TBA Law Blog

Posted by: Helen Rogers & George Spanos on Apr 1, 2014

Journal Issue Date: Apr 2014

Journal Name: April 2014 - Vol. 50, No. 4

The conventional wisdom is that Tennessee has a six-month durational residency requirement for divorce pursuant to Tenn. Code Ann. §36-4-104(a).[1] While that is correct, it is not always determinative.

There is a prevalent misperception among domestic attorneys that Tenn. Code Ann.. §36-4-104(a) does not just impose a strict durational residency requirement in certain situations, but that this durational residency requirement is in fact a prerequisite to file any divorce action in the state of Tennessee. It most certainly is not. There are situations where the durational residency requirement does not have to be met, despite the sound public policy behind it. The Tennessee Supreme Court’s decision of Carter v. Carter almost 110 years ago very bluntly stated the purpose of the durational residency requirement, which was two years at that time, when it stated

The purpose of this section was to prevent this state from being made a dumping ground for the marital scandals of other states, and so to protect the people of this state, to a degree, from the demoralizing influence that must be experienced by any community which opens its courts without restraint to the class of cases referred to.[2] [Emphasis added.]

Quite frankly, Tennesseans did not want their tax dollars footing the bill for its courts to hear marital problems of parties from other states. Yet, the Tennessee Supreme Court’s decision in Carter went on to say that:

A divorce may be granted for any of the aforesaid causes, though the acts complained of were committed out of the state, or the petitioner resided out of the state at the time, no matter where the other party resides, if the petitioner has resided in this state two years next preceding the filing of the petition.

The Court of Chancery Appeals was of opinion that the provision requiring two years’ residence prior to the filing of the bill applied only to cases wherein the grounds for divorce arose out of the state.

We are of the opinion that this is a correct construction of the section of the Code referred to.[3] [Emphasis added.]

Clearly, there is a litmus test in determining when a divorce can be filed in Tennessee. The first prong lies in the location of the grounds for divorce listed in Tenn. Code Ann. §36-4-101 and not in the six-month durational residency requirement. The most important question to ask a new client is simply “Why are you seeking a divorce?” Essentially, what are the grounds your client wants to rely on to obtain a divorce? The state of Tennessee’s public policy decision to not foot the bill for nonresidents to file for divorce in Tennessee was never meant to block or delay new residents in the state from obtaining relief from their spouse who committed an act or acts within Tennessee that constitute grounds for divorce. The Tennessee Supreme Court clearly explained this notion in Carter where it stated:

[I]t could never have been intended that two years’ grace was to be allowed to all offenders against marital duty, even though their acts should be committed in this state, and against citizens of this state, as must be maintained under the opposite construction.[4]

This decision, while not widely known, did not fade into obscurity. In fact, this point of law has never been overturned but has been propagated by the courts of this state throughout the years. In 1915, the Tennessee Supreme Court’s decision in Fitzpatrick v. Fitzpatrick[5] cited its prior opinion in Carter stating:

If facts sufficient for the purpose occurred in this state, the divorce could be properly granted, although the complainant had not resided in the state for two years.[6]

This point of law was again relied upon by the Tennessee Court of Appeals in 1945 in that court’s decision in McFerrin v. McFerrin.[7] It was later agreed with and cited in the Court of Appeals’ 1951 decision of Holman v. Holman[8] and again in the same court’s 1958 opinion of Murrell v. Murrell.[9] Admittedly, the statutory schemes and the statute numbers have changed over the years as this interpretation has been utilized, but this point of law has never been overturned. More recently, the Tennessee Court of Appeals’ 1995 unreported opinion in the matter of Barnes v. Barnes[10] clearly followed the Carter decision and its progeny by stating:

As noted by the chancellor, the six months’ residency requirement applies where the grounds for divorce arose outside of Tennessee. In the case at bar, there is proof of Husband’s inappropriate conduct that occurred in Tennessee.[11]

The question that appears to be the most important in this analysis is “Why are you seeking a divorce?” However, this question also raises the biggest issue to the analysis. Obviously not all grounds for divorce are the same. Some grounds are clear and easy to establish. Your client may have lived in Tennessee for two weeks when some type of physical abuse occurred or his or her spouse may have committed adultery within the state. The problems may have also occurred in your client’s previous domicile, but if they occur even once in Tennessee, while your client is a domiciliary of the state, you can file for divorce even if they have only been in the state for a few days or weeks.

