Family/Divorce Law

How much will this cost me?

The cost of any family law case is almost impossible for an attorney to determine up front, even after an initial interview with a client. There are many different factors that will determine the total cost of a family law matter: the complexity and novelty of the issues presented, the reasonableness of the opposing party and/or counsel, and the value of the assets and liabilities that will necessarily have to be divided. Sometimes cases that start out simple may become complex as the parties go through the discovery process. A divorce can be particularly costly when parties disagree about parenting of their child(ren). When there are children involved, it is usually in the children’s best interests for the parties to reach a settlement.

How long will it take to complete my case?

The length of a case from the initial filing in the courts to the final decision, either by agreement or following litigation, may take several months or several years. Naturally, if the parties can reach an agreement outside the courtroom through mediation or a settlement conference between attorneys, the resolution is quicker. Tennessee law now requires that divorcing parties attend mediation within 6 months of the filing of a complaint for divorce. If a case goes to trial, however, a matter may take 6 months to more than 2 years.

Steps in the Divorce Process

Where do I start if I want to file a complaint for divorce or a complaint for legal separation?

In Tennessee, a party must prove grounds for divorce or legal separation. These grounds for divorce are listed in Tennessee Code Annotated § 36-4-101. The most common grounds in a complaint for divorce are “irreconcilable differences” and “inappropriate marital conduct.” “Irreconcilable differences” is similar to a ‘no-fault’ divorce, although Tennessee is not a ‘no-fault’ divorce state. The parties must reach an agreement to be divorced on grounds of "irreconcilable differences." According to T.C.A. 36-4-101 ‘inappropriate marital conduct’ is defined as “cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper.” Many divorces are granted on these grounds. Some parties obtain a legal separation but there has to be a possibility of reconciliation. You will need to consult with an attorney to determine which avenue is appropriate for your case.

What is discovery?

In order to divide up the assets and debts in a marriage equitably, your lawyer will first need to know what those assets and debts are. The investigation of your and your spouse’s employment history, tax returns, bank accounts, real estate, antiques, inheritances, health histories, and monthly expenses is required in order to make a reasonable assessment of the situation. Tennessee is an equitable distribution state, not a community property state. This means that assets acquired during the marriage are subject to equitable distribution. There are exceptions to this rule if the assets were owned prior to the marriage, or if they were inherited or received as a gift from third parties. Property that was owned prior to marriage, received as a gift or through inheritance is separate property and not divided in a divorce or legal separation.

What is a deposition?

A deposition is a part of the discovery process. A deposition is taken when an attorney asks questions of a party or witness when that person is under oath. It will be recorded by a court reporter, and is attended by all parties and their attorneys. Generally attorneys for both parties will take a deposition of each party to uncover additional evidence or to answer questions regarding documents and information that have already been produced. See the General Legal Help section for more information about depositions.

How are the property and liabilities divided in a divorce?

The division of marital property and marital liabilities is based upon an “equitable distribution.” Marital property is all property acquired during the marriage, other than property received as a gift or inheritance. Although in many cases equitable may mean equal or 50/50, the court can award more or less than one-half of the marital estate or liabilities if there is a reason to award more or less to a particular party.

What is alimony and how is it awarded?

Alimony (also known as spousal support) may be awarded to either spouse for their support and maintenance during and after the divorce. The primary factors in determining alimony are the need of one spouse and the ability of the other spouse to pay alimony. Except in certain circumstances delineated by statute, alimony is usually only awarded for a short period of time. Alimony may be paid in a lump sum payment of money or in a monthly amount. There are several different types of alimony, and a party may receive more than one type of alimony at the same time. Your attorney can better help you determine whether alimony is appropriate for your case and determine the amount and duration of the alimony.

How are custody and parenting time decided?

