36-4-101. Grounds for divorce from bonds of matrimony. —

(a)  The following are causes of divorce from the bonds of matrimony:

     (1)  Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;

     (2)  Either party has knowingly entered into a second marriage, in violation of a previous marriage, still subsisting;

     (3)  Either party has committed adultery;

     (4)  Willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year;

     (5)  Being convicted of any crime that, by the laws of the state, renders the party infamous;

     (6)  Being convicted of a crime that, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary;

     (7)  Either party has attempted the life of the other, by poison or any other means showing malice;

     (8)  Refusal, on the part of a spouse, to remove with that person's spouse to this state, without a reasonable cause, and being willfully absent from the spouse residing in Tennessee for two (2) years;

     (9)  The woman was pregnant at the time of the marriage, by another person, without the knowledge of the husband;

     (10)  Habitual drunkenness or abuse of narcotic drugs of either party, when the spouse has contracted either such habit after marriage;

     (11)  The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct;

     (12)  The husband or wife has offered such indignities to the spouse's person as to render the spouse's position intolerable, and thereby forced the spouse to withdraw;

     (13)  The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide;

     (14)  Irreconcilable differences between the parties; and

     (15)  For a continuous period of two (2) or more years that commenced prior to or after April 18, 1985, both parties have lived in separate residences, have not cohabited as man and wife during such period, and there are no minor children of the parties.

(b)  A complaint or petition for divorce on any ground for divorce listed in this section must have been on file for sixty (60) days before being heard if the parties have no unmarried child under eighteen (18) years of age, and must have been on file at least ninety (90) days before being heard if the parties have an unmarried child under eighteen (18) years of age. The sixty-day or ninety-day period shall commence on the date the complaint or petition is filed.

[Code 1858, § 2448 (deriv. Acts 1819, ch. 20, § 2; 1835-1836, ch. 26, §§ 1, 2; 1841-1842, ch. 133, § 3; 1843-1844, ch. 176, § 1); Acts 1867-1868, ch. 63, § 1; 1867-1868, ch. 68, § 1; Shan., § 4201; mod. Code 1932, § 8426; Acts 1961, ch. 168, § 1; 1972, ch. 679, § 1; 1977, ch. 107, § 1; 1978, ch. 577, § 1; 1981, ch. 311, § 1; 1981, ch. 420, § 1; 1981, ch. 532, § 1; 1982, ch. 853, § 2; T.C.A. (orig. ed.), § 36-801(I); Acts 1985, ch. 178, § 1; 1989, ch. 393, § 1; 1998, ch. 1059, § 1; 2007, ch. 519, § 1.]

36-4-102. Legal separation. —

(a)  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 complaint 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. The other party may deny the existence of grounds for divorce but, unless the other party specifically objects to the granting of an order of legal separation, the court shall declare the parties to be legally separated.

(b)  If the other party specifically objects to legal separation, the court may, after a hearing, grant an order of legal separation, notwithstanding such objections if grounds are established pursuant to § 36-4-101. The court also has the power to grant an absolute divorce to either party where there has been an order of legal separation for more than two (2) years upon a petition being filed by either party that sets forth the original order for legal separation and that the parties have not become reconciled. The court granting the divorce shall make a final and complete adjudication of the support and property rights of the parties. However, nothing in this subsection (b) shall preclude the court from granting an absolute divorce before the two-year period has expired.

(c)  Legal separation shall not affect the bonds of matrimony but shall permit the parties to cease matrimonial cohabitation. 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.

(d)  Notwithstanding this section, a party who can establish grounds for divorce from the bonds of matrimony pursuant to § 36-4-101 shall be entitled to an absolute divorce pursuant to the provisions of this chapter.

[Code 1858, § 2449 (deriv. Acts 1835-1836, ch. 26, § 19; 1841-1842, ch. 133, § 1); Shan., § 4202; Acts 1919, ch. 70, § 1; mod. Code 1932, § 8427; Acts 1963, ch. 283, § 1; 1967, ch. 284, § 1; T.C.A. (orig. ed.), § 36-802; Acts 1989, ch. 489, § 1; 1998, ch. 1059, § 2.]

36-4-103. Irreconcilable differences — Procedure. —

(a)  (1)  In all divorces sought because of irreconcilable differences between the parties, if the defendant is a nonresident, personal service may be effectuated by service upon the secretary of state pursuant to the provisions of § 20-2-215.

     (2)  In lieu of service of process, the defendant may enter into a written notarized marital dissolution agreement with plaintiff that makes specific reference to a pending divorce by a court and docket number, or states that the defendant is aware that one will be filed in this state and that the defendant waives further service and waives filing an answer to the complaint. Such waiver of service shall be valid for a period of one hundred eighty (180) days from the date the last party signs the agreement. The agreement may include the obligation and payment of alimony, in solido or in futuro, to either of the parties, any other provision of the law notwithstanding. The signing of such an agreement shall be in lieu of service of process for the period such waiver is valid and shall constitute a general appearance before the court and answer that shall give the court personal jurisdiction over the defendant, and constitute a default judgment for the purpose of granting a divorce on the grounds of irreconcilable differences.

     (3)  No divorce heretofore granted shall be invalid because the agreement was signed and notarized or acknowledged prior to filing under prior law before the action was filed.

(b)  No divorce shall be granted on the ground of irreconcilable differences unless the court affirmatively finds in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the equitable settlement of any property rights between the parties. If the court does not affirmatively find that the agreement is sufficient or equitable, the cause shall be continued by the court to allow further disposition by the petitioner. If both parties are present at the hearing, they may, at that time, ratify any amendments the court may have to the agreement. The amended agreement shall then become a part of the decree. The agreement shall be incorporated in the decree or incorporated by reference, and such decree may be modified as other decrees for divorce.

(c)  (1)  Bills for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard if the parties have no unmarried child under eighteen (18) years of age, and must have been on file at least ninety (90) days before being heard if the parties have an unmarried child under eighteen (18) years of age. The sixty-day or ninety-day period bills for divorce that must be on file shall commence on the date the original bill was filed and not on the date the bill was amended to include the ground of irreconcilable differences.

     (2)  A divorce decree or order issued prior to March 22, 1996, in which the hearing for such divorce occurred before the specified time periods required by this subsection (c), shall remain valid and the parties shall remain divorced. Likewise, all other issues resolved in the divorce decree, order or agreement, such as distribution of marital property, alimony, child support and custody, shall remain valid and in full force and effect.

(d)  (1)  A bill of complaint for divorce where the respondent has been personally served or acknowledged as set out in subsection (a), which includes the ground of irreconcilable differences, may be taken as confessed and a final decree entered thereon, as in other cases and without corroborative proof or testimony, the provisions of §§ 36-4-107 and 36-4-114 to the contrary notwithstanding.

     (2)  For purposes of this section, ?without corroborative proof or testimony? means that the petitioner shall not be required to testify as to the material facts constituting irreconcilable differences or any attempts to reconcile such differences.

(e)  If there has been a contest or denial of the grounds of irreconcilable differences, no divorce shall be granted on the grounds of irreconcilable differences. However, a divorce may be granted on the grounds of irreconcilable differences where there has been a contest or denial, if a properly executed marital dissolution agreement is presented to the court.

(f)  Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in § 36-4-101or § 36-4-102.

(g)  Notwithstanding any law to the contrary requiring mediation, the filing with the court of a properly executed marital dissolution agreement and, if there are minor children of the marriage, a properly executed parenting plan shall serve to remove any requirement that the parties shall attend mediation. If the court does not approve either the marital dissolution agreement or the parenting plan, then any requirement to attend mediation shall be reinstated as of the date of the court's rejection of either agreement.

[Code 1858, § 2448 (deriv. Acts 1819, ch. 20, § 2; 1835-1836, ch. 26, §§ 1, 2; 1841-1842, ch. 133, § 3; 1843-1844, ch. 176, § 1); Acts 1867-1868, ch. 63, § 1; 1867-1868, ch. 68, § 1; Shan., § 4201; mod. Code 1932, § 8426; Acts 1961, ch. 168, § 1; 1972, ch. 679, § 1; 1977, ch. 107, § 1; 1978, ch. 577, § 1; 1981, ch. 311, § 1; 1981, ch. 420, § 1; 1981, ch. 532, § 1; 1982, ch. 853, § 2; T.C.A. (orig. ed.), § 36-801(II); Acts 1987, ch. 390, §§ 3, 4; 1989, ch. 489, §§ 2, 3; 1991, ch. 234, § 1; 1996, ch. 655, § 2; 1998, ch. 1059, § 4; 2008, ch. 868, § 1.]

36-4-104. Residence requirements. —

(a)  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.

(b)  For the purposes of this section, any person in the armed services of the United States, or the spouse of any such person, who has been living in this state for a period of not less than one (1) year shall be presumed to be a resident of this state, and the presumption of residence shall be overcome only by clear and convincing evidence of a domicile elsewhere.

[Code 1858, § 2450 (deriv. Acts 1799, ch. 19, § 7; 1835-1836, ch. 26, § 1; 1839-1840, ch. 54, § 1; 1845-1846, ch. 67, § 1); Shan., § 4203; Code 1932, § 8428; Acts 1957, ch. 274, § 1; 1971, ch. 363, § 1; 1973, ch. 219, § 1; 1976, ch. 548, § 1; T.C.A. (orig. ed.), § 36-803.]

36-4-105. Venue. —

(a)  The bill or petition may be filed in the proper name of the complainant, in the chancery or circuit court or other court having divorce jurisdiction, in the county where the parties reside at the time of their separation, or in which the defendant resides, if a resident of the state; but if the defendant is a nonresident of the state or a convict, then in the county where the applicant resides.

(b)  Any divorce granted prior to May 4, 1967, will not be deemed void solely on the ground that the parties to the divorce action were residents of a county or counties other than the county in which the divorce decree was entered.

[Code 1858, § 2451 (deriv. Acts 1835-1836, ch. 26, § 3); Acts 1859-1860, ch. 88; Shan., § 4204; Code 1932, § 8429; Acts 1961, ch. 180, § 1; 1963, ch. 153, § 1; 1967, ch. 185, § 1; 1971, ch. 363, § 2; T.C.A. (orig. ed.), § 36-804.]

36-4-106. Contents of petition for divorce and legal separation. —

(a)  (1)  The complaint for divorce shall set forth the grounds for the divorce in substantially the language of § 36-4-101 or § 36-4-102, and pray only for a divorce from the defendant, or for a divorce and such other and further relief to which the complainant may think to be entitled. In cases wherein an answer is filed, the court shall, on motion of the defendant, require the complainant to file a bill of particulars, setting forth the facts relied on as grounds for the divorce, with reasonable certainty as to time and place.

     (2)  The complaint for legal separation shall set forth the grounds for legal separation in substantially the language of § 36-4-101, and pray for such further relief to which the complainant is entitled. In all cases where an answer is filed, the court shall, on motion of the defendant, require the complainant to file a bill of particulars, stating the facts relied on as a ground for legal separation, with reasonable certainty as to time and place.

