Divorce Myths in Tennessee, and What Is Actually True
From The Mid-South Divorce Guide, chapter 12, by William W. Jones
IV, a Memphis family law attorney and Rule 31 Listed Family Mediator
licensed in Tennessee and Mississippi. This guide covers Shelby, Tipton
and Fayette Counties in Tennessee and DeSoto, Tate and Tunica Counties
in Mississippi.
Questions this page answers
- Is Tennessee a 50/50 divorce state?
- Do mothers always get custody in Tennessee?
- Can a child choose which parent to live with at 12?
- Does adultery affect a divorce settlement in Tennessee?
“Tennessee is a fifty-fifty state.”
No. The governing word in Tennessee Code Annotated section 36-4-121
is equitable, and the statute hands the court a long list of factors to
weigh: the length of the marriage, what each of you earns and can earn,
what each of you contributed including as a homemaker, what each of you
owns separately, and more. Run a thirty year marriage with one spouse
out of the workforce through that list and an even split is not the
obvious answer. Run a four year marriage between two earners through it
and you may get something close to even. Nobody starts from a fraction.
They start from the factors.
“Mothers always get custody.”
Not the law and has not been for a long time. Tennessee does not even
use the word custody in the operative statutes anymore. It uses primary
residential parent and residential
schedule, and the decision runs through the best interest
factors in Tennessee Code Annotated section 36-6-106(a). Fathers get
named primary residential parent regularly.
“The kids get to pick at twelve.”
No. A child twelve or older has their preference considered by the
court, and a younger child’s preference may be considered. Considered is
not decided. A judge weighs a child’s preference against everything
else, and a fourteen-year-old who wants to live with the parent with no
curfew is not going to carry the day on that basis.
“He cheated, so I get everything.”
No. Tennessee courts divide marital property without regard to
marital fault. The statute says so explicitly. Fault can matter for
alimony, and it can matter if the affair was funded with marital money,
which is a dissipation argument.
But adultery is not a financial jackpot and any lawyer who tells you it
is has a fee agreement to sell you.
“I’ll just move out and figure it out later.”
Moving out has consequences for the temporary schedule, for who pays
the mortgage, and for the status quo the court is looking at. It is
sometimes exactly the right move. Talk to a lawyer first.
“If I don’t pay child support, I don’t have to see the
kids” or the reverse, “if he doesn’t pay, he doesn’t
see them.”
Wrong both directions. Parenting time and child support are separate
obligations. You cannot withhold one because the other is not being met.
Doing it is contempt.
“My lawyer is friendly with the other lawyer, so I am getting
sold out.”
Start with my card game, because it is the whole answer.
My friends and I play cards, and we are competitive to a degree our
wives find tiresome. Not one time in my life have I looked across that
table and thought, well, Tom is a good friend of mine, I ought to let
him have this hand. If anything, knowing the man makes me want to take
his money specifically.
That is the part people get backwards about lawyers who know each
other.
Here is the setting. There are plenty of attorneys around here who
will take a divorce, but only fifteen or twenty shops in this market do
family law as their primary work. In a pool that small you face the same
names for twenty years. I am on a first name basis with most of the
family law bar in Shelby and DeSoto County, I have good working
relationships with a number of them, and a few are genuinely my
friends.
None of that changes what I do on your file, and here is the concrete
reason. I know how those lawyers prepare. I know which ones will
actually try a case and which ones have not tried one in six years. I
know what a phone call from a particular office means and what it does
not. You cannot buy that and I cannot get it from a stranger.
Now, there is something in this neighborhood you should genuinely
worry about, and it is not friendliness. Worry about a lawyer who will
not advocate. Worry about one who agrees with the other side too easily,
or who cannot tell you what their plan is if the case does not settle.
Those are real problems and they show up in cordial lawyers and rude
ones at the same rate.
Because the reverse of your fear is also true. If your lawyer cannot
be in a room with opposing counsel without it turning into a fight, you
are the one paying for that fight, by the hour, and you will get nothing
for the money.
“We agreed on everything, so we can use one
lawyer.”
A lawyer represents one of you. Not both. That is not a technicality,
it is an ethics rule. One of you can be represented and the other can be
unrepresented and review the paperwork independently, which happens all
the time in genuinely agreed cases. But nobody is representing both of
you, and if somebody tells you they are, leave.
“We can just agree to that part between
ourselves.”
Whatever the two of you work out privately, if it is not written into
the documents the judge signs, it does not exist as far as any court is
concerned. There is nothing to enforce. You would be asking a judge to
order somebody to keep a promise that appears nowhere in the record.
People do this most often with the small stuff, the boat or the
furniture or who pays for the trip in June, precisely because it feels
too minor to bother the lawyers with. Then it stops being honored around
month four, and it is too small to sue over and too irritating to let
go. Put it in the paperwork. All of it.
“Divorce takes years.”
Some do. Most do not. The ones that take years are usually taking
years for a reason, and often the reason is a person.
Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)
Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.