Same-Sex Divorce in Tennessee: Legal Considerations & Custody Issues
Understanding how these issues may affect you – and speaking with a Tennessee divorce attorney – may help you determine your options moving forward.
What are the primary legal considerations in a same-sex divorce in Tennessee?
While Tennessee applies the same divorce laws to all couples, certain legal issues may require closer attention.
The prenuptial or postnuptial agreement
If you and your spouse signed a prenuptial or postnuptial agreement, this agreement may need to be evaluated before you can move forward with property distribution. If this agreement is deemed invalid, the assets named in it may be subject to property division, among other outcomes.
For example, if you and your spouse both signed a prenuptial agreement but it was not properly drafted, the entire agreement may be invalidated. You might lose the protections this prenuptial agreement was meant to create, which could put some of your assets at risk of being divided.
The equitable distribution of marital assets
Tennessee relies on equitable distribution. This means that marital assets are divided fairly, but not necessarily equally. Marital asset distribution can require negotiations and mediation. You may also need to prove that certain assets were acquired before the marriage and not commingled, so that they are not divided.
For example, if you and your spouse acquired assets within the marriage, these assets may need to be divided between you and your spouse. Dividing these assets can be tricky, especially if they are important to you. Working with an attorney can make it easier to hold onto the assets you want to keep.
The parentage and/or adoption of your children
If you are not already legally recognized as a parent, you may need a stepparent or second-parent adoption to protect your rights. Doing so can grant you parental rights alongside the other spouse/parent. Without these rights, a divorce could put custody or visitation at risk. Securing legal parentage helps protect those rights.
For example, if you and your spouse adopted a child through surrogacy, parentage may depend on what court orders (and/or adoption) were completed, and whether both spouses are legally recognized as parents. If only one spouse is considered the child’s legal parent, a divorce could prevent the other spouse from visiting or caring for the child.
What are the main custody issues in a same-sex divorce in Tennessee?
When determining custody in a same-sex divorce, Tennessee courts evaluate several key factors that can significantly affect parenting time and decision-making authority.
Best interest of the child
When it comes to child custody, courts tend to focus on what is in the best interests of the child. This usually encompasses your ability to meet your child’s needs. Depending on the facts of your situation, you may be required to spend less time with your child or not be granted primary custody under this legal standard.
For example, if you live in a smaller apartment and have relatively unstable finances, the court may not believe that you are capable of meeting your child’s needs. This could result in fewer days or less time with your child. However, many other factors beyond financial stability will be assessed to make this determination.
Primary caregiving history
Courts consider which parent has historically performed caregiving duties as one of many factors when determining custody under the best-interests-of-the-child standard. But, depending on your custody arrangement, you could be forced to spend far less time with your child.
For example, if you spend a lot of your time traveling for work to support your spouse and children, the court may consider the other spouse the primary caregiver. You may end up with fewer days with your child because you are away from them so often. Even so, your career and being away from home are just two factors the court may consider when assessing this.
Legal parentage and custody rights
Non-biological parents may not have automatic custody or visitation rights unless they are legally recognized as parents through adoption or court order, although limited equitable or de facto parent claims may be available in certain cases.
For example, if a child was conceived through IVF or surrogacy, parentage may depend on marital presumptions, parentage orders, or adoption. Without legal recognition, a non-biological spouse may face challenges with custody or visitation. As a result of this, you might not have any legal right to visit this child, take care of them, or engage with them in any way. You may be able to become a legal parent if you complete the necessary adoption process.
How can a divorce attorney help?
A divorce attorney can help those going through a same-sex divorce in Tennessee by:
- Helping you mediate disputes between you and your spouse.
- Going over the divorce, child support, and alimony laws that Tennessee uses.
- Filling out all of the necessary divorce paperwork.
- Arguing for the best possible support outcome, based on your wishes and needs.
- Creating child support and custody plans that align with your goals.
Regardless of your sexual orientation, just about every divorce comes with its fair share of complexities. An attorney can help you address challenges that arise throughout the divorce process.
Speak with a Tennessee divorce attorney
Divorce can be hard. Working with an attorney can make things easier. At the Law Offices of Adrian H. Altshuler & Associates, we can review your case and help you through every step of the divorce process. Contact us today to speak with a Tennessee divorce attorney.