What do you do when the grounds are not as clear or as easy to establish as verbal or physical abuse or adultery? There are, after all, 15 separately listed grounds for divorce found in Tenn. Code Ann. §36-4-101. The 1951 decision by the Tennessee Court of Appeals of Holman, a progeny from the Tennessee Supreme Courts 1904 Carter v. Carter decision, provides the necessary answer to this analysis. In this decision, the Tennessee Court of Appeals drew a distinction between grounds that are “continuing” and those that are “non-continuing.”[12]

The Holman decision further clarified that grounds that are “non-continuing in character” are defined as grounds whose acts are complete once the fault has occurred because the cause of action then exists or has been established. Examples of non-continuing grounds for divorce could be a single act of adultery, single instance of abuse, or committing a crime that the spouse was convicted of. These grounds that are non-continuing in character invoke the durational residency requirement of Tenn. Code Ann. §36-4-104(a). Therefore, the plaintiff spouse must have resided within this state for the required period of six months prior filing, in order to rely on such acts to prove grounds for divorce.[13]

The Holman decision goes on to define grounds that are “continuing in character” as grounds that continue to exist once the fault has arisen. These are the grounds that attorneys frequently hear when they meet with new clients, such as they have finally reached their breaking point because of verbal abuse, the constant fighting, repeated threats, and/or breaking yet another promise. In fact habitual drunkenness and drug use[14] and abandonment by a spouse who continually fails to support the plaintiff spouse despite the ability to do so[15] are also grounds for divorce in Tennessee and appear to be ones that could be viewed as continuing in nature by their very definition. If the plaintiff spouse is domiciled in Tennessee and the other party continues the act while the plaintiff is in the state of Tennessee, then the plaintiff may rely upon those acts that are “continuing in character” as grounds for divorce.[16]

When grounds for divorce are continuing in character, clients will be able to file for divorce in this state, despite their recent move. The client does not have to be advised to wait for six months to have passed prior to filing any legal action, and have to risk their spouse filing in the previous domicile. While most attorneys practicing in family law are rarely surprised by what they hear, they are rarely told the same story twice. Grounds continuing in nature can vary based on the circumstances, but are present more often than many attorneys believe.

This is the point when an attorney can fall back onto the residency requirement. If the grounds did not occur in Tennessee and are not continuing in character, a potential client must have six-month residency established in Tennessee. If the grounds did occur in this state or are continuing in nature, then you can move to the second step of the analysis: When did my client establish his or her domicile in this state?

It must be established that your client was a resident of the state. In fact, the word domicile is more properly suited for this analysis. The Tennessee Supreme Court has very clearly defined how one becomes a domiciliary in a new state, and this goes back to Old English law. In its decision of Denny v. Sumner County, the Tennessee Supreme Court stated:

To constitute a change from a domicile to another domicile of choice, as is claimed in the instant case, three things are essential: (a) Actual residence in the other or new place; (b) an intention to abandon the old domicile; and (c) an intention of acquiring a new one at the other place.[17] [Emphasis added.]

Determining one’s domicile is and always will be a fact-specific analysis, but one the Tennessee Supreme Court has simplified. If you can show that your client moved to Tennessee and intended for this state to be his or her home and had no desire to return to the previous home state, you are well on your way to filing for divorce in Tennessee. However this clearly depends on whether you can show grounds also occurred here.

Despite these hurdles, it is often appropriate to file for divorce in Tennessee based on the factual circumstances of your client’s case. However, there is one issue that has to be considered and adjudicated concurrently with the Carter holding: What role does the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)[18] play in your client’s case? Obviously, this only arises when your client has minor children of the marriage; however, it must be complied with in order to obtain proper relief, and while grounds for divorce may have occurred in Tennessee, Tennessee may not be found to be the child’s home state.

Courts are not likely to assert jurisdiction over a divorce case when there is a minor child involved, regardless of the decision in Carter, unless the court can also assert jurisdiction over the minor child. Tenn. Code Ann. §36-6-216[19] provides for how a court may assert jurisdiction over a minor child in any proceeding that will involve the custody of the minor child. However, even if the minor child’s prior home state appears to have a claim for jurisdiction over the minor child, the opposing spouse would need to commence the proper court action in the prior domicile. For practical purposes, a court of this state would prefer not to dismiss a suit based on the UCCJEA on the basis of a foreign state having jurisdiction, if the opposing party was not attempting to assert jurisdiction there. Otherwise, a spouse could obtain a dismissal in this state based on the UCCJEA, and then simply file as the plaintiff here at a later time in order to obtain an advantage.

