The Jones Law Firm | Memphis, Tn

Whether we like it or not, divorce is a part of our culture. The reasons that couples seek to divorce one another vary from case to case. In some cases, the couple agrees that the divorce should take place. In other cases, the couple cannot agree on anything, even that they should be divorced.

In an episode of Seinfield, Jerry and George discussed what it takes to end a relationship. George remarked that ending a relationship was like pushing over a coke machine. He observed that you can’t just walk up to it and push it over; you have to keep pushing it until it rocks enough to finally make it fall. If you're taking the time to read this, chances are you are either on the precipice of knocking over your own coke machine or its already laying on the ground.

Some divorces are very public affairs while you may wish for yours to be very private. Please do not create a YouTube video or a MySpace page telling the world about your spouse.

This document will attempt to give you a brief overview of many of the snares you may encounter as you seek to end your marriage. It is by no means all encompassing or a substitute for meeting with an attorney. All the areas listed below may not apply to your case; others may be of vital importance. People often confuse what attorneys do. I will gladly sit and listen to your problems and your feelings about your spouse, but I am not a licensed therapist or a member of the clergy. If you have not sought marital counseling, I would strongly suggest that you do so. To see a list of Counselors that we work with, click here.

Every action for divorce starts with the same document, a complaint. Your complaint will list certain identifying information about you, your spouse and if applicable, your children. One of the items you are required to list is your address. In order to file for divorce in Shelby County TN you must have been a resident for six months preceding the filing of the complaint. Your complaint will also list what type of Divorce you are seeking. The two general types of divorce are uncontested (Irreconcilable Differences or "ID") or contested, in which you prove your grounds for divorce.

Irreconcilable Differences:
Every complaint filed in our office gives you two options to proceed on your divorce. We always list Irreconcilable Differences as a ground. Should you and your spouse be able to enter into a Marital Dissolution Agreement and a Permanent Parenting Plan, you will be able to proceed on this ground. In general an ID divorce is less costly.

Contested Divorce:
In addition to Irreconcilable Differences we will list a ground to proceed on a contested divorce. In Tennessee, the following grounds are recognized:

· Inappropriate Marital Conduct (Cruel and Inhumane Treatment)
· Impotency
· Prior Existing Marriage
· Adultery
· Desertion
· Infamy
· Conviction of Felony
· Refusal to Follow to Tennessee
· Pregnancy by Another at Marriage
· Habitual Drunkenness
· Drug Abuse
· Abandonment
· Legal Separation for Two Years
· Attempt on Life of Spouse
· Indignities

If you proceed on one of these grounds, we will need proof in order to obtain your divorce. If we are unable to prove the grounds, your divorce may not be granted.

Unless specifically directed by you not to do so, we will also list one of the contested grounds as well as ID in our complaint. The reason we do this is to give you more options and more control over your divorce. By alleging alternate grounds, we are giving you the ability to switch tracks during the divorce process. For example, you may think that you and your spouse will never agree on anything and even mentioning ID as a ground is a waste of time and money. One month into the process, after your spouses’ first Deposition, he or she may wish to settle. By listing alternate grounds, we can drop whatever our ground may be and proceed on an ID divorce.

The opposite is true, if you come into our office and tell us that you and your spouse have worked out all aspects of your divorce and you just need us to put it in writing, we will also interview you and find out which ground for a contested divorce are available to you. If for any reason the lines of communication and negotiation break down, by listing a ground in addition to ID, you still have an avenue to pursue your divorce.

There are several defenses to divorce. The most prevalent and the most important from my personal experience is the defense of Condonation. Condonation is a specific defense to adultery. If you are aware that your spouse has committed adultery it is important that you cease any form of sexual intimacy with them. If you do have sexual relations with them after becoming aware of the adulterous act, you are legally deemed as having forgiven or condoned them.

*If you and your spouse have entered into an “open relationship”, commonly referred to as a “swinger” lifestyle, you need to disclose this to your attorney as it may bring about the defense of Condonation.

