Legal Separation Agreements and Their Effect on Divorce

The Tennessee Code provides, as an alternative to divorce, that parties may enter into a legal separation agreement. Specifically, the Code states “[a] party who alleges grounds for divorce from the bonds of matrimony may, as an alternative to filing a complaint for divorce, file a complaint for legal separation. Such complain shall set forth the grounds for legal separation in substantially the language of § 36-4-101 and pray only for legal separation or for such other and further relief to which complainant may think to be entitled.”1


The separation, and the accompanying status of the parties “shall not affect the bonds of matrimony but shall permit the parties to cease matrimonial cohabitation” and the “court may provide for matters such as child custody, visitation, support and property issues during legal separation upon motion by either party or by agreement of the parties.”2 Notwithstanding this legal status and this provision of the Code, if a party desires an absolute divorce, they may still obtain one, either immediately or at a later date.3

While a legal separation may well provide the benefits of a resolution to marital strife and a division of assets as well as leaving the possibility open for a future reconciliation, if the parties may still obtain a divorce in the future, a legitimate question is raised. If and when the parties do seek an absolute divorce, what weight, if any, does a previously agreed upon legal separation agreement carry in the divorce proceedings themselves?

The recent Tennessee Court of Appeals case of Pless v. Pless addressed this exact issue.4 In Pless, the Court of Appeals relied upon the same two factors previously applied in Joiner v. Joiner5 in order to determine whether a separation agreement would be conclusive as to issues of property and alimony in a future action for absolute divorce.6 First, whether the agreement was intended to be a final adjudication of the parties’ rights upon divorce; and Second, whether a full hearing was conducted on the fairness of the hearing in light of the parties’ property and income, and if so, whether the same trial judge that entered the separation order presided over the divorce.7

The Court of Appeals in Pless held that contracts between parties are enforceable and [courts] will not relieve a party from their poor judgment in entering into a bad agreement. In divorces, however, the court performs a special role to ensure agreements are “equitable and legally sufficient” pursuant to the mandates of the applicable divorce statutes.8 As such, agreements entered by the parties are not binding on the divorce court, but only evidential in value.9

In Pless, the parties previously entered into a legal separation agreement in 2009 but, in 2016, the husband sought an absolute divorce which was ultimately granted. In the 2009 separation agreement, the husband agreed to alimony in futuro at a fixed amount. When he filed for divorce, the husband asked the trial court to adjudicate the issue of alimony which it did, ultimately granting alimony in a substantially lower amount than the legal separation agreement specified.10 Reviewing previous decisions of the Tennessee Supreme Court related to this issue, the Court in Pless noted that agreements for legal separation reached under Tenn. Code Ann. § 36-4-102 are usually “not regarded as a final decree in the sense said decree upon petition of the party to whom it was awarded and proper showing may be changed, amended or modified as justice and equity may require.”11

In Pless, the wife sought to distinguish her situation and noted that the specific language of the separation agreement, as it related to alimony, stated the alimony could not be modified and, as a valid contract, should be adopted by the trial court as a resolution to the issue under the final divorce decree.12 When analyzing this factual scenario, the court reviewed two unpublished cases that addressed this particular situation, but had reached opposite conclusions. The first case being Joiner v. Joiner,13 after protracted litigation at the trial and appellate court levels, the trial court ultimately incorporated a legal separation agreement into its final decree without modification and over the objection of the wife. The trial court determined that no additional hearing or evidence was necessary to make its final determination as to alimony, and it deemed the terms of the legal separation agreement that the parties had previously agreed to sufficient.14 The Court of Appeals affirmed, stating that while it is typical for a court to hold an evidentiary hearing to adjudicate the issues in a divorce, given the circumstances of this case and the brief timing in between the legal separation agreement and the divorce, the terms of the legal separation agreement were “intended to be final.”15 Clearly, the legal separation agreement could be incorporated as the court’s final decree under some circumstances.