(b)  (1)  The complainant shall also allege the full name of the husband, the full maiden name of the wife, their mailing addresses, dates and places of their birth, race or color of each spouse, number of previous marriages of each spouse, date and place of the marriage of the parties, the number of their children who are minors at the time of the filing of the complaint, and any other litigation concerning the custody of those children in this or any other state in which either party has participated, as specified in § 36-6-210 [repealed]. Further, at the time a complaint or pleading is filed under this part, the filing party shall, simultaneously with the initial complaint or pleading filed by that party, file with the clerk a separate document that contains the full names and social security numbers, current mailing addresses and dates of birth of the husband, the wife, and those of all children born of the marriage. The filing party shall provide to the clerk one (1) eight and one-half inch by eleven inch (8½² x 11²) envelope labeled with the names of the parties, which shall be marked with the docket number. The clerk shall file stamp the document and the envelope, store the document in the envelope, which shall be sealed, and place the sealed envelope in the case file. The social security numbers and other information filed with the clerk shall be available to the clerk of court for processing of documents and legal actions such as, but not limited to, divorce certificates, garnishments, and income assignments. On request, the sealed information shall be made available to the department of human services and any other agency required by law to have access to the information, and to other persons or agencies as ordered by the court. It shall be mandatory that every complaint filed under this chapter shall contain the foregoing information or that such information is provided by the parties and is contained in the court's records as described above prior to the entry of the final decree of divorce, unless it can be shown to the satisfaction of the court that such information could not be obtained by the complainant or petitioner by exercising due diligence or after the court has granted a reasonable time to amend the complaint. In lieu of a mailing address, either party may designate an agent for the service of process throughout the proceedings and, except as provided in subdivision (b)(2), the name and address of such agent shall be the only address used for the designating party in all petitions, pleadings, motions and orders relating to such divorce action.

     (2)  If the complainant or the defendant shows to the satisfaction of the court in which the petition is filed that the residential address of the other party is relevant and necessary in order to prove the allegations contained in the complaint or to ascertain information necessary to determine value and/or ownership of property, or to ascertain other data necessary to evaluate and agree upon a property division or custody or defend against such allegations, the court may order either party to reveal such residential address to the other party.

     (3)  If the complainant elects to designate an agent for service of process in lieu of the mailing address as authorized by this subsection (b) but does not designate a specific person, the complainant's attorney shall be deemed the complainant's agent for service of process.

(c)  Notwithstanding any other provision of the law to the contrary, the plaintiff or other party shall not be required in those counties having a divorce proctor to file an affidavit swearing that the defendant is not in the military service where:

     (1)  The complaint states facts that would make the defendant ineligible for military service; or

     (2)  The residence address of the defendant is set forth in the complaint, and:

          (A)  The defendant has been personally served with service of process, or has been mailed a copy of the complaint by a divorce proctor;

          (B)  The defendant has actual notice of the commencement of the suit;

          (C)  Proof of mailing to the defendant of notice of the suit is exhibited to the court; or

          (D)  The defendant is represented by an attorney.

(d)  Upon the filing of a petition for divorce or legal separation, and upon personal service of the complaint and summons on the respondent or upon waiver and acceptance of service by the respondent, the following temporary injunctions shall be in effect against both parties until the final decree of divorce or order of legal separation is entered, the petition is dismissed, the parties reach agreement, or until the court modifies or dissolves the injunction, written notice of which shall be served with the complaint:

     (1)  (A)  An injunction restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property. Nothing herein is intended to preclude either of the parties from seeking broader injunctive relief from the court.

          (B)  Expenditures from current income to maintain the marital standard of living and the usual and ordinary costs of operating a business are not restricted by this injunction. Each party shall maintain records of all expenditures, copies of which shall be available to the other party upon request.

     (2)  An injunction restraining and enjoining both parties from voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy, including, but not limited to, life, health, disability, homeowners, renters, and automobile, where such insurance policy provides coverage to either of the parties or the children, or that names either of the parties or the children as beneficiaries without the consent of the other party or an order of the court. ?Modifying? includes any change in beneficiary status.

     (3)  An injunction restraining both parties from harassing, threatening, assaulting or abusing the other and from making disparaging remarks about the other to or in the presence of any children of the parties or to either party's employer.

     (4)  An injunction restraining and enjoining both parties from hiding, destroying or spoiling, in whole or in part, any evidence electronically stored or on computer hard drives or other memory storage devices.

     (5)  An injunction restraining both parties from relocating any children of the parties outside the state of Tennessee, or more than one hundred (100) miles from the marital home, without the permission of the other party or an order of the court, except in the case of a removal based upon a well-founded fear of physical abuse against either the fleeing parent or the child. In such cases, upon request of the nonrelocating parent, the court will conduct an expedited hearing, by phone conference if appropriate, to determine the reasonableness of the relocation and to make such other orders as appropriate.

     (6)  The provisions of these injunctions shall be attached to the summons and the complaint and shall be served with the complaint. The injunctions shall become an order of the court upon fulfillment of the requirements of this subsection (d). However, nothing in this subsection (d) shall preclude either party from applying to the court for further temporary orders, an expanded temporary injunction, or modification or revocation of this temporary injunction.

     (7)  The temporary injunctions provided in this section shall only apply to the spousal parties named in the petition and shall not apply to any third party named in the petition; provided, however, that nothing in this subsection (d) shall preclude any party from applying to the court for an order of injunctive or extraordinary relief against any other party named in any petition as provided by law or rule.

[Code 1858, § 2452 (deriv. Acts 1835-1836, ch. 26, §§ 3, 18); Shan., § 4205; mod. Code 1932, § 8430; Acts 1957, ch. 46, § 1; 1957, ch. 74, § 1; 1971, ch. 50, § 1; 1971, ch. 437, § 1; T.C.A. (orig. ed.), § 36-805; Acts 1987, ch. 36, § 1; 1994, ch. 975, §§ 1-3; 1997, ch. 544, § 1; 1997, ch. 551, § 31; 1998, ch. 1059, §§ 8-10; 2001, ch. 280, § 1; 2002, ch. 565, § 1; 2007, ch. 187, §§ 1-3; 2009, ch. 280, § 1.]

36-4-107. Verification of petition — Effect of noncompliance. —

(a)  The bill or petition, except those seeking a divorce from the bonds of matrimony on the grounds of irreconcilable differences, shall be verified by an affidavit, upon oath or affirmation, before a general sessions court judge, notary public or the judge or clerk of the court, or as provided in §§ 58-1-605 — 58-1-607, that the facts stated in the bill are true to the best of the complainant's knowledge and belief for the causes mentioned in the bill. The authority conferred in §§ 58-1-605 — 58-1-607 may be exercised beyond the continental limits of the United States.

(b)  If the issue of whether the affidavit contains the complainant's verification that the complaint is not made out of levity or in collusion with the defendant is not raised at trial, each party waives the right to contest such issue on appeal.

(c)  A divorce decree or order issued prior to March 22, 1996, in which the bill or petition for such divorce did not include the affidavit of verification required by this section shall remain valid and the parties shall remain divorced. Likewise, all other issues resolved in the divorce decree, order or agreement, such as distribution of marital property, alimony, child support and custody, shall remain valid and in full force and effect.

[Code 1858, § 2453 (deriv. Acts 1835-1836, ch. 26, § 4); Shan., § 4206; mod. Code 1932, § 8431; Acts 1953, ch. 174, § 1; modified; impl. am. Acts 1957, ch. 320, § 2; 1977, ch. 107, § 3; T.C.A. (orig. ed.), § 36-806; 1996, ch. 655, § 1; 1996, ch. 872, § 1.]

36-4-108. Security for costs — Service of process. —

(a)  The complainant, upon giving security for costs, or otherwise complying with the law, shall have the usual process to compel the defendant to appear and answer the bill, or it may be taken for confessed, as in other chancery cases.

(b)  In actions for annulment of marriage, service on the defendant may be by subpoena or by publication as in divorce cases.

[Code 1858, § 2454 (deriv. Acts 1831, ch. 20, § 1; 1835-1836, ch. 26, §§ 3, 18; 1841-1842, ch. 133, § 3); Shan., § 4207; mod. Code 1932, § 8432; Acts 1957, ch. 100, § 1; T.C.A. (orig. ed.), §§ 36-807, 36-834.]

36-4-109. Time for hearing. —

If the subpoena to answer has been served upon the defendant, or if publication has been completed as required by law, the cause may be set for hearing and tried at the first term of court thereafter.

[Code 1858, § 2455 (deriv. Acts 1841-1842, ch. 133, § 3); Shan., § 4208; Code 1932, § 8433; Acts 1933, ch. 156, § 1; C. Supp. 1950, § 8433; T.C.A. (orig. ed.), § 36-808.]

36-4-110. Appearance and answer. —

The defendant may appear according to the rules of the court and answer the bill upon oath or affirmation.

[Code 1858, § 2457 (deriv. Acts 1835-1836, ch. 26, § 5); Shan., § 4210; Code 1932, § 8435; T.C.A. (orig. ed.), § 36-810.]

36-4-111. Failure to separate not a defense. —

It is no impediment to a divorce that the offended spouse did not leave the marital domicile or separate from the offending spouse on account of the conduct of the offending spouse.

[Acts 1977, ch. 107, § 2; T.C.A., § 36-809.]

36-4-112. Defense when ground is adultery. —

If the cause assigned for the divorce is adultery, it is a good defense and perpetual bar to the same if the defendant alleges and proves that:

     (1)  The complainant has been guilty of like act or crime;

     (2)  The complainant has admitted the defendant into conjugal society and embraces after knowledge of the criminal act;

     (3)  The complainant, if the husband, allowed the wife's prostitutions and received hire for them; or

     (4)  The husband exposed the wife to lewd company, whereby the wife became ensnared to the act or crime of adultery.

[Code 1858, § 2460 (deriv. Acts 1835-1836, ch. 26, § 9); Shan., § 4213; mod. Code 1932, § 8438; T.C.A. (orig. ed.), § 36-811.]

36-4-113. Issues — Trial by jury — New trial. —

Issues may be made up at the request of either party upon matters of fact charged in the bill or petition and denied in the answer, and be tried by a jury in presence of the court, and a new trial may be granted of the issues, should the court deem it necessary.

[Code 1858, § 2458 (deriv. Acts 1835-1836, ch. 26, § 5); Shan., § 4211; Code 1932, § 8436; T.C.A. (orig. ed.), § 36-812.]

36-4-114. Proof required. —

If the defendant admits the facts charged in the bill or petition and relied upon as the ground for a divorce, or the bill is taken for confessed, the court shall, nevertheless, before decreeing a divorce, except a divorce on the ground of irreconcilable differences, hear proof of the facts alleged as aforementioned, and either dismiss the bill or petition or grant a divorce, as the justice of the case may require.

[Code 1858, § 2459 (deriv. Acts 1835-1836, ch. 26, § 6); Shan., § 4212; mod. Code 1932, § 8437; Acts 1977, ch. 107, § 4; T.C.A. (orig. ed.), § 36-813.]

36-4-115. Form of proof. —

Either party may take proof by depositions according to the rules or orders of the court, or have the witnesses examined in open court at pleasure.

[Code 1858, § 2462 (deriv. Acts 1835-1836, ch. 26, § 22); Shan., § 4215; mod. Code 1932, § 8440; T.C.A. (orig. ed.), § 36-814.]

36-4-116. Affidavits of proof not required — Sworn statements concerning financial matters required — Sworn statements as evidence. —

(a)  No judge or chancellor shall require the filing of affidavits of proof from witnesses, plaintiffs, defendants, or petitioners and respondents in support of any complaint for divorce, legal separation, separate maintenance or annulment.

