Who Gets Custody Of The Kids While Divorce Is Pending?

Divorce can affect the whole family. This is especially true when children are involved. One question that often comes up is; “Who gets the children while the divorce is pending?” The answer depends on you and your spouse.

Negotiate Temporary Custody Yourself

The best option is to negotiate the residential schedule for your children with your spouse. The advantage of working it out with your spouse is that you have some control of the outcome. The other option is to have the Court decide for you. A temporary parenting schedule is just that. It’s an agreement between you and your spouse that’s only temporary until the divorce is finalized.

Request a Temporary Custody Order

If the two parents cannot reach an agreement on the children’s residential schedule while the divorce is pending, then a hearing for a temporary residential schedule will need to be set. When this occurs, the Court is to decide on the best interest of the children. The factors are the same as if for a hearing on a permanent plan. These include financial stability of the parents, people that frequent the home(s) of the parents, mental and physical health of the parents, preferences of the children (weight of this factor depends on the age of the children), and other factors. At this hearing, both parties are allowed to testify and cross examine each other. Evidence is allowed at this hearing. I tell my clients to expect social media to show up here including Facebook, emails, test records and so on. With this approach, you lose your say so. You do have your testimony, but the decision is left up to the judge.

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In Tennessee, mediation is required to attempt to resolve the issues of the divorce, including residential schedules of the children. Usually, this occurs after a temporary hearing has been done for the residential schedule. The mediator will speak with you and your spouse separately and try to move the issues in a positive direction with the goal of settlement that works for both parties.

If mediation fails then next step is to set a final trial date. The temporary parenting plan remains in effect until the divorce is finalized or if both parties agree to make a change to the plan while the divorce is pending.

Requirements for Divorce in Tennessee

Like with all states, there are certain requirements to be met before a divorce can be finalized in Tennessee. The main focus on this article is on what is required to get a divorce filed. This article assumes that you are the Plaintiff “person looking to file the divorce.”

Residency Requirements

If the acts for the divorce occurred while you were a resident of Tennessee, but no longer live in Tennessee, then you have jurisdiction to bring the filing of the divorce. If the acts complained of occurred outside the state of Tennessee, then either you or the other party must have resided her at least 6 months preceding the filing of the divorce.

It’s important to not that if the acts occurred outside of Tennessee and you are the party living in Tennessee, the only way you would have jurisdiction is for the other party to agree to jurisdiction in Tennessee.


Venue deals with the location “court and county” to file in. Each county is a little different, but the court will be either Chancery or Circuit courts. You’ll just need to check with your county to see which court is proper for your divorce. Some counties, you can file in either Chancery or Circuit court. One example is Rutherford County. Both courts there have jurisdiction for divorce. You can only choose the County that is the proper venue. This will be the county where the parties resided at the time of separation, or the county in which the Defendant is currently residing, or in the county you reside if Defendant is out of state.  


A divorce is a lawsuit and as with any lawsuit, there needs to be grounds to do so. There is a list of grounds for divorce at Tennessee Code Annotated 36-4-101. This statute list a host of fault grounds such as adultery, inappropriate marital conduct, and desertion. For the fault grounds, you will have to prove these. There is also a no fault ground which is irreconcilable differences. With this ground, you and your spouse simply agree that your marriage cannot be saved. See our other articles dealing with specific grounds.


Waiting Period

The waiting period, sometimes referred to as the “cooling off period,” refers to the time from filing of the divorce to the time the divorce can be granted. If there are children born of the marriage and still under 18 years old, then the waiting period is 90 days. If no children born of the marriage or if the children are now over 18, then it is 60 days.

Uncontested - Agreed Divorce Tennessee

Uncontested divorces, also referred to as agreed divorces, is a process in which both parties can agree that it is in the best interest to end the marriage and they can agree on the things that needs to be addressed in order to execute the agreed divorce.

In Tennessee, an agreed divorce has the ground of irreconcilable differences as listed in Tennessee Code Annotated § 36-4-101(14). One of the documents required will be a Marital Dissolution Agreement (MDA). This agreement spells out the terms of the divorce and the relationship between the two parties after the divorce. This agreement will cover property division, debt division, autos, spousal support, retirement accounts, and any other relevant issues related to the divorce.

