R42346.pdf

^[ii] Tenn. Code Ann. § 29-27-101.

^[iii] Tenn. Code Ann. § 29-27-201.

^[iv] Crawford v. Crawford, 2002 WL 31528504 (TN. Ct. App. 2014)

^[v] § 29-27-104. Children and minors; interests; partial partition

^[vi] Nicely v. Nicely, 293 S.W.2d 30 (Tenn. Ct. App. 1956)

^[vii] Id at 33

^[viii] McKenzie Banking Co. v. Couch, 332 S.W.3d 349, 350 (Tenn. Ct. App. 2010)

^[ix] Id at 351

^[x] Hale v. Hale, 2011 WL 773440, at *2 (Tenn. Ct. App. Mar. 4, 2011)

^[xi] Id

^[xii] Id at *3

Oftentimes in litigation, parties continuously seek the all-important piece of evidence to help win their case. This vastly important piece of evidence is sometimes known as a “smoking gun.” Some examples of a “smoking gun” may include the video of an injury that occurred on the premises of a business that clearly shows the injury was the fault of a third party, or an important email that indicates sexual harassment or racial discrimination.  However, it is not always easy to obtain this information and unfortunately sometimes parties choose to destroy evidence in hopes of hiding any evidence that may confirm their legal liability. What happens if a party destroys relevant evidence?

In 2015, the Supreme Court addressed this issue in a case know as Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 737, 2015 Tenn (https://www.tncourts.gov/sites/default/files/tathamleeann.opn_.pdf)

In Tatham, the plaintiff was in a serious car accident. Plaintiff alleged that the car accident occurred due to the failure of a new tire purchased from Defendant. Plaintiff brought a products liability case against the seller and the manufacturer. At the instruction of her insurance company, the plaintiff transferred title to the vehicle (and tire) to a third-party wrecker service. In ordinary practice, the wrecker service destroyed the tire and car. After the car and tire were destroyed, Plaintiff filed suit against the defendants. The defendants filed a motion for summary judgment requesting the court to dismiss Plaintiffs case because the tire was destroyed, and Defendants were prejudiced because they never got a chance to inspect the tire. The trial court refused to award the sanction because it held the plaintiff did not intentionally destroy or otherwise spoliate the tire. The Defendants appealed, arguing the trial court abused its discretion. This issue was addressed by the Supreme Court. The Supreme Court upheld the Trial Court’s decision not to award sanctions and in the process developed a new four (4) factor test for the Trial Court.

As a result of Tatham , the Tennessee Supreme Court developed a new four (4) factor test regarding the destruction/spoliation of evidence. The four factors are listed below:

(1) the culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct or fraudulent intent;

• In examining Factor #1, the Court will determine if the conduct was accidental or intentional. If it is proven that a party willfully destroyed relevant evidence, then this factor will help the non-spoliating party. If it is accidental, this factor may benefit the party who destroyed the evidence.

(2) The degree of prejudice suffered by the non-spoliating party because of the absence of evidence;

• Factor #2 concerns how much each party is harmed by their ability/inability to examine the relevant evidence. In Tatham, neither party was able to review the tire in question, so the Court did not weigh this factor heavily to help or hurt Plaintiff or Defendant. If one party was able to view the evidence, then it was destroyed without the other party viewing it, the Court will consider factor #2 in their analysis.

(3) Whether, at the time the evidence was destroyed, the spoliating party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation;

• Factor #3 is important because opposing parties commonly disagree on when litigation is “reasonably foreseeable” and it may vary from case to case. For instance, if a party is seeking to obtain the video of an injury that occurred at a business and they inform them of this by sending a litigation/legal (https://www.zapproved.com/blog/what-is-a-legal-hold/)  hold letter immediately after the accident, then litigation should be considered “reasonably foreseeable” upon their receipt of the legal hold letter.

(4) The least severe sanction available to remedy any prejudice caused to the non-spoliating party.

• Lastly, factor #4 states that the Court should show some restraint in sanctioning any party for destroying/spoliating evidence.

How might the Court punish a party who destroys evidence?

The court will examine each scenario on a case by case basis using all four (4) factors listed above before sanctioning any party for destroying evidence. The Trial Court may choose to impose sanctions under Rule 37 of the Tennessee Rules of Civil Procedure. The Court has a wide discretion of sanctions that they may Order which range from an adverse inference (https://definitions.uslegal.com/a/adverse-inference-rule/)  all the way to a Default Judgment. A Default Judgment is normally reserved for the most severe behavior.

How might destruction of evidence impact your potential legal matter? Examples below: 

• You are preparing for a divorce in Williamson County, TN, and you are worried your spouse may destroy relevant evidence concerning inappropriate marital conduct and/or dissipate marital assets.
• You have been the victim of racial discrimination or sexual harassment and all relevant emails/information are on the company’s private internet server. 
• You have been injured on a third party’s property and you need to obtain the relevant video evidence that is solely in the third party’s possession, custody and control.

These scenarios demonstrate the importance of  preserving important evidence and retaining skilled and competent counsel for various legal disputes in Tennessee. The Cole Law Group litigation attorneys in Nashville can help to ensure that important evidence is preserved prior to prosecuting or defending parties in diverse types of litigation.