PR 06205.047 Tennessee

A. PR 88-010 Effective Date of Divorce Decree - Tennessee T~, Donald R.

DATE: April 28, 1988

1. SYLLABUS

DIVORCE -- Effective Date -- Tennessee

Under Tennessee law, a divorce decree does not become effective until recorded in the minutes of the court.

(T~, Donald R. - ~ - RAIV [W~] - to ARC, Progs., Atl., 04/28/88)

2. OPINION

This is in response to your inquiry concerning the effective date of divorce between the insured and applicant under Tennessee law.

According to the file, the applicant and the insured were married in Cocke County, Tennessee, on March 27, 1965. They separated in December 1965. Following this separation, the insured moved to Fentress County, Tennessee, and the applicant moved to Arkansas. While in Arkansas, the applicant lived with Holace C~. She lived with him for two years and used his name. About five months after their separation, the applicant initiated a divorce action against the insured in Fentress County, Tennessee, on May 9, 1966. The insured was served with the divorce action on May 10, 1966. The insured heard nothing further regarding the divorce and presumed the applicant procured the divorce. On October 29, 1968, however, the applicant's divorce action against the insured was dismissed for failure to prosecute her action.

Subsequently, the insured became aware that he and the applicant had not been divorced. The insured then initiated a divorce action in the Chancery Court for Hamblen County, Tennessee. A divorce judgment was entered on September 29, 1975. Under the terms of the divorce judgment, the divorce was made retroactive to June 15, 1966, thereby purporting to restore the insured all rights and privileges of an unmarried person effective June 15, 1966.

In 1978, the insured married Linda S. M~. Two children were born of this relationship, i.e., Kimberly and Melissa. The insured and Linda were divorced in 1981. The insured did not remarry subsequent to his divorce from Linda. The insured died on May 4, 1984. Linda applied for child's benefits on behalf of the insured's two children, Kimberly and Melissa, on May 9, 1984. The applicant filed her application for benefits as a surviving divorced spouse on July 30, 1987.

Generally, a divorce does not become effective until it is recorded in the minutes of the court. (C~ Charles D. -~ - RAIV [C~] - to PC, B'~., 07/15/60) as modified in (C~, Charles D. - ~ - RAIV [C~] - to PC, B~., 06/21/62). Under special circumstances, however, Tennessee courts have the authority to enter a nunc pro tunc decree which has the retroactive effect of correcting an existing decree or supplying a missing decree. McCown v. Quillin, 344 S.W.2d 576 (1960), cert. denied (1961). The purpose of the nunc pro tunc decree is to make the court record speak the truth. Rush v. Rush, 37 S.W.13 (1896). The nunc pro tunc divorce decree has been used in Tennessee where a court had rendered a decree of divorce but that decree, for some reason, was not entered in the minutes of the court until some subsequent date or not at all. The effect of the nunc pro tunc decree would be to make a divorce effective as of some prior date when the court rendered such decree even though such decree was never entered in the court's minutes.

Based upon our file, there is no indication that any court addressed the merits of any divorce action between the applicant and the insured prior to September 29, 1975. Accordingly, there was no legal basis under Tennessee law for the issuance of a nunc pro tunc decree by the Chancery Court of Hamblen County, Tennessee, on September 29, 1975. Accordingly, it is the opinion of this office that marriage between the insured and the applicant was dissolved effective September 29, 1975, and the divorce was not retroactive to June 15, 1966.


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PR 06205.047 - Tennessee - 09/09/2008
Batch run: 01/27/2009
Rev:09/09/2008