In most cases, parents agree about the custody, child support, and visitation/parenting time schedules relating to their children. It is generally best for the children for the parents to be able to reach an agreement; however, if the parents are unable to come to an agreement, a chancellor will ultimately decide these issues for the parents. Court orders providing for the custody of children are subject to modification after the divorce if there is a material and substantial change in the circumstances of either parent. The material and substantial change cannot be a foreseeable event, such as a child becoming a teenager. The parent who has custody of the children is the ‘primary residential parent.’ The non-custodial parent is the ‘alternate residential parent.’ The phrase “visitation” is no longer used in Tennessee; the parents have a ‘parenting time’ schedule for their child(ren). Custody of a child is also awarded based on the best interests of the child; there are ten (10) statutory factors the court must consider to determine custody in Tennessee:

  1. The love, affection and emotional ties existing between the parents or caregivers and the child;
  2. The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver 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 subdivision (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 parent, and that a non-perpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;
  4. The stability of the family unit of the parents or caregivers;
  5. The mental and physical health of the parents or caregivers;
  6. The home, school and community record of the child;
  7. (A) The reasonable preference of the child, if 12 years of age or older; (B) The court may hear the preference of a younger child on 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 to the evidence. 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 or caregiver and the person’s interactions with the child; and
  10. Each parent or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. TCA 36-6-106(a)

All divorcing parents with children must attend a parenting seminar and must have a Permanent Parenting Plan. A Permanent Parenting Plan is a form that must be agreed upon by the parties or ordered by the judge or chancellor. You can view the Permanent Parenting Plan at http://www.tsc.state.tn.us/geninfo/programs/Parenting/Parenting.htm.

The award of custody of a child is made without regard to the sex of a parent.

What is child support and how is it calculated?

A non-custodial parent can expect to pay child support until a child is emancipated (turns 18 or graduates from high school, whichever occurs later). In the event a child is disabled, a child support obligation may continue after the child is emancipated. Child support is based upon the income of both parents, expenses each parent pays for the child(ren), and the number of days in a given year that the child(ren) spend with each parent. A child support worksheet must be filed with the court for every divorce action involving minor children. The worksheet can be downloaded at http://www.state.tn.us/humanserv/is/isdownloads.htm. In Tennessee, child support can be modified if either parent has another child for whom they become legally responsible, or if a parent has a variance in their income that justifies an increase or decrease. A significant variance is defined as a change of at least 15% in the resulting appropriate child support award based on the new income. For lower income parents, a significant variance exists if there is a 7.5% change in the resulting child support calculation. [Click here for an audio-visual tutorial on representing yourself in court in a child support modification hearing]

How do we reach a settlement?

Settlement is encouraged by the courts in all family law matters that do not involve violence or domestic abuse. A settlement is preferably reached based on the full disclosure of all relevant information from each party to the other. In some cases, settlement may be reached based on the limited disclosure of relevant information to one another; however, it is difficult for an attorney to give accurate legal advice unless all the facts are before the attorney. The settlement process can be initiated voluntarily by the parties or ordered by the court. Settlement can be reached by the exchange of settlement offers, by a settlement conference or through mediation that utilizes a neutral third party. Tennessee law requires divorcing parties to attend mediation within six months of filing for divorce. If settlement is reached, a written agreement signed by both parties is submitted to the court for approval. If the agreement is approved by the court, a chancellor will sign a Final Decree of Divorce, or Decree of Legal Separation. If settlement is not reached, the case will proceed to trial. Each side will present their evidence and arguments, and the judge or chancellor decides the issues the parties have not resolved, including child custody and parenting time, child and spousal support, and property division. If appropriate, either or both parties can appeal the judge’s decision to a higher court.

If I marry someone who is paying child support will my income ever become a factor?

A new spouse’s income will not be included in a child support calculation for a parent paying or receiving child support. There are situations where a Court may impute an income to a parent for the purposes of calculating child support, however, such as if a parent is voluntarily not working or is voluntarily under-employed.

DISCLAIMER: The above information available through www.jacksonmadisonbar.org is basic legal information and is neither intended as legal advice, nor a substitute for legal advice. No attorney-client relationship is created herein. The content on www.jacksonmadisonbar.org is provided by the Jackson-Madison County Bar Association as a public service and for general information only. You should consult your attorney if you have questions concerning any specific situation. If you do not have an attorney, may we suggest that you visit our (Need a Lawyer – Family Law Child custody/support/visitation, Family Law Juvenile Court dependency/neglect, Family Law Divorce, Family Law Adoption, section or find a lawyer in the phone book. The topics covered through www.jacksonmadisonbar.org will provide basic information and should make it easier for someone with a problem to decide whether they need professional help from a lawyer or if another agency could provide them with assistance.

A special thanks to the Memphis Bar Association for its contributions and assistance to the Jackson-Madison County Bar Association in making available this legal information. Portions of the foregoing content have been reprinted with the permission of the Memphis Bar Association. www.memphisbar.org.