(b)  Any such judge or chancellor may, however, require a sworn statement from such persons relative or pertaining to the income of the parties, their expenses, any real or personal property in which the parties have an interest and the extent of such parties' interest therein, and such sworn statement shall be admissible as evidence of the truth of the contents.

[Acts 1982, ch. 640, § 1; T.C.A., § 36-839; Acts 1991, ch. 273, § 39; 1998, ch. 1059, § 3.]

36-4-117. Proof when ground is spouse's refusal to remove to this state. —

If the divorce is sought by the complainant spouse on the ground of the defendant spouse's refusal to remove with the complainant spouse to this state, and of the defendant spouse's willful absence for two (2) years without reasonable cause, the complainant spouse shall prove endeavors to induce the defendant spouse to live with the complainant spouse after the separation, and that the complainant spouse did not remove from the state where the complainant spouse resided for the purpose of obtaining a divorce.

[Code 1858, § 2463 (deriv. Acts 1835-1836, ch. 26, § 2); Shan., § 4216; Code 1932, § 8441; Acts 1982, ch. 853, § 3; T.C.A. (orig. ed.), § 36-815.]

36-4-118. Proof when ground is conviction of crime. —

The proof that the defendant is a convict, or is sentenced to the penitentiary, if that is the cause relied upon for the divorce, shall be by the record of the conviction and sentence.

[Code 1858, § 2464 (deriv. Acts 1841-1842, ch. 133, § 3); Shan., § 4217; Code 1932, § 8442; T.C.A. (orig. ed.), § 36-816.]

36-4-119. Decree of court generally. —

If, upon hearing the cause, the court is satisfied that the complainant is entitled to relief, it may be granted either by pronouncing the marriage void from the beginning, or by dissolving it forever and freeing each party from the obligations thereof, or by a separation for a limited time.

[Code 1858, § 2465 (deriv. Acts 1835-1836, ch. 26, §§ 7, 19); Shan., § 4218; Code 1932, § 8443; T.C.A. (orig. ed.), § 36-817.]

36-4-120. Decree of court in action brought under § 36-4-102. —

(a)  If the cause assigned for a divorce is that specified in § 36-4-101 (11), the defendant may make defense by alleging and proving the ill conduct of the complainant as a justifiable cause for the conduct complained of, and on making out the defense to the satisfaction of the court, the bill may be dismissed with or without costs, in the discretion of the court.

(b)  But if the court is of the opinion that the complainant is entitled to relief, it may be granted, according to the prayer of the bill, by annulling the marriage, or by ordering a separation, perpetual or temporary, or such other decree as the nature and circumstances of the case require.

[Code 1858, §§ 2466, 2467 (deriv. Acts 1835-1836, ch. 26, §§ 19, 20); Shan., §§ 4219, 4220; Code 1932, §§ 8444, 8445; T.C.A. (orig. ed.), §§ 36-818, 36-819; Acts 1998, ch. 1059, § 11.]

36-4-121. Distribution of marital property. —

(a)  (1)  In all actions for divorce or legal separation, the court having jurisdiction thereof may, upon request of either party, and prior to any determination as to whether it is appropriate to order the support and maintenance of one (1) party by the other, equitably divide, distribute or assign the marital property between the parties without regard to marital fault in proportions as the court deems just.

     (2)  In all actions for legal separation, the court, in its discretion, may equitably divide, distribute, or assign the marital property in whole or in part, or reserve the division or assignment of marital property until a later time. If the court makes a final distribution of marital property at the time of the decree of legal separation, any after-acquired property is separate property.

     (3)  To this end, the court shall be empowered to effectuate its decree by divesting and reinvesting title to such property and, where deemed necessary, to order a sale of such property and to order the proceeds divided between the parties.

          (A)  Any auction sale of property ordered pursuant to this section shall be conducted in accordance with the provisions of title 35, chapter 5.

          (B)  The court may order the provisions of title 35, chapter 5, to apply to any sale ordered by the court pursuant to this section.

          (C)  The court, in its discretion, may impose any additional conditions or procedures upon the sale of property in divorce cases as are reasonably designed to ensure that such property is sold for its fair market value.

(b)  For purposes of this chapter:

     (1)  (A)  ?Marital property? means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering an order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property.

          (B)  ?Marital property? includes income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage.

          (C)  ?Marital property? includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.

          (D)  As used in this subsection (b), ?substantial contribution? may include, but not be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine.

          (E)  Property shall be considered marital property as defined by this subsection (b) for the sole purpose of dividing assets upon divorce or legal separation and for no other purpose; and assets distributed as marital property will not be considered as income for child support or alimony purposes, except to the extent the asset will create additional income after the division.

     (2)  ?Separate property? means:

          (A)  All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986, as amended;

          (B)  Property acquired in exchange for property acquired before the marriage;

          (C)  Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);

          (D)  Property acquired by a spouse at any time by gift, bequest, devise or descent;

          (E)  Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and

          (F)  Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

(c)  In making equitable division of marital property, the court shall consider all relevant factors including:

     (1)  The duration of the marriage;

     (2)  The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;

     (3)  The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;

     (4)  The relative ability of each party for future acquisitions of capital assets and income;

     (5)  The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;

     (6)  The value of the separate property of each party;

     (7)  The estate of each party at the time of the marriage;

     (8)  The economic circumstances of each party at the time the division of property is to become effective;

     (9)  The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;

     (10)  The amount of social security benefits available to each spouse; and

     (11)  Such other factors as are necessary to consider the equities between the parties.

(d)  The court may award the family home and household effects, or the right to live therein and use the household effects for a reasonable period, to either party, but shall give special consideration to a spouse having physical custody of a child or children of the marriage.

(e)  (1)  The court may impose a lien upon the marital real property assigned to a party, or upon such party's separate real property, or both, as security for the payment of child support.

     (2)  The court may impose a lien upon the marital real property assigned to a party as security for the payment of spouse support or payment pursuant to property division.

(f)  (1)  If, in making equitable distribution of marital property, the court determines that the distribution of an interest in a business, corporation or profession would be contrary to law, the court may make a distributive award of money or other property in order to achieve equity between the parties. The court, in its discretion, may also make a distributive award of money or other property to supplement, facilitate or effectuate a distribution of marital property.

     (2)  The court may provide that any distributive award payable over a period of time be secured by a lien on specific property.

(g)  (1)  Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties regarding the division of property.

     (2)  Nothing in this section shall affect validity of an antenuptial agreement that is enforceable under § 36-3-501.

[Acts 1953, ch. 90, § 1 (Williams, § 8446); 1959, ch. 192, § 1; 1983, ch. 414, § 4; T.C.A. (orig. ed.), § 36-825; Acts 1984, ch. 590, § 1; 1986, ch. 722, § 2; 1987, ch. 122, § 1; 1987, ch. 390, § 6; 1988, ch. 682, § 1; 1988, ch. 735, § 1; 1988, ch. 841, §§ 1, 2; 1991, ch. 449, § 1; 2000, ch. 713, §§ 1-9; 2001, ch. 274, § 1; 2002, ch. 651, § 8.]

36-4-122. Costs. —

The court may decree costs against either party, and may award execution for the same, or, in case any estate is sequestered, or in the power of the court, or in the hands of a receiver, it may order the costs to be paid out of such property.

[Code 1858, § 2477 (deriv. Acts 1831, ch. 20, § 1; 1835-1836, ch. 26, §§ 17, 20, 21); Shan., § 4230; mod. Code 1932, § 8455; T.C.A. (orig. ed.), § 36-829.]

36-4-123. Appeals. —

Appeals in divorce cases shall be governed by the Tennessee Rules of Appellate Procedure. Pending appeal, orders and decrees of the trial court shall have the effect prescribed by the Tennessee Rules of Civil Procedure.

[Code 1958, § 3158; Shan., § 4890; Code 1932, § 9039; Acts 1970, ch. 595, § 1; 1981, ch. 449, § 2(23); T.C.A. (orig. ed.), § 36-830.]

36-4-124. Right to remarry. —

When a marriage is absolutely annulled, or dissolved, the parties shall severally be at liberty to marry again.

[Code 1858, § 2475 (deriv. Acts 1835-1836, ch. 26, § 7); Shan., § 4228; mod. Code, 1932, § 8452; Acts 1970, ch. 347, § 1; T.C.A. (orig. ed.), § 36-831.]

36-4-125. Legitimacy of children unaffected by divorce or annulment. —

The annulment or dissolution of the marriage shall not in any way affect the legitimacy of the children of the same.

[Code 1858, § 2476 (deriv. Acts 1835-1836, ch. 26, § 7); Shan., § 4229; mod. Code 1932, § 8453; T.C.A. (orig. ed.), § 36-832.]

36-4-126. Suspension of proceedings to attempt reconciliation — Revocation. —

(a)  During the pendency of any suit for absolute divorce, limited divorce or separate maintenance, the court having jurisdiction of the matter may, upon the written stipulation of both the husband and wife that they desire to attempt a reconciliation, enter an order suspending any and all orders and proceedings for such time as the court, in its discretion, may determine advisable under the circumstances, so as to permit the parties to attempt such reconciliation without prejudice to their respective rights. During the period of such suspension, the parties may resume living together as husband and wife and their acts and conduct in so doing shall not be determined a condonation of any prior misconduct.

(b)  Such suspension may be revoked upon motion of either party by order of the court.

[Acts 1965, ch. 329, § 1; T.C.A., § 36-836.]

36-4-127. Expunction of divorce records upon reconciliation of parties. —

Parties to any divorce proceeding, who have reconciled and dismissed their cause of action, may thereafter file an agreed sworn petition signed by both parties and notarized, requesting expunction of their divorce records. Upon the filing of such petition, the judge shall issue an order directing the clerk to expunge all records pertaining to such divorce proceedings, once all court costs have been paid. The clerk shall receive a fee of fifty dollars ($50.00) for performing such clerk's duties under this section.

[Acts 1981, ch. 435, § 1; T.C.A., § 36-838.]

36-4-128. Remarriage after spouse's two-year absence — Effect of spouse's return. —

(a)  If, upon a false rumor, apparently well founded, of the death of one (1) of the parties, who has been absent two (2) whole years, the other party marries again, the party remaining single may, upon returning, insist upon a restoration of conjugal rights or upon a dissolution of the marriage, and the court shall decree accordingly, to wit: that the first marriage shall stand and the second be dissolved, or vice versa.

(b)  Such bill or petition shall be filed within one (1) year after the return.

[Code 1858, § 2461 (deriv. Acts 1835-1836, ch. 26, § 8); Shan., § 4214; Code 1932, § 8439; T.C.A. (orig. ed.), § 36-833.]

36-4-129. Stipulated grounds and/or defenses — Grant of divorce. —

(a)  In all actions for divorce from the bonds of matrimony or legal separation the parties may stipulate as to grounds and/or defenses.

(b)  The court may, upon stipulation to or proof of any ground of divorce pursuant to § 36-4-101, grant a divorce to the party who was less at fault or, if either or both parties are entitled to a divorce or if a divorce is to be granted on the grounds of irreconcilable differences, declare the parties to be divorced, rather than awarding a divorce to either party alone.

[Acts 1989, ch. 543, § 1; 1998, ch. 1059, § 5; 2008, ch. 868, § 2.]