If there are children born of the marriage and they are still under eighteen years old, a parenting plan will be required. This is a detailed agreement of how the parents will care for their children after the divorce. This agreement includes the establishment of the residential schedule of the children, parenting responsibilities, and addresses child support.

If the parties can agree on the above mentioned topics, then they should be able to get a non-contested or agreed divorce executed in Tennessee. Agreed divorces will save the parties a lot of money as these types of divorces can be done with a relatively low flat fee. Additionally, in some counties, these can be done without ever having to go to court.

For uncontested or agreed divorces in Rutherford or surrounding counties, contact Cartwright Law, LLC at 615.785.2909 or email to will@cartwrightlawllc.com

How to Modify Child Support in Tennessee

Often I get asked if or how can child support changed? The legal answer is by a “significant variance” between the existing support order and the amount being requested. Tennessee law has defined a significant variance by a change of 15% or more.  

Some of the circumstances that may lead to a significant variance could include:

  •        An increase or decrease in a parent’s income (including salaries, bonuses)
  •        A change in the parenting time or visitation schedule
  •        A change in the number of children a parent is legally responsible for
  •        Remarriage by one of the spouses could result in a significant variance.
  •        Change in health care costs for  the child
  •        Changes in “fringe benefits” from work relative to personal living expenses

What are the steps to change or modify child support in Tennessee? To start, you need to verify income. Most parenting plans today have a provision where each parent is to share their income information from the previous year, usually by disclosing the prior year’s W-2 or 1099 documents. You’re looking to find out if there has been at least a 15% change in “gross income” not net income. In addition to the gross income, look at the cost for health and dental insurance premiums on the parent responsible for paying. If the other parent is cooperating with this, probably best to seek advice from a lawyer.

Study the child support guidelines in Tennessee. Remember details matter.

Run the numbers on the Tennessee Child Support Worksheet. Make sure it’s at least a 15% variance.

You will need to file a Petition in the appropriate court seeking Modification of Child Support.

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There are also defenses to all this if you’re the one in which your spouse is trying to make you pay more. That will be saved for another article.

This is just a quick overview on where to start. If this is something you are considering, it is best to contact a family law attorney in your area and discuss. Cartwright Law, LLC handles child custody matters and is located in Murfreesboro, Tennessee and practices in the surrounding counties. For this topic or other family law issues, please call 615.785.2909.

Can My Marriage Be Annulled?

Occasionally, I get asked a question asking if a marriage can be annulled. First, I’ll explain what is an annulled marriage in Tennessee? An annulled marriage is a void marriage, or in another way of saying it, it never happened. It means there was some sort of defect in the marriage “contract” that made it invalid.

Annulment is not the same as a divorce, but there are a lot of similarities. If there are minor children, a parenting plan and support issues need to be determined. Marriage assets and liabilities need to be addressed as well. When dividing up assets and liabilities, Courts objective is to put parties back in the position they were before the marriage which is different from the objective with a divorce. There is no waiting period with an annulment case. Divorce cases in Tennessee have waiting periods of 60 to 90 days depending on if there are children of the marriage. The burden of proof in annulment cases are clear and convincing which is a higher standard than that of a divorce proceeding which is preponderance of the evidence.

What are the grounds for annulment?

  • Either party was under the age of 16 when marriage took place.
  • Prior existing marriage at the time of the marriage and defendant believed their former spouse was living when getting remarried.
  • Any other violation of the marriage act (licensing requirements, etc)
  • Refusing to cohabitate or consummate after married
  • Mentally incompetent
  • Impotency (must have existed prior to marriage)
  • Duress (I.E. shotgun wedding)
  • Fraud (calculated to induce marriage which requires detrimental reliance...exp. the woman saying she is pregnant when she isn’t so that he will marry her)
  • Being married for a limited objective (green card) is not a defense
  • Secret pregnancy at time of marriage (where another man is the biological father) 

Defenses to the grounds above:

  • If married under age and continued to cohabitate until after 18 (ratifying the marriage)
  • Consummation of the sexual relations
  • If there was evidence of mental incompetence in a will context and there was a ratification during some type of lucid moment
  • If the ground was impotence, but the plaintiff had prior knowledge of impotency, it CANNOT be used
  • Duress? It can be ratified if the person continues to cohabitate long enough
  • Fraud? Cannot rely on fraud if you knew about/found out and continued to cohabitate



The Tennessee statute for annulment is TCA 36-4-119. However, it’s case law that ultimately drives the annulment laws. If you have specific questions as to how any of this relates to your given situation, please contact me, Will Cartwright, at will@cartwrightlawllc.com



Does it matter who files divorce first?