Both of these options are very limited and not very practical. In most instances they are used for religious purposes where the parties are vehemently opposed to divorce. Legal Separations are sometimes used by a party to secure health insurance, but most companies will treat a legal separation as a divorce for health insurance purposes.

A divorce can often be a long and drawn our process. It may be that you need certain relief from the Court immediately. If you do, let us know and we can prepare the necessary documents to get you immediate help. The following is a list of initial pleadings that we often file:

· Exclusive Use of the Marital Home
· Temporary Visitation/Custody
· Protective Orders
· Temporary Child Support
· Temporary Alimony

I’m sure you’ve seen the TV Court Drama’s were the witness breaks on the stand and gives the last minute confession that wins the day. This rarely happens in real life. The point of discovery is so that you never need to ask a question that you don’t already know the answer too. Discovery is costly and takes time; it is one of the primary reasons that litigation is so costly. It is also invaluable and impossible to conduct litigation without it.

Discovery allow us to answer all the hidden questions, to find all the hidden assets, to track down the cell phone numbers that you were never suppose to see. The following forms of discovery are the most common:

· Interrogatories - These are written questions that are submitted and must be answered within 30 days of receipt. If discovery is served upon you, it is very important that you cooperate with our office to accurately and timely answer these questions. In addition we may need to interview you in order to create a set of interrogatories for your spouse.
· Depositions - A deposition is where your spouse must appear at our office and answer questions under oath in the presence of a court reporter. The transcripts from these depositions can be used at trial.
· Request for Production of Documents - We can request any document, recording or any tangible piece of evidence in order to help prove your case.
· Request for Admissions - We can request that your spouse admit or deny certain accusations. For example, if you think your spouse has committed adultery, we can ask them to admit it.
· Income and Expense Affidavits - This spreadsheet of expenses allows us to see both income and need for income in determining child support and alimony.

If it is found that a person was less than forthcoming during a phase of the discovery process, not only can that fact be used against them at trial, but the attorney fees for proving the party was dishonest are also recoverable.

All divorce proceedings are now required to attend mediation before a trial can be held. In many cases mediation can lead to a successful settlement of your case. In mediation, you and your attorney, your spouse and their attorney and the mediator will meet. The mediator is a neutral third party that is often also an attorney. Their job is to try and facilitate an amicable settlement. It is important to understand that mediation is not binding. The mediator will not rule or cast down a judgment.

A Marital Dissolution Agreement, or MDA, is a document that divides your assets and your debts. It is what it purports to be, a drawn agreement that dissolves your marriage. It is important to understand that an MDA is an AGREEMENT. Generally speaking you are only limited by your imagination and what you can agree on.

A MDA sets out among other things:
Who will get the house, or will the house be sold?
How will the tangible items in the house be divided?
Who will pay the Court Costs Associated with the Divorce?
What will happen to Health Insurance once the divorce is final?
Will either party pay Alimony?
What will happen to the retirement accounts and 401k plans you have accrued?
Who will be responsible for the debts that were accrued during the marriage?

A permanent parenting plan is to be your Bible when it comes to your children. The legislature has created a blue print for the parenting plan and a copy of it can be found here. The plan divides parenting time with your children and spells out how and when each party will see them. The plan will refer to one parent as the Primary Residential Parent (PRP) and the other as the Alternative Residential Parent (ARP).

The goal of the plan is to give you and your spouse a rule book when troubles arise. It is important to understand that family’s change and children grow. A plan that is created for a 3 year old will more than likely not operate as intended once the child becomes 16 or has a social life and identity separate from your house. The hope is that with careful planning, you and your spouse will be able to work together to change and grow with the plan and with your children.

I often tell clients that my goal in creating a parenting plan is to try and create an environment where the two divorced parents can one day sit together at the child’s graduation or wedding, knowing that they worked together, with their child’s best interest in mind.

Children are resilient; they are stronger than we give them credit. But a divorce is a life changing event for a child. The very foundation of their existence is dramatically changed when one parent is removed from the marital home. If you think that your child needs counseling or help getting through this time, please see our list of counselors here.