36-4-130. Mediation — Confidentiality of information and documents. —

(a)  When the parties to a divorce action mediate the dispute, the mediator shall not divulge information disclosed to the mediator by the parties or by others in the course of mediation. All records, reports, and other documents developed for the mediation are confidential and privileged.

(b)  Communications made during a mediation may be disclosed only:

     (1)  When all parties to the mediation agree, in writing, to waive the confidentiality of the written information;

     (2)  In a subsequent action between the mediator and a party to the mediation for damages arising out of the mediation;

     (3)  When statements, memoranda, materials and other tangible evidence are otherwise subject to discovery and were not prepared specifically for use in and actually used in the mediation;

     (4)  When the parties to the mediation are engaged in litigation with a third party and the court determines that fairness to the third party requires that the fact or substance of an agreement resulting from mediation be disclosed; or

     (5)  When the disclosure reveals abuse or neglect of a child by one (1) of the parties.

(c)  The mediator shall not be compelled to testify in any proceeding, unless all parties to the mediation and the mediator agree in writing.

[Acts 1993, ch. 245, § 1; 2007, ch. 519, § 2.]

36-4-131. Mediation — Waiver or extension — Domestic abuse. —

(a)  Except as provided in subsections (b), (c) and (d), in any proceeding for divorce or separate maintenance, the court shall order the parties to participate in mediation.

(b)  The court may waive or extend mediation pursuant to subsection (a) for reasons including, but not limited to:

     (1)  Any factor codified in § 36-6-409 (4);

     (2)  Either party is unable to afford the cost of the mediation, unless the cost is waived or subsidized by the state or if the cost of mediation would be an unreasonable burden on either or both of the parties;

     (3)  The parties have entered into a written marital dissolution agreement or an agreed order resolving all of the pending issues in the divorce, except as provided in subsection (c);

     (4)  The parties have participated in a settlement conference presided over by the court or a special master;

     (5)  The court finds a substantial likelihood that mediation will result in an impasse; or

     (6)  For other cause found sufficient by the court.

(c)  If the ground for the divorce is irreconcilable differences and the parties have filed with the court a properly executed marital dissolution agreement, and if there are minor children of the marriage, a properly executed parenting plan, the court shall not require the parties to attend mediation.

(d)  (1)  In any proceeding for divorce or separate support and maintenance, if an order of protection issued in or recognized by this state is in effect or there is a court finding of domestic abuse or any criminal conviction involving domestic abuse within the marriage that is the subject of the proceeding for divorce or separate support and maintenance, the court may order mediation or refer either party to mediation, only if:

          (A)  Mediation is agreed to by the victim of the alleged domestic or family violence;

          (B)  Mediation is provided by a certified mediator who is trained in domestic and family violence in a specialized manner that protects the safety of the victim; and

          (C)  The victim is permitted to have in attendance at mediation a supporting person of the victim's choice, including, but not limited to, an attorney or advocate. No victim may provide monetary compensation to a non-attorney advocate for attendance at mediation.

     (2)  Mediation conducted pursuant to subdivision (b)(1) shall be concluded and a report provided to the court no later than one hundred eighty (180) days from the date the complaint for divorce was filed.

[Acts 1997, ch. 350, § 1; 2007, ch. 519, § 3; 2008, ch. 994, § 1.]

36-4-132. Appointment of guardian ad litem. —

(a)  In an action for dissolution of marriage involving minor children, upon its own motion or upon the motion of either party, the court may appoint a guardian ad litem for any minor child of the marriage.

(b)  The reasonable fees or costs of the guardian ad litem shall be borne by the parties and may be assessed by the court as it deems equitable. Such fees or costs may be waived upon motion for an indigent person.

(c)  Any guardian ad litem appointed by the court pursuant to this section shall be presumed to be acting in good faith and in so doing shall be immune from any liability that might otherwise be incurred while acting within the scope of such appointment. Such immunity shall apply in all proceedings in which such guardian ad litem may act.

[Acts 1998, ch. 1059, § 6; 2000, ch. 736, § 1.]

36-4-133. Compliance with notice of insurance termination provisions required. —

On and after January 1, 2007, before entering an order or decree for a divorce or a legal separation under this title, the court shall determine that the appropriate spouse has complied with the provisions of § 56-7-2366, if applicable.. If the court determines that the notification process has not been followed, then the court shall consider requiring the insured or covered individual to provide a health care insurance policy for the former spouse.

[Acts 2006, ch. 764, § 2.]

36-4-134. Notice that the decree does not necessarily affect the ability of a creditor to proceed against a party or a party's property. — [Effective January 1, 2010.]

(a)  Every final decree of divorce granted on any fault ground of divorce and every marital dissolution agreement shall contain a notice that the decree does not necessarily affect the ability of a creditor to proceed against a party or a party's property, even though the party is not responsible under the terms of the decree for an account, any debt associated with an account or any debt. The notice shall also state that it may be in a party's best interest to cancel, close or freeze any jointly held accounts.

(b)  Failure to include the notice required by subsection (a) shall not affect the validity of the decree of divorce, legal separation or annulment.

[Acts 2009, ch. 157, § 1.]

36-5-101. Decree for support of children — Modification — Delinquencies — Standing to petition — Court costs and attorneys fees — Means of collection — Scientific parentage tests. —

(a)  (1)  Upon dissolution of a marriage, whether dissolved absolutely or by a perpetual or temporary decree of separation, the court may make an order and decree for the suitable support and maintenance of the children by either spouse or out of such spouse's property, according to the nature of the case and the circumstances of the parties, the order or decree to remain in the court's control.

     (2)  Courts having jurisdiction of the subject matter and of the parties are hereby expressly authorized to provide for the future support of the children, in proper cases, by fixing some definite amount or amounts to be paid in monthly, semimonthly, or weekly installments, or otherwise, as circumstances may warrant, and such awards, if not paid, may be enforced by any appropriate process of the court having jurisdiction, including levy of execution.

     (3)  In interstate cases, jurisdiction to modify, alter or enforce orders or decrees for the support of children shall be determined in accordance with the provisions of parts 20-29 of this chapter. In intrastate cases, jurisdiction to modify, alter or enforce orders or decrees for the support of children shall be determined in accordance with the provisions of parts 30 and 31 of this chapter.

     (4)  As used in this chapter, ?order,? where the context requires, includes an order concerning child or medical support issued pursuant to an administrative proceeding in any other state.

     (5)  In establishing or enforcing any duty of support under this chapter, the court shall give full faith and credit to all paternity determinations of any other state or territory, made pursuant to a voluntary acknowledgment or pursuant to any administrative or judicial process.

     (6)  A voluntary acknowledgment of paternity that is completed under the provisions of § >68-3-203(g), § 68-3-302, or § 68-3-305(b), or under similar provisions of another state or government, when certified by the state registrar or other governmental or institutional entity maintaining the record of the acknowledgment, shall be a basis for establishing a support order without requiring any further proceedings to establish paternity.

     (7)  The state of Tennessee, its officers, employees, agents or contractors, any counties, county officials, the clerks of any court, or any Title IV-D child support enforcement agency shall not be liable, in any case, to compensate any person for repayment of child support paid or for any other costs, as a result of the rescission pursuant to § 24-7-113 of any voluntary acknowledgment, or the rescission of any orders of legitimation, paternity, or support.

     (8)  When a court having jurisdiction determines child support pursuant to the Tennessee child support guidelines, based on either the actual income or the court's findings of an obligor's ability to earn income, the final child support order shall create an inference in any subsequent proceeding that the obligor has the ability to pay the ordered amount until such time as the obligor files an application with the court to modify the ordered amount.

(b)  (1)  Notwithstanding any other provision of law to the contrary, neither the department of human services, nor any Title IV-D child support contractor of the department, nor any recipient of public assistance in this or any other state or territory, nor any applicant for either public assistance in this or any other state or territory or for Title IV-D child support services from the department or any other Title IV-D agency in this or any other state or territory, shall be required to demonstrate to a court or administrative tribunal that the caretaker of the child for whom child support is sought is vested with any more than physical custody of the subject child or children, in order to have standing to petition for child support from the legal parent of the child or children for whom support is sought, or to seek enforcement or modification of any existing orders involving such child or children.

     (2)  Legal custody of a child to whom a child support obligation is owed shall not be a prerequisite to the initiation of any support action or to the enforcement or modification of any support obligation in such cases, whether or not the obligation has been assigned to this state or any other state or territory by operation of law.

(c)  (1)  The court shall set a specific amount that is due each month, to be paid in one (1) or more payments as the court directs. In making any decree or order pursuant to this section, the court shall consider the provisions of § 34-1-102(b). Unless the court finds otherwise, each order made under this section shall contain the current address of the parties.

     (2)  (A)  The order or decree of the court may provide that the payments for the support of such child or children shall be paid either to the clerk of the court or directly to the spouse, or other person awarded the custody of the child or children; provided, however, that:

                (i)  The court shall order that all child support payments based upon an income assignment issued by the clerk be paid to the clerk of the court, except as set forth in subdivision (c)(2)(A)(ii), for child support cases that are subject to the provisions for central collection and disbursement pursuant to § 36-5-116; and

                (ii)  In all Title IV-D child support cases in which payment of child support is to be made by income assignment, or otherwise, and in all cases where payments made by income assignment based upon support orders entered on or after January 1, 1994, that are not Title IV-D support cases, but must be made to the central collection and disbursement unit as provided by § 36-5-116, and, except as may otherwise be allowed by § 36-5-501 (a)(2)(B), the court shall only order that the support payments be made to the central collection and disbursement unit pursuant to § 36-5-116. No agreement by the parties in a parenting plan, either temporary or permanent, entered pursuant to the provisions of chapter 6, part 4 of this title, or any other agreement of the parties or order of the court, except as may otherwise be allowed by § 36-5-501(a)(2)(B), shall alter the requirements for payment to the central collection and disbursement unit as required by § 36-5-116, and any provision of any parenting plan, agreement or court order providing for any other payment procedure contrary to the requirements of § 36-5-116, except as may otherwise be allowed by § 36-5-501(a)(2)(B), whether or not approved by the court, shall be void and of no effect. No credit shall be given by the court, the court clerk or the department of human services, for child support payments required by the support order that are made in contravention of such requirements; provided, however, that the department may make any necessary adjustments to the balances owed to account for changes in the Title IV-D or central collection and disbursement status of the support case.

          (B)  (i)  When the court enters an order in which the paternity of a child is determined or support is ordered, enforced or modified for a child, each individual who is a party to any action pursuant to this part shall be immediately required to file with the court and, if the case is a Title IV-D child support case, shall immediately file with the local Title IV-D child support office, for entry into the state registry of support cases, and shall update, as appropriate, the parties' and, for subdivisions (c)(2)(B)(i)(a )-(B)(i)(c ), the child's or children's:

                     (a)  Full name and any change in name;

                     (b)  Date and place of birth. This information shall be filed with the court as a separate document containing the parties' and the child's or children's names, dates of birth and social security numbers. The document shall be placed in an eight and one-half inch by eleven inch (8½² x 11²) envelope containing the style of the case and docket number of the case and the document and envelope shall be file stamped by the clerk, and filed under seal in the case file. The document shall also be provided by the parties to the Title IV-D child support office together with the other information required in subdivisions (c)(2)(B)(i)(a ) through (h ). The social security numbers and other information filed with the clerk shall be available to the clerk of court for processing of documents and legal actions such as, but not limited to, divorce certificates, garnishments, and income assignments. On request, the sealed information shall be made available to the department of human services and any other agency required by law to have access to the information and to other persons or agencies as ordered by the court.