Contrary to this ruling, the Court of Appeals in Pless also analyzed a similar situation in Meriwether v. Meriwether16 wherein, the trial court incorporated the provisions of a legal separation agreement related to alimony, which had been adopted by the court in a decree of legal separation, into the final divorce decree reasoning that the matter had previously been adjudicated.17 The Court of Appeals in Meriwether, reversed this decision primarily because the judge approving the separation agreement was not the same judge adopting the separating agreement into the final decree of divorce. The Court of Appeals determined that the trial court issuing the decree of absolute divorce did not have the same amount of information that was available to the judge who adopted the legal separation decree, so an evidentiary hearing was necessary to comply with the statutory requirements for setting alimony.18 In support of this conclusion, the Court of Appeals noted that a legal separation “is generally considered a temporary arrangement to provide for the needs of the parties and to encourage reconciliation,” but if the situation ultimately leads “to an absolute divorce, a court should re-examine the support and property rights of the parties in light of the impending permanent dissolution.”19

Against this backdrop, the Court of Appeals in Pless analyzed the wife’s claims that the specific language of their legal separation agreement made explicit their intent for the alimony provisions to be free from modification versus the husband’s assertion that he never intended to have that agreement be final and it did not factor in the current state of the parties at the time of divorce, nor did it address all outstanding issues the parties had in the ultimate settlement of their marital estate. The Court of Appeals noted that while courts generally enforce contracts between parties, divorces present a special situation because of the statutorily prescribed role of the trial court to insure equity in the process and amongst the parties.20 Consequently, “agreements entered by the parties are not binding on the divorce court, but only evidential in value” when making a final determination.21 In its ultimate holding on the case, the Pless court reiterated that, upon a complaint for an absolute divorce, the trial court may revisit issues previously addressed in a legal separation agreement stating “[t]he fact that a legal separation had been granted nearly 10 years prior, without any evidentiary hearing concerning the parties’ finances, without any order indicating the previous trial judge’s intent to apply the Separation Agreement to a future divorce, and without any express finding that the alimony award was appropriate simply does not deprive the trial court of its ability to make such a determination.”22    

This case is instructive for the family law practitioner as it relates to legal separation agreements provided for pursuant to Tenn. Code Ann. § 36-4-102.  If it is common in your practice to have clients requesting legal separation agreements, or a situation where you would recommend them, for instance if reconciliation is a strong possibility, be aware that, absent very unusual circumstances, such an agreement will not bind the court should a divorce complaint require adjudication in the future. In all likelihood, it will be treated merely as an interim agreement and as another piece of evidence the court may use to make its final determination as to an equitable division of the estate as well as setting support regardless of the specific language contained therein.

Only a clear manifestation of the imminent nature of a divorce after entering a legal separation agreement would seem to trigger some form of binding agreement the trial court would then incorporate into a final decree as it did in Joiner. It should be used only as a stepping stone to either provide support while reconciliation is given a chance, or a guidepost for the terms of a final decree. 

MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.


NOTES
1. Tenn. Code Ann. § 36-4-102(a)
2. Tenn. Code Ann. § 36-4-102(c)
3. Tenn. Code Ann. § 36-4-102(d)
4. Full reference: Pless v. Pless, No. M2018-02047-COA-R3-CV, 2019 WL 4757621, (Tenn. Ct. App. Sept. 30, 2019).
5. Full reference: Joiner v. Joiner, No. M1999-01721-COA-R3-CV, 2001 Tenn. App. LEXIS 212, at *11-13 (Ct. App. Mar. 28, 2001)
6. Id. See also Pless at *26
7. Pless at *26
8. Id. at *30 quoting Gibbs v. Gibbs, 2016 Tenn. App. LEXIS 661, 2016 WL 4697433, at *4
9. Id. quoting Osborne v. Osborne, 29 Tenn. App. 463, 197 S.W.2d 234, 236 (Tenn. Ct. App. 1946)
10. Pless, at *1-3.
11. Abney v. Abney, 433 S.W.2d 847, 849 (Tenn. 1968)
12. Pless, at *2
13. Joiner v. Joiner, No. 01A01-9710-CH-00593, 1998 WL 426887 (Tenn. Ct. App. July 29, 1998)
14. Joiner at *2
15. Id.
16. Full reference: Meriwether v. Meriwether, (no Court of Appeals number assigned) (Tenn. Ct. App. Dec. 28, 1979)
17. Meriwether at 1-3
18. Id. at 4-5.
19. Id. at 6.
20. Pless at 13.
21. Id. citing Osborne v. Osborne, 197 S.W.2d 234, 236 (Tenn. Ct. App. 1946)
22. Id.

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