Occasionally, I’ll get the question of "Does it matter who files divorce first?" The quick answer is that it can create a few advantages to file first, however, in the long run it really doesn’t matter. I’ll explain starting with some potential advantages of filing first.

  • Filing first means you get to do some planning on the front end such as researching and finding the right lawyer for you. Once the other spouse is served with the Complaint, they will have 30 days to respond in Tennessee. This can be a lot of stress and anxiety that you won’t have to go through by first planning and filing.

  • The person filing first becomes the “Petitioner” or the “Plaintiff” and is then responsible for drawing up the initial Complaint which sets out the allegations and puts the other party in “defense mode” by having to respond.

  • One big advantage is if there is more than one potential jurisdiction for your divorce, you get to choose when filing first. It will place the burden on the other party to move jurisdiction.

  • By initiating first, you have the opportunity to start protecting marital assets.

  • In a trial situation, the person who files first gets to have the first word and usually the last. This means that they can set the stage and create some momentum in their favor. They get to define the issues and can characterize the behavior of the other party.

  • If there is a concern that the other party may take children far away from you or sell marital assets, it is much harder for them to do so once a divorce is filed. Once a divorce is filed in Tennessee, there is an automatic restraining order from these things. It is there to keep things as stable as possible until the divorce can be finalized.

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One disadvantage is in the initial filing fee:

The person filing must pay the initial filing fee for the divorce. In Tennessee, the initial divorce filing fees are usually much higher than a responding counter complaint. The filing fee differs from County to County in Tennessee ranging from around $200 to around over $300 depending on the county.


The divorce process goes on normally, no matter who files first. Both parties remain on equal terms in the legal system, and no one suffers any loses whatsoever.

If you or anyone you know have questions on these topics, please contact Will Cartwright, family law attorney in Murfreesboro, Tennessee.  

What can you do if Mother or Father isn't paying child support?

It is all too common that one parent doesn’t pay the child support obligation. The question becomes; “What can be done?” Tennessee courts have the power to punish for failure to comply with their orders. This comes down to contempt.

Civil contempt empowers the courts to use their powers in circumstances involving “the willful disobedience or resistance of any order….” TCA 29-9-102 (3). Our Supreme Court has explained elements of a successful civil contempt claim as follows:

First, the order must be “lawful.” Second, the order alleged to have violated must be clear, specific, and unambiguous. Third, the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order. Finally, the person’s violation of the order must be “willful.”

It is the “willful” part that these claims get argued. Typically, the parent having to pay will admit that they haven’t been paying the support obligation, but the argument will likely be that they can’t pay it for not having the ability to do so.

Upon a finding of civil contempt a court can imprison an individual to compel performance of a court order. This remedy is only available, however, when the parent owing the support has the ability to comply with the order at the time of the contempt hearing. If the contempt consists in omission to perform an act which the person has the power to perform, the person may be imprisoned until such person performs it. In that situation, it is said the person has the “keys to the jail” and can do away with the contempt by complying with the court’s order.

Now the burden will be on the person obligated to pay to show the inability to pay. When that person testifies under oath that he/she is without financial ability to conform there will be a hearing or trial to decide.

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What is common is that the person owing the support cannot just use the argument that they quit their job or something in the like thereof. So, if that person has intentionally placed themselves in that position, that person will likely still be found to be in contempt. Now, it is only when that person has the ability to perform that he/she can be confined until they do perform. If he/she is wholly unable to perform, they can be punished only by fine not exceeding $50 or imprisonment for not more than 10 days, or both. (citing the criminal contempt statute).

If this is you or someone you know, an experienced family law attorney is required to help navigate through the legal procedures. 