                     (c)  Residential and mailing addresses;

                     (d)  Home telephone numbers;

                     (e)  Driver license number;

                     (f)  The name, address, and telephone number of the person's employer;

                     (g)  The availability and cost of health insurance for the child; and

                     (h)  Gross annual income.

The requirements of this subdivision (c)(2)(B)(i) may be included in the court's order.

                (ii)  Each individual who is a party must update changes in circumstances of the individual for the information required by subdivision (c)(2)(B)(i) within ten (10) days of the date of such change. At the time of the entry of the first order pertaining to child support after July 1, 1997, clear written notice shall be given to each party of the requirements of this subsection (c), procedures for complying with this subsection (c), and a description of the effect or failure to comply. Such requirement may be noted in the order of the court.

                (iii)  In any subsequent child support enforcement action, the delivery of written notice as required by Rule 5 of the Tennessee Rules of Civil Procedure, to the most recent residential or employer address shown in the court's records or the Title IV-D agency's records, as required in subdivision (c)(2)(B)(i) shall be deemed to satisfy the due process requirements for notice and service of process with respect to that party, if there is a sufficient showing and the court is satisfied that a diligent effort has been made to ascertain the location and whereabouts of the party.

                (iv)  Upon motion of either party, upon a showing of domestic violence or the threat of such violence, the court may enter an order to withhold from public access the address, telephone number, and location of the alleged victim or victims or threatened victims of such circumstances. The clerk of the court shall withhold such information based upon the court's specific order, but may not be held liable for release of such information.

                (v)  In any subsequent proceeding to modify or enforce support, there shall be a rebuttable presumption that the information provided by the parties, as required by this part, has not changed, unless a party has complied with the provisions of this section by updating the information with the court and, if the case is a Title IV-D child support case, with the local Title IV-D child support office.

(d)  (1)  All support payments that have been paid to the clerk of the court shall be distributed by the clerk, as provided in the order of the court, within ten (10) days; provided, that the payments made to the clerk of the court in Title IV-D child support cases shall be distributed and deposited pursuant to the operating agreements under subdivision (d)(3) and the provisions of subdivision (d)(6), after implementation of the statewide Title IV-D child support computer system in the clerk's county, and after the appropriate notice to the clerk by the department under subdivisions (d)(3) and (d)(6).

     (2)  In every child support case being processed through the state's central collection and disbursement unit, if unable to provide the information concerning an order through a computer information transfer, the clerk shall send a copy of any new order or modification of such order, prior to or along with the first payment received pursuant to such order, to the department, or its designee, within ten (10) working days.

     (3)  Clerks participating in the operation of the statewide Title IV-D child support computer system shall be bound by the terms of the agreement and the laws, regulations, and policies and procedures of the Title IV-D child support program for the term of the agreement, unless the agreement is canceled by the department after notice to the clerk and an opportunity to correct any deficiencies caused by failure of the clerk to comply with federal or state regulations or procedures for operation of the system within thirty (30) days of such notice. While participating in the system, the clerks shall be entitled to receive the statutory fee for the collection and handling of child support obligations under the Title IV-D program. Any child support payment subject to distribution through the state's central collection and disbursement unit that has been received by a clerk shall be sent immediately by the clerk to the department or its designee, without the necessity of a court order.

     (4)  The clerks of all courts involved in the collection of any child support shall cooperate with and provide any reasonable and necessary assistance to the department or its contractors in the transfer of data concerning child support to the statewide Title IV-D child support computer system.

     (5)  Whenever the clerk has ceased handling Title IV-D child support payments under the provisions of subdivision (d)(3), and only where the context requires, all provisions in this chapter relating to the duties or actions involving the clerk shall be interpreted to substitute the department or its contractor.

     (6)  In all cases in which child support payments are subject to processing through the state's central collection and disbursement unit, the clerks shall, upon notice by the department, deposit all receipts of such child support payments on a daily basis to a bank account from which the state of Tennessee shall electronically debit those payments for the purpose of obtaining funds to distribute the child support obligations to the obligee.

     (7)  In all Title IV-D child support cases, child support payments shall be made by the obligor to the department. No credit shall be given to an obligor for any payments made by the obligor or by another person on behalf of the obligor, directly to an obligee or the obligor's child or children, unless the obligee remits the payment to the department. In the event that a Title IV-D case is instituted subsequent to the establishment of an order of child support, the department shall notify the obligor and obligee and the appropriate clerk of this fact, and all payments of child support in Title IV-D cases shall be made by the obligor to the department, without further order of the court.

     (8)  When an order provides for the support of two (2) or more children in a case that is subject to enforcement under Title IV-D, and at least one (1) child is a public charge, based upon receipt of temporary assistance pursuant to title 71, chapter 3, part 1, TennCare-Medicaid, or foster care or other custodial services from the state of Tennessee, the child support order shall be prorated by the department for purposes of distribution of the child support to the appropriate person or agency providing care or support for the child, without the need for modification of the child support order by the court.

(e)  (1)  (A)  In making the court's determination concerning the amount of support of any minor child or children of the parties, the court shall apply, as a rebuttable presumption, the child support guidelines, as provided in this subsection (e). If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child or children, or the equity between the parties. Findings that the application of the guidelines would be unjust or inappropriate shall state the amount of support that would have been ordered under the child support guidelines and a justification for the variance from the guidelines.

          (B)  Notwithstanding any provision of this section or any other law or rule to the contrary, if the net income of the obligor exceeds ten thousand dollars ($10,000) per month, then the custodial parent must prove, by a preponderance of the evidence, that child support in excess of the amount provided for in the child support guidelines is reasonably necessary to provide for the needs of the minor child or children of the parties. In making the court's determination, the court shall consider all available income of the obligor, as required by this chapter, and shall make a written finding that child support in excess of the amount so calculated is or is not reasonably necessary to provide for the needs of the minor child or children of the parties. In determining each party's income for the purpose of applying the child support guidelines, the court shall deduct each party's capital losses from that party's capital gains in each year.

          (C)  When making retroactive support awards, pursuant to the child support guidelines established pursuant to this subsection (e), in cases where the parents of the minor child are separated or divorced, but where the court has not entered an order of child support, the court shall consider the following factors as a basis for deviation from the presumption in the child support guidelines that child and medical support for the benefit of the child shall be awarded retroactively to the date of the parents' separation or divorce:

                (i)  Whether the remaining spouse knew or could have known of the location of the child or children who had been removed from the marital home by the abandoning spouse; or

                (ii)  Whether the abandoning spouse, or other caretaker of the child, intentionally, and without good cause, failed or refused to notify the remaining spouse of the location of the child following removal of the child from the marital home by the abandoning spouse; and

                (iii)  The attempts, if any, by the abandoning spouse, or other caretaker of the child, to notify the remaining spouse of the location of the child following removal of the child from the marital home by the abandoning spouse.

          (D)  In cases in which the presumption of the application of the guidelines is rebutted by clear and convincing evidence, the court shall deviate from the child support guidelines to reduce, in whole or in part, any retroactive support. The court must make a written finding that application of the guidelines would be unjust or inappropriate, in order to provide for the best interests of the child or children or the equity between the parties.

          (E)  Deviations shall not be granted in circumstances where, based upon clear and convincing evidence:

                (i)  The remaining spouse has a demonstrated history of violence or domestic violence toward the abandoning spouse, the child's caretaker or the child;

                (ii)  The child is the product of rape or incest of the mother by the father of the child;

                (iii)  The abandoning spouse has a reasonable apprehension of harm from the remaining spouse, or those acting on the remaining spouse's behalf, toward the abandoning spouse or the child; or

                (iv)  The remaining spouse, or those acting on the remaining spouse's behalf, has abused or neglected the child.

          (F)  In making any deviations from awarding child and medical support retroactively to the date of separation or divorce of the parties, the court shall make written findings of fact and conclusions of law to support the basis for the deviation, and shall include in the order the total amount of retroactive child and medical support that would have been paid retroactively to the date of separation or divorce of the parties, had a deviation not been made by the court.

          (G)  Nothing in this subdivision (e)(1) shall limit the right of the state of Tennessee to recover from the father or the remaining spouse expenditures made by the state for the benefit of the child, or the right, or obligation, of the Title IV-D child support agency to pursue retroactive support for the custodial parent or caretaker of the child, where appropriate.

          (H)  Any amounts of retroactive support ordered that have been assigned to the state of Tennessee, pursuant to § 71-3-124, shall be subject to the child support distribution requirements of 42 U.S.C. § 657. In such cases, the court order shall contain any language necessary to allow the state to recover the assigned support amounts.

     (2)  Beginning October 13, 1989, the child support guidelines promulgated by the department, pursuant to the rulemaking provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall be the guidelines that courts shall apply as a rebuttable presumption in child support cases.

     (3)  Child support guidelines shall be reviewed by the department of human services every three (3) years from the date of promulgation. The department shall make recommendations to the supreme court of any revisions needed in order to maintain compliance with the Family Support Act of 1988, and to ensure that application of the guidelines results in determinations of appropriate child support awards. A copy of the recommendations shall also be sent to the children and family affairs committee of the house of representatives and the general welfare, health and human services committee of the senate.

     (4)  (A)  In addition to any other subtractions, calculations of net income under the guidelines shall take into consideration the support of any other children the obligor is legally responsible to provide. The court shall consider children of the obligor who are not included in a decree of child support, but for whom the obligor is legally responsible to provide support and is supporting, for the purposes of reducing the obligor's net income, in calculating the guideline amount, or as a reason for deviation from the guidelines.

          (B)  In calculating amounts of support for children under the guidelines, the court shall allocate an obligor's financial child support responsibility from the obligor's income among all children of the obligor for whom the obligor is legally responsible to provide support and is supporting, in a manner that gives equitable consideration as defined by the department's child support guidelines, to the children for whom support is being set in the case before the court and to any other children for whom the obligor is legally responsible and is supporting. The court shall require that payments, made out of that allocation for all children of the obligor for whom the obligor is legally responsible and is supporting, be made upon such consideration. Guidelines promulgated by the department shall be consistent with the provisions of this subdivision (e)(4)(B).

(f)  (1)  Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state, and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed and notice of the action has been mailed to the last known address of the opposing parties. If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that accumulates on arrearages shall be considered child support. Computation of interest shall not be the responsibility of the clerk.

     (2)  In addition to the remedies provided in part 5 of this chapter, but not as an alternative to those provisions, if a parent is more than thirty (30) days in arrears, the clerk of the court may, upon written application of the obligee parent, a guardian or custodian of the children, or the department of human services or its contractors in Title IV-D support cases, issue a summons or, in the discretion of the court, an attachment for such parent, setting a bond of not less than two hundred fifty dollars ($250) or, in the discretion of the court, up to the amount of the arrears, for such other proceedings as may be held in the matter. In addition, the court may, at any time, require an obligor parent to give security by bond, with sufficient sureties approved by the court, or, alternatively, in the absence of the judge from the court, approved by the clerk of the court, for payment of past, present, and future support due under the order of support. If the obligor parent thereafter fails to appear or fails without good cause to comply with the order of support, such bonds may be forfeited and the proceeds from the bonds paid to the court clerk and applied to the order of support.

