For an attorney practicing family law, or more specifically, divorce law, most initial phone calls with potential clients follow the same pattern. The purpose of this entry is for people who are considering or involved in divorce, and do not know the process and requirements, to have a guide or primer on the procedure and expectations before embarking on this stressful time in their lives.
Uncontested v. Contested
It is possible for a couple to have an “uncontested” divorce. In fact, most divorces end up “uncontested,” at least in the eyes of the Court. However, if you and your spouse begin the divorce process without a full agreement as to all issues (division of property, distribution of debt, spousal support, child custody, etc.), your divorce will at least start out “contested.”
Why does this matter? Mainly, money. Many attorneys will charge a significantly reduced fee for an uncontested divorce. An example of this might be a potential client contacting an attorney and stating, “my husband and I have already divided our property, we don’t have children, we just need a divorce.” In this scenario, the attorney will understand there is much less time required compared to a “contested” case and can charge accordingly. Please note that, even if a divorce is “uncontested,” an attorney can only represent one side of any lawsuit. The idea of “using the same attorney” is a common misconception and is not allowed by our ethical rules. But, there is no requirement that each side (or either side, for that matter) have counsel, either.
Can I get a divorce in Tennessee?
A person may be granted a divorce in Tennessee if the acts complained of (grounds) were committed while the plaintiff was a resident of Tennessee or were committed outside of this state and the plaintiff resided out of the state at the time, if the plaintiff or the defendant has resided in Tennessee for six (6) months next preceding the filing of the Complaint. The divorce should be filed 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 does not live in Tennessee, then in the county where the Plaintiff resides. There are special rules regarding parties in active service with the Military, so be sure to consult an attorney if that applies to you or your spouse.
Do I have to prove Grounds?
To be granted a divorce in Tennessee, one party must prove they have a “ground” for divorce. The grounds are set forth in Tennessee Code Annotated § 36-4-101, and range from adultery and habitual drunkenness to abandonment. There are fifteen grounds to choose from, but the most common grounds for divorce are “inappropriate marital conduct” and “irreconcilable differences.” Parties may “stipulate” that each other has grounds for divorce, and, generally, when a divorce ends in an agreement as to all issues, the parties will be divorced on “irreconcilable differences.”
How long does the process take?
There is no way to know exactly how long your divorce litigation will take. A Complaint for Divorce must be on file for sixty (60) days before being heard if the parties have no minor children, and must be on file at least ninety (90) days if the parties have minor children. The sixty-day or ninety-day period commences on the date the Complaint is filed. So, depending on if you have minor children, the minimum amount of time your divorce can take is sixty (60) or ninety (90) days. Most divorces take longer. From the time a Complaint for Divorce is filed, the opposing party has thirty (30) days to respond or file an “Answer” to the Complaint. Then, depending on the case, mediation, discovery, depositions and pre-trial hearings could take place, all of which would generally delay the finalization of the divorce.
How much does it cost?
Any lawyer’s favorite answer: it depends. Plaintiffs are usually required to pay a filing fee up front at the time of filing their Complaint, whether they are using an attorney or not. This fee is paid to the Clerk’s office where the Complaint is filed. Filing fees vary from county to county, but a litigant can expect to pay somewhere around to $200-$300, depending on whether there are children involved, whether you are asking the Court to arrange for service of process, etc.
Other fees a divorce litigant could encounter are attorney’s fees (attorneys typically charge a “retainer,” which is billed against throughout the case), mediation fees (typically charged on an hourly basis and split between the parties) and expenses (court reporters, subpoenas, investigators, etc.).
What if we have children?
When parents divorce, as a general rule, neither one is going to be able to see the children as much as they want to, or are used to. There are many factors pertaining to custody and the development of parenting plans which guide litigants and the Courts in making decisions regarding residential parenting time, visitation, child support and other considerations. (See T.C.A. § 36-6-106 and other relevant statutes.) The overall burden for the Court is to consider the best interests of the children. Practically, parents are expected to do everything in their power to not involve the children in the litigation, to not disparage the other parent and to attempt to reduce the traumatic effect on the children that a divorce could cause. To this end, parents in Tennessee must attend a class designed to assist in effective co-parenting and a certificate for this class must be provided to the Court. Child support is calculated based on several factors, including the parties respective gross monthly incomes, the amount of “days” each parent has with the children each year, the costs of the child(ren)’s portion of health insurance, work-related childcare, and other factors.
How does it really work?
I tell most clients: “this process can be as easy (relatively speaking) or as hard as you and your spouse make it.” Obviously, anytime you are ending a relationship, there are many factors that make it difficult, especially if the decision is one-sided. Divorce takes a toll on most people in many ways: emotionally, financially, psychologically, even physically. But, it is important to remember that, even if it takes longer than you would hope, it won’t take forever. And, if you can remain civil with your spouse, especially if you are co-parenting children, it will serve you and your loved ones much better going forward.
From the time the Complaint is filed, or even before, you should be focusing on the following:
- What parenting plan is in the best interests of our children? – Too often, divorce litigants with children begin this consideration with: “’I want’ or ‘I deserve’ the children because ______.” The focus should be on what residential schedule makes the most sense for the children, best addresses their needs and what arrangement maximizes each parent’s time with the children in an effort to promote and facilitate a positive relationship with each parent. The parties will generally file a “Proposed Parenting Plan” with their Complaint for Divorce and Answer/Counter-Complaint, if one is filed.
- Identifying what comprises the “marital estate.” – Some property and debt, depending on when and how it is acquired, could be classified as separate property. Make sure everything that is subject to division as part of the marital estate is marital property. Debts are included in this factor as well. What constitutes marital and separate property, and how the Courts view an equitable division of marital property, can be found at T.C.A. § 36-4-121.
- Dividing and distributing the marital estate. – Who will keep the house, or will it be sold? Who will pay the credit card debt? What do we do with the retirement accounts? What about spousal support? All of these questions and much more must be considered and, if the parties are able to agree, should be addressed in a Marital Dissolution Agreement.
What if we cannot agree on anything?
If the parties cannot resolve the issues in their divorce, the Court must conduct a trial to determine what parenting plan is in the children’s best interest and what should be done regarding the marital estate. Most attorneys (and Judges) will tell you that you will like the results much more if you and your spouse are able to come to an agreement, than if you elect to have a trial and allow a stranger (as educated and experienced as they may be) to divide your assets and debts and to determine custody of your children. I once worked for a Judge who told me, with respect to all lawsuits, but divorce cases specifically: “If both parties leave mad at me, then I’ve probably made the right decision.”
So, in closing, it is important to see the whole picture when entering into any lawsuit, but especially one that can have such an important impact on your daily life. Make sure you prepare yourself for what is expected and what can occur, and the experience should hopefully be less stressful.
I hope this entry will assist some people in better understanding some of the preliminary considerations when divorce has become a realization. This information is by no means meant to be an exhaustive or complete guide to divorce in Tennessee. For specific questions, and to understand the process in more detail, please seek the assistance of an attorney.
For more information, please contact Johnathan Minga at [email protected] or (423) 434-4700.