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).

“Luke, I Am Your Father!”

The famous, misquoted dialogue in Star Wars Episode 5 where Darth Vader reveals he is Luke’s Father would not be enough under Tennessee Law for Darth Vader to have any rights to parent Luke.¹ Perhaps this is another example where the law is a bit more complicated than the movies. As an attorney, I have answered many questions about the rights of parents and children under Tennessee law. This article is intended to provide an overview of the default rules that govern the rights of parents under Tennessee law. It also addresses how mothers and fathers can petition to establish paternity in the Tennessee court system.

Tennessee is what is commonly referred to as a “Mother’s state”. This simply means that when children are born out of wedlock, the Father has no rights to parent the child.² If the parents are married, the husband is considered the father of children born during the marriage. If the parents are not married at the time of the birth, legal action of some sort must be taken to establish paternity, or the child has no legal father.

How Can Paternity Be Established?

Paternity may be established through a Voluntary Acknowledgment of Paternity signed in front of a notary or through a Court Order.³ The Voluntary Acknowledgement of Paternity is, “a simple legal process for an unmarried mother to establish paternity with the biological father. This process will allow the father’s name to be added to the birth certificate, and if the parents choose, for the child to have his last name.”⁴

If the mother and father of a child born out of wedlock do not get along, they may be forced to adjudicate the dispute through the court system. In the more populated counties in Tennessee, the county juvenile court has exclusive jurisdiction. In less populated counties, the juvenile court has jurisdiction along with any trial court with general jurisdiction.⁵  To get this process started in the court system, the Mother or Father would file a Petition in order to establish paternity. A Petition may be filed in the county where the mother lives, the father resides and/or the child is located

The Petition can be a short filing pursuant to the section of Tennessee law governing Parentage and Legitimation: Tennessee Code Annotated § 36-2-301 through 36-2-322. It would be wise for the Petition to include information about who the parties are, where they reside, why the Petitioner believes he is the father of the child and include a request for DNA testing pursuant to Tennessee Code Annotated § 24-7-112. The Petition should be filed with the Court and served on the Respondent. The Respondent would then have thirty days to respond to the lawsuit.

Additional Information You Should Know

There are some additional pieces of information about Tennessee law governing Parentage and Legitimation that are useful to know. The applicable Statute of Limitations is found in T.C.A. § 36-2-306. An action to establish parentage may be brought before or after the birth of the child until three (3) years after the age of majority. The age of majority in Tennessee is 18, thus a Petition in order to establish paternity may be brought until the child is 21 years old. The court is required to set a temporary order of child support if a party motions for it, and if the party shows “clear and convincing evidence of parentage on the basis of genetic tests.”⁶ Once parentage is established under Tennessee law, the child shall be entitled to inherit from the father in accordance with other law.⁷ There is no limitations period for child support payment orders.⁸ There are no jury trials and hearings should be expedited.⁹ The primary residential parent has a right to child support payments under Tennessee law.

That Important First Step

If you think you are the biological father of a child, or if you are the mother of the child and want to establish who the father is, I encourage you to speak with an attorney. The first step in this process is to establish legal paternity through a Voluntary Acknowledgement of Paternity, or to file a Petition in the proper court. DNA testing may be required. Every case is different, yet understanding the basic legal background can be valuable before you begin. An experienced Nashville family law attorney at Cole Law Group would be happy to advise and guide you through the decision-making process and expedition of establishing paternity. Call us at (615) 490-6020.

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¹ See https://en.wikiquote.org/wiki/The_Empire_Strikes_Back (discussing Star Wars Episode V and some of the more well known dialogue from the movie).

² https://www.tn.gov/content/dam/tn/human-services/documents/Establishing_Paternity_FINAL.PDF (“IF YOU ARE NOT MARRIED WHEN YOUR CHILD IS BORN, YOUR CHILD DOES NOT AUTOMATICALLY HAVE A LEGAL FATHER.”); Tennessee Code Annotated § 36-2-303(“Absent an order of custody to the contrary, custody of a child born out of wedlock is with the mother.”)

³ See https://www.tn.gov/humanservices/for-families/child-support-services/tennessee-paternity-acknowledgment-program–tn-vaop-.html

⁴ https://www.tn.gov/humanservices/for-families/child-support-services/tennessee-paternity-acknowledgment-program–tn-vaop-.html

⁵ T.C.A. § 36-2-307.

⁶ T.C.A. § 36-2-310.

⁷ T.C.A. § 36-2-313.

⁸ T.C.A. § 36-2-321.

⁹ T.C.A. § 36-2-308.