     (3)  Absent a court order to the contrary, if an arrearage for child support or fees due as court costs exists at the time an order for child support would otherwise terminate, the order of support, or any then existing income withholding arrangement, and all amounts ordered for payment of current support or arrears, including any arrears due for court costs, shall continue in effect in an amount equal to the then existing support order or income withholding arrangement, until the arrearage and costs due are satisfied, and the court may enforce all orders for such arrearages by contempt.

     (4)  The order of any court or administrative tribunal directing that an obligor pay a sum certain to reduce any support arrearage shall not preclude the use, by the department of human services or its contractors in the Title IV-D child support program, of any other administrative means of collecting the remaining balance of the outstanding arrearage, including, but not limited to, income tax refund intercepts, financial institution collections, enforcement of liens, or any other method authorized by law. The use of any additional administrative means of collection by the department or its contractors in the Title IV-D child support program is expressly authorized to reduce any portion, or all, of the outstanding balance of support as shown by the department's records, and any order of the court or administrative tribunal to the contrary is without any effect whatsoever, except for such appeal as may lie from the implementation of the administrative procedure that is used to reduce the arrearage.

     (5)  (A)  In enforcing any provision of child support, if an obligee, or the department or its contractor in Title IV-D cases, specifically prays for revocation of a license because an obligor is alleged to be in noncompliance with an order of support, or if the court determines on its own motion, or on motion of a party, that any individual party has failed to comply with a subpoena or a warrant in connection with the establishment or enforcement of an order of support, the court may find, specifically, in its order that the obligor is not in compliance with an order of support as defined by part 7 of this chapter, or it may find that an individual party has failed to comply with a subpoena or warrant in connection with the establishment or enforcement of an order of support, and may direct that any or all of the obligor's or individual party's licenses be subject to revocation, denial or suspension by the appropriate licensing authority, pursuant to part 7 of this chapter. The court shall direct the clerk to send a copy of that order to the department of human services to be sent by the department to each licensing authority specified in the order for processing and suspension, denial or revocation pursuant to § 36-5-706 and any other applicable provisions of part 7 of this chapter. Costs related to such order shall be taxed to the obligor or individual party.

          (B)  If the obligor whose license has been subject to the provisions of subdivision (f)(5)(A) complies with the order of support, or if the individual party complies with the subpoena or warrant, the court shall enter an order making such a finding, and the clerk shall send an order immediately to the department of human services to be transmitted to each licensing authority specified in the order, which shall then immediately issue, renew or reinstate the obligor's or individual party's license, in accordance with the provisions of § 36-5-707. Costs related to such order shall be taxed to the obligor or individual party, as the case may be, and shall be paid by the obligor or the individual party prior to sending the order to the department for transmission to the licensing authority.

          (C)  The department shall provide available information to the obligee, party or the court in actions under this subdivision (f)(5), concerning the name and address of the licensing authority or authorities of the obligor or individual party, in order to enable the enforcement of the provisions of this subdivision (f)(5). The obligee or individual party, as the case may be, seeking such information shall pay a fee, as established by the department for the provision of such service. These fees may be taxed as costs to the obligor whose license has been revoked pursuant to this subdivision (f)(5), or to the individual party who has failed to comply with the warrant or subpoena.

          (D)  If the licensing authority fails to take appropriate action pursuant to the orders of the court under this subdivision (f)(5), the party may seek a further order from the court to direct the licensing authority to take such action, and the party may seek any appropriate court sanctions against the licensing authority.

          (E)  For purposes of this subdivision (f)(5), ?individual party? means a party to the support action who is a person, but does not include a governmental agency, or the contractor or agent of such governmental agency, that is enforcing an order of support. ?Party? may include, where the context requires, an individual person, or it may include a governmental agency or contractor or agent of such governmental agency.

(g)  (1)  Upon application of either party, the court shall decree an increase or decrease of support when there is found to be a significant variance, as defined in the child support guidelines established by subsection (e), between the guidelines and the amount of support currently ordered, unless the variance has resulted from a previously court-ordered deviation from the guidelines and the circumstances that caused the deviation have not changed. Any support order subject to enforcement under Title IV-D may be modified in accordance with § 36-5-103 (f).

     (2)  The necessity to provide for the child's health care needs shall also be a basis for modification of the amount of the order, regardless of whether a modification in the amount of child support is necessary.

     (3)  The court shall not refuse to consider a modification of a prior order and decree as it relates to future payments of child support because the party is in arrears under that order and decree, unless the arrearage is a result of intentional action by the party.

     (4)  (A)  Notwithstanding the provisions of subdivision (g)(4)(B) and § 36-5-103 (f), for the purposes of this chapter, the birth or adoption of another child for whom an obligor is legally responsible to support and is supporting shall constitute a substantial and material change of circumstances for seeking a review of the existing order to determine if the addition of such child, and any credits applicable for the addition of such child under the department's child support guidelines, would result in a significant variance under such guidelines. If the significant variance is demonstrated by the review, the amount of an existing child support order may be modified by the court.

          (B)  For purposes of this chapter, the significant variance established by the department of human services pursuant to the child support guidelines shall provide a lower threshold for modification of child support orders for persons whose adjusted gross incomes are within low income categories established by the department's child support guidelines. The significant variance involving low income persons shall be established by rule of the department at no more than seven and one half percent (7 ½ %) of the difference between the current child support order and the amount of the proposed child support order.

     (5)  (A)  In Title IV-D child support cases that the department of human services is enforcing, the department shall provide a child support obligor notice ninety (90) days prior to the eighteenth birthday of a child or children for whom the obligor is paying child support, as such birthday is indicated by the department's records.

          (B)  If the following conditions are met, then the obligor may seek termination of the order of support and may also request that the department, as required by federal law, assist in seeking termination of the order:

                (i)  The department's records demonstrate that the child for whom an order of support in a Title IV-D child support case has been entered has reached eighteen (18) years of age and has graduated from high school, or that the class of which the child is a member when the child reached eighteen (18) years of age has graduated from high school, the obligor has otherwise provided the department with written documentation of such facts, or the obligor has provided the department with written documentation that a child for whom the obligor is required to pay support has died or has married;

                (ii)  No other special circumstances exist, including, but not limited to, the circumstances provided for in subsection (k) regarding disabled children, that require the obligation to continue;

                (iii)  The obligor does not owe arrearages to the obligee parent, any guardian or custodian of the child, the department of human services, any other agency of the state of Tennessee, or any other Title IV-D agency of any state;

                (iv)  The costs of court have been paid; and

                (v)  There are no other children for whom the obligor is required to pay child support.

          (C)  (i)  If the conditions of subdivisions (g)(5)(B)(i)-(v) exist in the Title IV-D case, as shown by the department's records, or such conditions exist based upon the written documentation provided by the obligor and verified by the department, then the department shall immediately temporarily suspend the order of support for the child who has reached majority. If the existing court order was the result of a deviation from the child support guidelines, the department shall immediately seek from the court termination of the support order for such child, and shall provide the obligee with notice of the filing of the petition to terminate such order.

                (ii)  If the existing order was not the result of a deviation from the child support guidelines, the department shall give notice to the obligee, and to the other obligor, of the temporary suspension of the order, based upon verification of the status of the case pursuant to subdivision (g)(5)(B), of its intent to permanently terminate the support order by an administrative order, which the department may issue for such purpose, and of the opportunity for a hearing upon the issue of permanent termination of the order.

                (iii)  If the obligee contests the temporary suspension of the order of support under the circumstances of subdivisions (g)(5)(B)(i)-(v) and prevails following entry of the court or administrative order, the obligor shall pay the support amounts and any other arrearages or court costs not paid as a result of the temporary suspension of the order. The administrative order shall be filed with the clerk of the court having jurisdiction of the case.

          (D)  (i)  If the conditions of subdivisions (g)(5)(B)(i)-(iv) are met in the Title IV-D case, but there are other children for whom the obligor is still obligated to support, the department shall immediately conduct a review of the support order and shall seek the support order's adjustment, if appropriate under the child support guidelines for such children. The obligor shall continue to make child support payments, in accordance with the existing order, until the court or department modifies the order pursuant to this subdivision (g)(5)(D).

                (ii)  If the existing court order was the result of a deviation from the child support guidelines, the department shall seek modification of the support order from the court, and shall provide the obligee and the obligor with notice of the filing of the petition to modify such order.

                (iii)  If the existing order was not the result of a deviation from the child support guidelines, and the department reviews the order and determines that the order should be modified pursuant to such guidelines, then the department shall notify the parties of the department's intent to modify the support order by an administrative order, which the department may issue for such purpose, and shall notify the parties of the opportunity for a hearing on the issue of modification of the order.

                (iv)  The support order shall be modified as established by order of the court or the department, as required pursuant to the child support guidelines. If the modified payment amount is lower than the payment amount required prior to the modification, then the obligor shall be given credit for such amount against future payments of support for the remaining children under the order. If the modified payment amount is higher than the payment amount required prior to the modification, then the obligor shall pay the higher ordered amount from the date of entry of the order. The administrative order shall be filed with the clerk of the court having jurisdiction of the case.

          (E)  The department's review and adjustment process, and the administrative hearing process outlined in this subdivision (g)(5), shall comply with any other due process requirements for notice to the obligor and obligee as may otherwise be required by this chapter.

(h)  (1)  The court may direct the acquisition or maintenance of health insurance covering each child of the marriage and may order either party to pay all, or each party to pay a pro rata share of, the health care costs not paid by insurance proceeds. In no event shall eligibility for or receipt of medicaid or TennCare-Medicaid by the custodial parent be considered to meet the need to provide for the child's health care needs in the order, if reasonable and affordable health insurance is available.

     (2)  In any case in which the court enters an order of support enforced under Title IV-D of the Social Security Act, the court shall enter an order providing for health care coverage to be provided for the child or children.

     (3)  The provisions of § 36-5-501(a)(3) shall apply with respect to enrollment of a child in the noncustodial parent's employer-based health care plan.

(i)  The court may direct either or both parties to designate the children as beneficiaries under any existing policies insuring the life of either party, and maintenance of existing policies insuring the life of either party, or the purchase and maintenance of life insurance and designation of beneficiaries.

(j)  Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties as to child support. In any such agreement, the parties must affirmatively acknowledge that no action by the parties shall be effective to reduce child support after the due date of each payment, and that they understand that court approval must be obtained before child support may be reduced, unless such payments are automatically reduced or terminated under the terms of the agreement.

(k)  (1)  Except as provided in subdivision (k)(2), the court may continue child support beyond a child's minority for the benefit of a child who is handicapped or disabled, as defined by the Americans with Disabilities Act, until such child reaches twenty-one (21) years of age.

     (2)  Provided, that such age limitation shall not apply if such child is severely disabled and living under the care and supervision of a parent, and the court determines that it is in the child's best interest to remain under such care and supervision and that the obligor is financially able to continue to pay child support. In such cases, the court may require the obligor to continue to pay child support for such period as it deems in the best interest of the child; provided, however, that, if the severely disabled child living with a parent was disabled prior to this child attaining eighteen (18) years of age and if the child remains severely disabled at the time of entry of a final decree of divorce or legal separation, then the court may order child support regardless of the age of the child at the time of entry of the decree.

     (3)  In so doing, the court may use the child support guidelines.