Even if the opposing spouse files a competing divorce petition in the state of his or her prior domicile, there may still be good cause to have the divorce heard in this state. Tenn. Code Ann. §36-6-213[20] permits courts in different states to communicate with one another to determine the proper jurisdiction for minor children. Parties are allowed to present facts and legal argument on the issue to help the courts determine the proper jurisdiction as part of that discussion. This is likely to be a very fact-driven scenario.

Additionally, Tenn. Code Ann. §36-6-215[21] permits Tennessee courts to require courts in other jurisdictions to hold evidentiary hearings regarding the jurisdictional disputes and issue orders necessary to have witnesses appear, and for testimony and other evidence to be produced. Tennessee courts are further permitted to consider whether the jurisdiction is convenient based on the distance to travel, whether domestic violence has occurred, location of witnesses, the financial circumstances of the parties, and several additional factors specified in Tenn. Code Ann. §36-6-222.[22] While the UCCJEA adds to the complexity of filing for divorce in the state when minor children are involved, it should not always prevent a case from being filed in this state.

The relatively obscure decision from Carter, established almost 110 years ago, has very clear and serious implications for any attorney who practices in the field of domestic law. Grounds for divorce that arise between residents of this state were never intended to be blocked by the durational residency requirement and cause a spouse to suffer and be unable to file for or obtain a divorce. The key in being able to help your client is found in the acts giving rise to grounds for divorce, specifically, where the acts occurred. The UCCJEA may add a layer of complexity, but will not cause your petition to be dismissed at the outset of the case. If your client’s spouse committed an act constituting a ground for divorce while your client was domiciled in Tennessee, your client can get the relief they may be desperately seeking.


  1. Tenn. Code Ann. §36-4-104(a) states, “A divorce may be granted for any of the causes referenced in § 36-4-101 if the acts complained of were committed while the plaintiff was a bona fide resident of this state or if the acts complained of were committed out of this state and the plaintiff resided out of the state at the time, if the plaintiff or the defendant has resided in this state six (6) months next preceding the filing of the complaint.”
  2. Carter v. Carter, 82 S.W. 309, 309 (Tenn. 1904). Emphasis added.
  3. Id. Emphasis added.
  4. Carter v. Carter at 309-10.
  5. Fitzpatrick v. Fitzpatrick, 173 S.W. 444 (Tenn. 1915).
  6. Fitzpatrick, 173 S.W. 444 at 45 (Citing Carter, 82 S.W. at 309).
  7. McFerrin v. McFerrin, 191 S.W.2d 946 (Tenn. Ct. App. 1945).
  8. Holman v. Holman, 244 S.W.2d 618 (Tenn. Ct. App. 1951).
  9. Murrell v. Murrell, 323 S.W.2d 15 (Tenn. Ct. App. 1958).
  10. Barnes v. Barnes, 1995 WL 114171 (Tenn.Ct.App.1995); rehearing denied; no perm. app. filed.
  11. Barnes v. Barnes at *3.
  12. Holman v. Holman at 280.
  13. See Id.
  14. Tenn. Code Ann. §36-4-101(a)(10).
  15. Tenn. Code Ann. §36-4-101(a)(12).
  16. See Id. at 280-81.
  17. Denny v. Sumner County, 184 S.W. 14, 16 (Tenn. 1916). Emphasis added.
  18. Tenn. Code Ann. §36-6-201 et. seq.
  19. Tenn. Code Ann. §36-6-216 is titled “Initial custody determination; jurisdiction.”
  20. Tenn. Code Ann. §36-6-213 is titled “Communication between court and parties.”
  21. Tenn. Code Ann. §36-6-215 is titled “Court Requests.”
  22. Tenn. Code Ann. §36-6-222 is titled “Declining to exercise jurisdiction; inconvenient forum.”

HELEN SFIKAS ROGERS HELEN SFIKAS ROGERS is a certified civil trial specialist and a Rule 31 mediator. She is also trained in collaborative law, and served for five years on the hearing panel for the Board of Professional Responsibility. Rogers is vice-chair of the Family Law Section of the Tennessee Bar Association and in the Bar Register of Preeminent Attorneys for Martindale Hubbell. She is a principal of the firm of Rogers, Kamm & Shea, with locations in midtown Nashville and Franklin, Tenn.



GEORGE D. SPANOS GEORGE D. SPANOS is an associate with Rogers, Kamm & Shea. He is a graduate of the Nashville School of Law and is a member of the Belmont University College of Law American Inn of Court.