Child support in Tennessee is based upon the income of both the Father and the Mother. Income is not limited to the amount of salary a person earns. Certain benefits such as housing allotments can also be taken into account. It is a fairly complex calculation that takes into account several factors. These factors include the number of days each party spends with the child(ren), payment of daycare expenses, payment of health insurance, and other children born prior to or subsequent to the marriage. If you would like to attempt to calculate what your child support is you can download a free Child Support Calculator here.

Many times I hear parents say, “I don’t want his/her money”. I try and explain that it’s not your money; it’s your child’s. If you don’t want to use it, then set up a bank account and put the money in it to be used for college.

You should also know that you can’t agree on what child support should be. The state has gone to great lengths to create these calculations. You plug in the correct information and the child support is computed. If you ask me to enter incorrect information, you are depriving your child and I will more than likely ask you to seek legal counsel elsewhere. The only time you can skew the child support calculation is in a situation where there are extreme travel conditions, private school tuition, or EXTREME economic hardship. I will caution you that I have yet to have a deviation approved due to an economic hardship.

Child Support is also treated specially in a Bankruptcy and is not dischargeable.

You cannot quit your job in order to lower your child support. The following is a fictitious example: A doctor once was told he had to pay 7000.00 dollars a month in child support. He was earning $500,000.00 a year. He also loved to make wooden rocking chairs in his garage for his friends and family. One day he had an idea; quit being a doctor and start making furniture. He believed this would lower his child support and relief some of the stress in his life. After a year in his new rocking chair business he made 30,000.00 dollars. He asked the Court to lower his child support and the Court decided that if he wanted to make furniture he could, but his child support would remain the same. Ones income is based on their POTENTIAL to earn. You can not voluntarily take a pay cut to avoid child support.

If you and your spouse can not enter into an MDA and Mediation is not successful, you will have a trial. Divorce trials are generally before a Judge, but on rare occasions a Jury can be demanded. At trial the Court will divide your property, your debts and your time with your children.

In order to divide your property you must first determine what property is Marital. Generally speaking, any property that you acquired prior to the marriage or inherited during the marriage is not divisible. As with most things in life, there are exceptions to this rule, so please check with me to see what is and what is not divisible. The Court will equitably divide your property at a trial. Please understand that EQUITABLY does not mean EQUALLY. There are a number of factors that go into the Courts consideration of how to divide your belongings. Tennessee Code 36-4-121 describes in depth the factors that the Court will consider. You can find the statute here.

Your debts will also be divided. Whether a debt is in your name or your spouses is not the deciding factor in apportioning debt. What is relevant is what the debt provided. If it was a marital debt in nature, it is divisible. You need to be aware that lenders and creditors do not care what a Trial Court says with regards to debt. If the Trial Court orders you spouse to pay the house note and he defaults, they will still come after you for the note. For this reason it is important to have your spouse refinance any debt solely in his/her name if possible.

Please understand that your rights under Bankruptcy Law may be affected by the division of debts.

Please note that I am not a Tax Attorney. I do not give Tax advice. I refused to enroll in any law school course that had anything resembling the word tax in the class title. In most cases I avoided the building where tax law was taught. Fortunately, I am smart enough to know that I need to know smart Tax people. If necessary we associate with Attorney and CPA’s Gary L. Jewel or Patrick Mason for our Tax needs.

Alimony is awarded based upon need. The goal of alimony is to give an economically disadvantaged party a chance to better themselves and be less dependent upon their former spouse. Tennessee awards the following types of alimony:

· Rehabilitative Alimony - Temporary in nature.
· Transitional Alimony - Rehabilitation is not necessary but assistance is needed to make the transition from marriage to single life.
· Alimony in Futuro - This type of alimony is not often awarded, but continues generally until the death or remarriage of a party.
· Alimony in Solido - This is a set amount of money for a set amount of time. It does not terminate upon death or remarriage and is not modifiable at a later date.

There are several factors that go into determining whether or not you are eligible for alimony. We will not be able to guarantee that you will receive any form of alimony, but after your interview we will be able to give you a frank and honest opinion as to your options.