(l)  (1)  The court may, in its discretion, at any time pending the suit, upon motion and after notice and hearing, make any order that may be proper to compel a spouse to pay any sums necessary to enable the other spouse to prosecute or defend the suit and to provide for the custody and support of the minor children of the parties during the pendency of the suit, and to make other orders as it deems appropriate. In making any order under this subsection (l ), the court shall consider the financial needs of each spouse and the children, and the financial ability of each spouse to meet those needs and to prosecute or defend the suit.

     (2)  In any Title IV-D case, if the court grants relief, whether in whole or in part, to the department of human services or the department's Title IV-D contractor, or to any applicant for Title IV-D child support services, the court shall not tax any court costs against the department, the Title IV-D contractor or any applicant for child support services. The court shall not award attorney fees against the department, the Title IV-D contractor or any applicant for child support services, unless there is a clearly established violation of Rule 11 of the Tennessee Rules of Civil Procedure or for other contemptuous or other sanctionable conduct. The provisions of this subdivision (l )(2) are not intended to limit the discretion of the courts to tax costs to the individual parties on non-Title IV-D issues, such as custody or visitation.

(m)  No provision, finding of fact or conclusion of law in a final decree of divorce or annulment or other declaration of invalidity of a marriage that provides that the husband is not the father of a child born to the wife during the marriage or within three hundred (300) days of the entry of the final decree, or that names another person as the father of such child, shall be given preclusive effect, unless scientific tests to determine parentage are first performed and the results of the test that exclude the husband from parentage of the child or children, or that establish paternity in another person, are admitted into evidence. The results of such parentage testing shall only be admitted into evidence in accordance with the procedures established in § 24-7-112.

[Code 1858, § 2468 (deriv. Acts 1835-1836, ch. 26, §§ 10, 19); Shan., § 4221; mod. Code 1932, § 8446; Acts 1949, ch. 53, § 1; mod. C. Supp. 1950, § 8446; Acts 1970, ch. 425, § 1; 1979, ch. 187, § 1; 1979, ch. 339, § 1; 1980, ch. 691, § 1; 1983, ch. 352, § 1; 1983, ch. 414, § 1; T.C.A. (orig. ed.), § 36-820; Acts 1984, ch. 818, §§ 1-3; 1985, ch. 477, §§ 5-7, 17; 1986, ch. 890, § 17; 1987, ch. 39, § 1; 1988, ch. 671, § 1; 1989, ch. 206, § 1; 1989, ch. 489, § 4; 1991, ch. 447, § 1; 1992, ch. 824, § 1; 1993, ch. 243, §§ 1, 2; 1993, ch. 286, § 1; 1994, ch. 926, § 1; 1994, ch. 987, §§ 1-5; 1994, ch. 988, §§ 8, 9; 1995, ch. 504, § 2; 1996, ch. 892, § 16; 1997, ch. 551, §§ 7, 19, 22, 25, 41, 51-53, 66; 1998, ch. 1098, §§ 13-15, 72; 1999, ch. 303, § 1; 2000, ch. 922, §§ 5-9; 2001, ch. 447, §§ 3, 14, 20; 2002, ch. 651, §§ 1-3; 2003, ch. 305, § 1; 2003, ch. 361, § 2; 2003, ch. 373, § 1; 2004, ch. 549, §§ 1, 2; 2004, ch. 714, § 1; 2004, ch. 906, § 1; 2005, ch. 287, § 1; 2007, ch. 91, § 1; 2007, ch. 187, §§ 4-6; 2007, ch. 502, §§ 1, 3; 2008, ch. 868, § 3.]

36-5-102. Portion of spouse's estate decreed to spouse entitled to alimony or support — Maintenance of minor custodial parent. —

(a)  In cases where the court orders alimony or child support in accordance with § 36-5-101 and § 36-5-121, the court may decree to the spouse who is entitled to such alimony or child support such part of the other spouse's real and personal estate as it may think proper. In doing so, the court may have reference and look to the property that either spouse received by the other at the time of the marriage, or afterwards, as well as to the separate property secured to either by marriage contract or otherwise.

(b)  In addition to child support, a judge may require the noncustodial adult parent, who is not the legal spouse of the custodial parent, to pay an amount for the maintenance and support of the custodial parent if the custodial parent of the child is a minor. Such amount shall be determined by the court based on the noncustodial parent's ability to pay and shall be in addition to any court-ordered child support. Any order requiring the non-custodial parent to pay an additional amount for the maintenance and support of the custodial parent shall continue to be effective after the custodial parent reaches eighteen (18) years of age if the custodial parent is in high school. Such order shall continue until the custodial parent marries or graduates from high school or until the class of which the custodial parent is a member when the custodial parent attains eighteen (18) years of age graduates, whichever occurs first. As used in this subsection (b), ?maintenance and support of the custodial parent? may also include counseling and other special medical services needed by the custodial parent.

[Code 1858, § 2469 (deriv. Acts 1841-1842, ch. 133, § 2); Shan., § 4222; Code 1932, § 8447; Acts 1979, ch. 339, § 2; T.C.A. (orig. ed.), § 36-821; Acts 1997, ch. 134, § 1; 1998, ch. 1018, § 1; 2005, ch. 287, § 3.]

36-5-103. Enforcement of decree for alimony and support. —

(a)  (1)  In addition to the remedies in part 5 of this chapter, the court shall enforce its orders and decrees by requiring the obligor to post a bond or give sufficient personal surety under § 36-5-101(f)(2) to secure past, present, and future support, unless the court finds that the payment record of the obligor parent, the availability of other remedies and other relevant factors make the bond or surety unnecessary.

     (2)  The court may enforce its orders and decrees by sequestering the rents and profits of the real estate of the obligor against whom such order or decree was issued, if such obligor has any, and such obligor's personal estate and choses in action, and by appointing a receiver thereof, and from time to time causing the same to be applied to the use of the obligee and the children, or by such other lawful means the court deems necessary to assure compliance with its orders, including, but not limited to, the imposition of a lien against the real and personal property of the obligor.

(b)  In intrastate cases, jurisdiction to modify, alter or enforce orders or decrees for the support of children shall be determined in accordance with the provisions of parts 30 and 31 of this chapter.

(c)  The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

(d)  No state court order shall preclude the department of human services from implementing federal requirements for the interception of federal income tax refunds of an obligor for the payment of arrearages of child support.

(e)  The commissioner of human services is expressly authorized to issue an administrative order of income assignment to the commissioner of labor and workforce development against any wages or wage benefits to which an obligor is entitled. Such administrative order shall be based upon and issued pursuant to an order from a court of competent jurisdiction or pursuant to state or local law, shall be deemed to be legal process in the nature of a garnishment pursuant to 42 U.S.C. § 662(e) [repealed], and shall direct the payment of child or spousal support by an obligor parent.

     (1)  Administrative orders of income assignment issued pursuant to the authority of this part may, in the discretion of the commissioner of human services, be delivered to a representative of the commissioner for the purpose of execution, and such representative shall have the power and authority to levy and execute such administrative order.

     (2)  The administrative order of income assignment authorized by this section may be directed to, and effectively served upon, the commissioner of labor and workforce development by electronically transmitted data to compel the assignment of unemployment benefits in order to satisfy the legal obligation of obligor parents to provide child support payments. The transmission of any such order by the commissioner of human services shall be certification by the commissioner of the existence of the underlying court order and that the procedural requirements for notice to the obligor parent as required by part 5 of this chapter have been satisfied. The administrative order shall show the amount to be deducted from the obligor's unemployment compensation benefits by the department of labor and workforce development so as to comply with the underlying court order, and with any applicable statutes, rules, regulations, or inter-departmental agreements and, when necessary, the order shall contain the last known address of the obligor parent.

     (3)  The state child support enforcement computer system records shall be the official records of child support orders and child support-related spousal support orders and payment records for purposes of this subsection (e).

     (4)  If it is determined that the department of labor and workforce development has erroneously or wrongfully withheld benefits from an individual and delivered such benefits to the department of human services pursuant to a commissioner's order of income assignment, the department of human services will pay the correct amount to the individual to correct the erroneous payment.

(f)  (1)  (A)  Every three (3) years, upon request of the custodial or noncustodial parent, or any other caretaker of the child, or, if there is an assignment of support pursuant to title 71, chapter 3, part 1, upon the request of the department or upon the request of the custodial or noncustodial parent, or of any other caretaker of the child, then, in any support order subject to enforcement under Title IV-D of the Social Security Act, the department shall review, and, if appropriate, seek an adjustment of the order in accordance with child support guidelines established pursuant to § 36-5-101(e) without a requirement for proof or showing of any other change in circumstances. If at the time of the review, there is a ?significant variance?, as defined by the department's child support guidelines, between the current support order and the amount that would be ordered under the department's child support guidelines, the department shall seek an adjustment of the order.

          (B)  In the case of a request for review that is made between three-year cycles, the department shall review, and, if the requesting party demonstrates to the department that there has been a substantial change in circumstances, the department shall seek an adjustment to the support order in accordance with the guidelines established pursuant to § 36-5-101(e). For purposes of this subsection (f), a ?substantial change in circumstances? shall be a ?significant variance?, as defined by the department's child support guidelines, between the amount of the current order and the amount that would be ordered under the department's child support guidelines.

          (C)  The review and adjustment in subdivisions (f)(1)(A) and (f)(1)(B) may be conducted by the court, or by the department by issuance of an administrative order by the department or its contractors.

     (2)  As an alternative to the method described in subdivision (f)(1) for review and adjustment, the child support order may be reviewed, and the order may be adjusted by an administrative order issued by the department or its contractors by:

          (A)  Applying a cost-of-living adjustment to the order in accordance with a formula developed by the department; or

          (B)  Using automated methods, including automated comparisons with wage data to identify orders eligible for review, conduct the review, identify orders eligible for adjustment, and apply the appropriate adjustment to the orders eligible for adjustment based upon a threshold developed by the department.

     (3)  The methods for adjustment of orders of support by issuance of an administrative order pursuant to this section shall be promulgated in the department's rules.

     (4)  The department shall give written notice to the obligor and obligee that a review of the order of support has been initiated.

     (5)  The department shall give written notice to the obligor and obligee of the review findings. If the department elects to seek the adjustment of the support order by issuance of an administrative order instead of by judicial order, notice of the proposed administrative adjustment to the order of support shall be sent to the last known addresses of the obligor and obligee thirty (30) calendar days prior to the issuance of the administrative order adjusting the order of support pursuant to the same procedures for service of administrative orders described in § 36-5-807.

     (6)  (A)  The obligor and obligee shall have the right to contest the proposed administrative adjustment to the order of support within thirty (30) days of the mailing date of the notice of the proposed administrative adjustment to the order of support by filing a motion for a hearing on the proposed adjustment with the court having jurisdiction to modify the order of support and by providing notice of the hearing to the department by copy of such motion.

          (B)  The review by the court shall be completed within timeframes established by federal law.

          (C)  If the obligor or obligee contests the proposed administrative adjustment pursuant to the procedure in this subsection (f), no further administrative appeal to the department shall be available, and further appeal of the modified support order entered by the court shall be made pursuant to the Tennessee Rules of Appellate Procedure.

     (7)  If the obligor or obligee does not contest the proposed administrative adjustment to the order of support within thirty (30) calendar days of the mailing date of the notice of the proposed adjustment pursuant to the provisions of subdivision (f)(6), the department shall issue the administrative order adjusting the order of support.

