This guide will attempt to give you a brief overview of many of the snares you may encounter as you seek to end your marriage by divorce. It is by no means all encompassing or a substitute for meeting with an attorney in Memphis. Not all the areas listed below may apply to your case; others may be of vital importance. If you prefer to watch our video series on Divorce, you can go to our video section or click here. Most of the information will be specific to Tennessee; if you live in Mississippi, please let us know so we can advise you of the difference in laws that will be applicable to your case.
The paths that we take in life bring us to different results. Some are journeys that we must take on our own, and others we will travel with trusted friends and guides. In the end, we hope to arrive at a place where we can be happy and content with our decision to make the journey in the first place. A marriage is a path that we, at one time, chose to take with a trusted friend. What happens when that trust is not there? What happens when that person is no longer a friend? It is at this time that we must choose to take another path. Whether that is counseling, hiding in a loveless marriage, staying for the children, or seeking counsel from an attorney – these are decisions that each of us must make for ourselves.
Whether or not we like it, divorce is a part of our culture. The National Center for Health Statistics says that 43% of all marriages end in “disruption” within the first 15 years, which can mean divorce, separation, or abandonment. 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.
If you are on this site, more than likely you or a friend are contemplating making one of the toughest decisions of your life. Now might be a good time to grab a pen and paper and jot down any questions that may come to mind as you read these materials. Our office is always a phone or click away to help you sort through your concerns. You will also notice some highlighted terms. If at any time you are unsure of a term’s meaning, simply click the term and you will be given its definition.
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, Tennessee, 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.
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.
In addition to Irreconcilable Differences, we will list a ground to proceed on a contested divorce. In Tennessee, the following grounds are recognized:
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(s) 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.
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. If you are interested in a legal separation or an annulment, please schedule a consultation with our office for further details.
A divorce can often be a long and drawn out 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:
I’m sure you have seen the TV Court Drama programs 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 do not already know the answer to. 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 allows us to answer all the hidden questions, to find all the hidden assets, to track down the cell phone numbers that you were never supposed to see. The following forms of discovery are the most common:
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 to facilitate an amicable settlement. It is important to understand that mediation is not binding. The mediator will not rule or cast down a judgment. We offer mediation services as well. Mr. Jones is a certified Rule 31 mediator. This insight makes our ability to mediate for our own clients invaluable.
A Marital Dissolution Agreement, or MDA, is a document that divides your assets and your debts. It is what it purports to be, an agreement that dissolves your marriage. It is important to understand that an MDA is an AGREEMENT. Generally speaking, you are limited only by your imagination and what you can agree on.
A MDA sets out, among other things:
A permanent parenting plan will be your Bible when it comes to your children. The legislature has created a blueprint 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 rulebook when troubles arise. It is important to understand that families 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.
My goal in creating a parenting plan is to try to 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 for. 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 (insert link).
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 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”. It is not your money; it is your child’s. If you don’t want to use it, then set up a separate bank account and put the money in it to be used for college.
You should also know that you cannot independently 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 $2100.00 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 relieve 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. One’s income is based on their POTENTIAL to earn. You cannot voluntarily take a pay cut to avoid child support.
If you and your spouse cannot 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 Court’s 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 spouse’s 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 your 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 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:
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.
36-6-106. Child custody. (a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the following where applicable:
(1) The love, affection and emotional ties existing between the parents and child;
(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; provided, that where there is a finding, under § 36-6-106(a)(8), of child abuse, as defined in §§ 39-15-401 or 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a non-perpetrating parent has relocated in order to flee the perpetrating parent, that such relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) (A) The reasonable preference of the child if twelve (12) years of age or older; (B) The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that where there are allegations that one (1) parent has committed child abuse, as defined in §§ 39-15-401 or 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected thereto. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;
(9) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; and
(10) Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child. (b) Notwithstanding the provisions of any law to the contrary, the court has jurisdiction to make an initial custody determination regarding a minor child or may modify a prior order of child custody upon finding that the custodial parent has been convicted of or found civilly liable for the intentional and wrongful death of the child's other parent or legal guardian.