Cartwright Law, LLC

Termination of Parental Rights by Failure to Provide a Suitable Home

Tennessee Code Annotated section 36-1-113 (G)(1) provides for termination of parental rights based upon the ground of abandonment. There are several definitions of abandonment that appear in Tennessee Code Annotated section 36-1-102 (1)(A). Relevant to this article is T.C.A. 36-1-102(1)(A)(ii) defines abandonment as follows:

The child has been removed from the home of the parent or parents or the guardian or guardians as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child’s situation prevented reasonable efforts from being made prior to the child’s removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent or parents or the guardian or guardians to establish a suitable home for the child, but that the parent or parents or the guardian or guardians have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date.  The efforts of the department or agency to assist a parent or guardian in establishing a suitable home for the child may be found to be reasonable if such efforts exceed the efforts of the parent or guardian toward the same goal, when the parent or guardian is aware that the child is in the custody of the department.

To clarify this up a little, if DCS has petitioned your child or children dependent and neglected and has put them in custody of someone else, you have four (4) months to make “reasonable efforts” establish a “suitable home” or DCS (State) could terminate your parental rights for failing to do so.

Now there are several key words in this statute that you should pay close attention to. First, notice that “DCS or a child-placing agency” has an obligation here to also make reasonable efforts to prevent the removal of the child and to make reasonable efforts to assist the parent or parents to establish a suitable home for the child. In a recent Tennessee Court of Appeals case upheld a prior ruling that the State has to do more than provide a list of potential housing resources to meet this reasonable burden. If one or both parents have a mental condition, it’s even more responsibility on the State to help the parents. However, if a child is removed from parent due to a prior severe abuse finding, the DCS may be relieved from their reasonable efforts burden.

Secondly, what is a “suitable home?” I can tell you that it is more than just an appropriate physical structure. Although, the physical structure is important; this also includes such things as a drug free environment and free of domestic violence. A suitable home is one that can provide care and attention to the child. Any of this or the like in the home will make it a home that is not suitable no matter if you secured a mansion as your home.

Lastly, what are “reasonable efforts” on the part of the parent(s)? With the simplest answer, the Court will look to such factors as efforts to secure stable work which will provide the means to get and keep a suitable home. The parent will need to be able to show that they are working or applying for work on a regular basis. Applying to one or two jobs in a four-month span will not cut it.

The legal standards of proof upon the State is clear and convincing evidence. This is a high standard meaning there is absolutely no doubt that this has taken place. Once this standard has been proven, the State will then need to show that it is in the best interest of the child not to be with the parent(s). Click here for some of the best interest factors.

If you are facing a challenge with termination of abandonment of any kind, you’ll need dedicated legal representation who will advocate for your rights. If you have specific questions on this topic or any other child custody questions, please email to will@cartwrightlawllc.com or call 615.473.1006.


Will Cartwright

Cartwright Law, LLC

Murfreesboro, TN

Can a Parent Move with a Child Out of Tennessee?

This question comes up often in family law cases. It can come up during a divorce proceeding or after a divorce has occurred and there is already a parenting plan (visitation schedule) ordered from the Court. It can come up with parents who have never been married, but now one of the parents wishes to move out of the state of Tennessee. This situation is governed by Tennessee Code Annotated 36-6-108:

The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:

  1. Relocation does not have a reasonable purpose

  2. The relocation would pose a threat of specificand serious harm to the child that outweighs the threat of harm to the child of a change of custody; or

  3. The parent’s move for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

What this all means is that the parent who spends to most time with the child gets a presumption in their favor that it is okay to relocate with the child. If the “other” parent has an issue with the relocation, then the “other” parent would have to show one of the three scenarios listed above.


What is an example of a reasonable purpose? The most common one is probably relocation for work. However, it still isn’t clear cut. If you are working at McDonalds in Murfreesboro, TN and you are moving to work at McDonalds in another state; then the “other” parent would most likely when the argument that there is no reasonable purpose.

Subsection (2) is comparing the harm suffered by relocating the child in relation to changing custody to the “other” parent. The Court would be looking at what is in the best interest of the child in the two comparisons.

Subsection (3) is pretty much spells it out in plain language. If the custodial parent is relocating just to be mean to the non-custodial parent, then that is not supposed to happen. Remember, the burden of proof will be on the non-custodial parent.

If you have this situation or questions concerning this situation, please call my office at 615.473.1006 or email questions to: will@cartwrightlawllc.com

If you would like to set up an office visit, we can do that as well. Consultations are of no charge and office is conveniently located in Murfreesboro, TN.