     (8)  A copy of an administrative order of adjustment of the child support order shall be sent to the clerk of the court that has jurisdiction of the child support order that has been administratively adjusted and it shall be filed in the court record. A copy of the order shall be sent to the obligor and the obligee by the department by general mail at the last known addresses shown in the department's records.

     (9)  If an order of support is adjusted by administrative order of the department pursuant to subdivision (f)(7), the obligor and obligee shall have the right to administratively appeal the adjustment by requesting the appeal to the department as provided in part 10 of this chapter. The obligor or obligee may request a stay of the administrative order pursuant to the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The appeal from any decision resulting from the administrative appeal shall be to the court having jurisdiction of the support order and shall be subject to the scope of review as provided pursuant to the provisions of § 36-5-1003.

     (10)  Notice of the right to request a review, and, if appropriate, adjust the child support order shall be sent to the obligor and the obligee by the department at least every three (3) years for a child subject to an order being enforced pursuant to Title IV-D of the Social Security Act. The notice may be included in the order.

     (11)  The requirement for review and adjustment may be delayed if the best interests of the child require. Such interests would include the threat of physical or emotional harm to the child if the review and adjustment were to occur or the threat of severe physical or emotional harm to the child's custodial parent or caretaker.

(g)  Judgments for child support payments for each child subject to the order for child support pursuant to this part shall be enforceable without limitation as to time.

[Code 1858, § 2470 (deriv. Acts 1835-1836, ch. 26, § 10); Shan., § 4223; Code 1932, § 8448; mod. C. Supp. 1950, § 8448; Acts 1957, ch. 21, § 1; 1965, ch. 229, §§ 1, 2; 1979, ch. 187, § 2; 1979, ch. 339, § 3; T.C.A. (orig. ed.), § 36-822; Acts 1985, ch. 477, § 8; 1987, ch. 421, §§ 1, 2; 1994, ch. 987, § 6; 1995, ch. 504, § 3; 1997, ch. 551, §§ 8, 28, 45; 1998, ch. 1098, § 16; 1999, ch. 520, § 36; 2001, ch. 447, § 4; 2004, ch. 728, § 1.]

36-5-104. Failure to comply with child support order — Criminal sanctions — Inference of obligor's ability to pay. —

(a)  Any person, ordered to provide support and maintenance for a minor child or children, who fails to comply with the order or decree, may, in the discretion of the court, be punished by imprisonment in the county workhouse or county jail for a period not to exceed six (6) months.

(b)  No arrest warrant shall issue for the violation of any court order of support if such violation occurred during a period of time in which the obligor was incarcerated in any penal institution and was otherwise unable to comply with the order.

(c)  In addition to the sanction provided in subsection (a), the court shall have the discretion to require an individual who fails to comply with the order or decree of support and maintenance to remove litter from the state highway system, public playgrounds, public parks, or other appropriate locations for any prescribed period or to work in a recycling center or other appropriate location for any prescribed period of time in lieu of or in addition to any of the penalties otherwise provided; provided, however, that any person sentenced to remove litter from the state highway system, public playgrounds, public parks, or other appropriate locations or to work in a recycling center shall be allowed to do so at a time other than such person's regular hours of employment.

(d)  In any proceeding to enforce child support, the court may apply an inference that the obligor had the ability to pay the ordered child support as set forth in § 36-5-101(a)(8).

[Acts 1961, ch. 201, § 1; 1978, ch. 882, § 1; T.C.A., § 36-835; Acts 2003, ch. 189, § 1; 2007, ch. 502, § 2.]

36-5-105. Intestacy of plaintiff spouse — Effect on alimony. —

(a)  (1)  If the bonds of matrimony have been dissolved at the suit of the plaintiff spouse, the defendant spouse shall not be entitled to any part of the real or personal estate of the plaintiff spouse in case of such plaintiff's intestacy.

     (2)  Any entitlement a spouse may have to alimony shall be decided on the basis of factors set forth in § 36-5-121.

(b)  However, when the cause of divorce is irreconcilable differences under § 36-4-103, subsection (a) shall not apply if the parties have entered into a written marital dissolution agreement wherein the plaintiff consents to the payment to the defendant of alimony, either in lump sum form or periodic payments; provided, that such marital dissolution agreement is approved by the court granting the decree of divorce.

[Acts 1983, ch. 414, § 6; T.C.A., § 36-840; Acts 1987, ch. 390, § 5; 2005, ch. 287, § 4.]

36-5-106. Reports pursuant to Fair Credit Reporting Act. —

(a)  The department of human services or any of its Title IV-D child support contractors shall report periodically to consumer reporting agencies, as defined in the Fair Credit Reporting Act (15 U.S.C. § 1681a(f), the name of any noncustodial parent, of which the department or its Title IV-D contractors has a record, who is either current in payments of support or who is delinquent in the payment of support and the amount of the current obligation or arrears owed by such parent. Such information shall only be furnished to an entity that furnishes evidence to the department of human services that it meets the requirements to be defined as a consumer reporting agency pursuant to the Fair Credit Reporting Act.

(b)  For purposes of this section, ?delinquent? means any occasion on which the full amount of ordered support ordered for or on behalf of a minor child, or for a spouse or former spouse of the obligor with whom the child is living to the extent the spousal support would be included for the purposes of 42 U.S.C. § 654(4), is not paid by the due date for arrears as defined in § 36-5-101(f)(1) unless an income assignment is in effect and the payor of income is paying pursuant to § 36-5-501(g).

(c)  Reports of delinquent support and the amount of the arrears shall be made only after the noncustodial parent has been notified of the intended action at the last record address required by §§ 36-5-101(c)(2)(B)(i), 36-5-805, 36-2-311, and 37-1-151(b)(4)(C)-(F) or such other address as may be known to the department, and the noncustodial parent is afforded an opportunity for an administrative hearing before the department to contest the accuracy of such information. The noncustodial parent shall file a written request for appeal of the intended actions as provided by part 10 of this chapter.

[Acts 1985, ch. 477, § 18; 1994, ch. 987, § 7; 1997, ch. 551, § 21; 2001, ch. 447, § 5.]

36-5-107. Disposition of incentive payments — Prohibition against agency use of payments for social and recreational purposes. —

(a)  In the event that, pursuant to federal requirements, the department of human services adopts a plan requiring political subdivisions to pass incentive payments through to agencies actually participating in the IV-D program of the Social Security Act, 42 U.S.C. §§ 651-665, any incentive payment made to a political subdivision that the department designates to be passed through to such an agency shall be appropriated by the political subdivision to the use and benefit of the designated agency.

(b)  (1)  Except in districts where existing non-child support obligations for rent and payroll already exceed this figure, at least seventy percent (70%) of the federal incentive payments distributed by the department and disbursed by the executive director of the district attorneys general conference as provided in § 8-7-602 shall be utilized to encourage and improve the cost-effectiveness of child support enforcement efforts.

     (2)  In those districts where existing non-child support rent and payroll obligations already exceed thirty percent (30%) of the incentive payment expenditures for that district, one hundred percent (100%) of the federal incentive funds shall be utilized to encourage and improve the cost-effectiveness of child support enforcement efforts.

     (3)  Notwithstanding the requirements in subdivisions (b)(1) and (2), such funds may be appropriated by the general assembly for other purposes consistent with applicable federal requirements, to the extent that such appropriation is specifically set forth in the general appropriations act. Further, such funds shall be disbursed only for goods and services for which state funds may properly be disbursed and within limitations imposed on state disbursements including, but not limited to, state travel regulations.

     (4)  The provisions of this subsection (b) shall not be construed or implemented in any manner that jeopardizes the receipt of federal funding pursuant to the Social Security Act, 42 U.S.C. §§ 651-665.

(c)  An agency that participates in the IV-D program, and that receives federal incentive payments from the department as a result of such participation, shall not utilize any portion of the incentive payments for the social or recreational benefit of the agency's officers, employees, agents, or the family members of the officers, employees or agents.

[Acts 1985, ch. 477, § 19; 1990, ch. 974, §§ 2, 3, 5.]

36-5-108. Legislative intent — Review — Reallocation of staff and funding. —

It is the legislative intent in enacting Acts 1985, ch. 477, that if the aid to families with dependent children (AFDC) caseload is reduced through the provisions of Acts 1985, ch. 477, that staff, support, and funding for AFDC shall be reallocated accordingly. Accordingly, the department of human services is directed to submit information to the fiscal review committee and to the finance, ways, and means committees of the senate and house of representatives on a quarterly basis on child support payments recovered under Acts 1985, ch. 477, reductions in AFDC payments and cases, and such other information as any of the committees may request. Further, it is provided that when preparing funding recommendations for inclusion in the budget document and general appropriations act for the 1986-1987, and subsequent fiscal years, the commissioners of human services and finance and administration shall reallocate staffing levels and funding for the AFDC program to reflect any caseload reductions in such program.

[Acts 1985, ch. 477, § 20.]

36-5-109. Construction. —

The provisions of Acts 1985, ch. 477, are declared to be remedial in nature and all provisions of that act shall be liberally construed to effectuate its purpose.

[Acts 1985, ch. 477, § 22.]

36-5-110. Termination of Acts 1985, ch. 477. —

(a)  If any provision of the federal law that mandates any provision of Acts 1985, ch. 477, is declared to be unconstitutional by the supreme court of the United States, any such provision of such act shall cease to be effective one (1) year from the date of such supreme court decision.

(b)  Enactment of Acts 1985, ch. 477, is dependent on the availability of federal funding for its implementation, and if, at any time, such federal funding becomes unavailable, such act is thereby rendered repealed, null and void, and of no effect.

[Acts 1985, ch. 477, §§ 23, 24.]

36-5-111. Liability for clerk's fee. —

In all cases where payments for child support are made through or administered by the court clerk, the decree or order setting the child support must state that the party responsible for paying such support shall be responsible for the clerk's fee, as stated in § 8-21-403, and the amount thereof.

[Acts 1985, ch. 379, § 1.]

36-5-112. Responsible teen parent pilot project. —

(a)  Notwithstanding the provisions of title 71, chapter 3, part 1, or any other law to the contrary, the department shall establish and implement the responsible teen parent pilot project. The pilot project shall be established in at least one (1) county within each of the three (3) grand divisions. Acting in consultation with the department of education and department of labor and workforce development, the council of juvenile and family court judges, the district attorneys general conference, the department of human services shall develop policies and procedures whereby child support obligations of project participants may be adjusted or deferred; provided, that the participants engage in one (1) or more of the following activities:

     (1)  Attending school and making satisfactory progress toward high school graduation;

     (2)  Attending preparatory classes and making satisfactory progress toward receipt of a general equivalency diploma;

     (3)  Participating in approved job training programs and making satisfactory progress toward job placement; or

     (4)  Participating in approved parenting skills training courses and making satisfactory progress toward mastery of the subject matter of such courses.

(b)  Participation in the responsible teen parent pilot program shall be restricted to persons who:

     (1)  Are under twenty-one (21) years of age;

     (2)  Are non-custodial parents of children who are receiving, or who have recently received, aid to families with dependent children benefits;

     (3)  Are unable to provide adequate support for such children due to unemployment or underemployment;

     (4)  Pay a minimum, specified amount of child support; and

     (5)  Visit their children at least once each week unless such visitation is restricted by court order.