Providing accurate and objective information to help make the right decisions during a divorce in Tennessee, this guide provides answers to 360 queries such as What is the mediation process in Tennessee and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.
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Divorce in Tennessee
The Legal Process, Your Rights, and What to Expect
By Eric J. Burch
Addicus Books, Inc.Copyright © 2014 Eric J. Burch
All rights reserved.
Understanding the Divorce Process
At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.
Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.
Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial," and you feel your heart start pounding in fear. It can reduce your frustration about the length of the process because you understand why each step is needed. It will support you to begin preparing for what comes next.
Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?
1.1 What is my first step?
Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation. Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.
Ask what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.
1.2 Must I have an attorney to get a divorce in Tennessee?
You are not required to have an attorney to obtain a divorce in Tennessee. However, if your case involves children, alimony, significant property, or debts, you should avoid proceeding on your own.
A person who proceeds in a legal matter without a lawyer is referred to as pro se, on one's own. If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Meeting with a lawyer can help you decide whether to proceed on your own.
The Divorce Process
Obtain a referral for a lawyer.
Schedule an appointment with an attorney.
Prepare questions and gather needed documents for the initial consultation.
Meet for the initial consultation with attorney.
Pay retainer to attorney and sign retainer agreement.
Provide requested information and documents to your attorney.
Take other actions as advised by attorney, such as opening or closing financial accounts.
Attorney prepares complaint for divorce and affidavits for temporary matters for your review and signature.
Attorney files complaint with clerk of the court. Attorney obtains ex parte orders if appropriate. Attorney obtains hearing date for temporary matters.
Mandatory sixty-day or ninety-day waiting period begins when complaint is filed.
Spouse is served papers by sheriff or process server.
Negotiations begin regarding terms of temporary order on matters such as custody, support, and temporary possession of the family home. Attorneys prepare financial affidavits and child-support guidelines for temporary hearing.
Temporary hearing is held.
Parties reach agreement on temporary order.
Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature.
If there are minor children, parties must attend a parent education class, develop a parenting plan, or participate in mediation.
Both sides conduct discovery to obtain information regarding all relevant facts.
Obtain valuations of all assets, including expert opinions if needed.
Confer with attorney, identify issues, assess strengths and weaknesses of case, review strategy, and develop proposal for settlement.
Spouses, guided by their attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other negotiation.
Parties reach agreement on all issues.
Attorney prepares decree and court orders for the division of retirement plans for approval by spouses and attorneys.
Parties prepare for trial on unresolved issues.
Trial preparations proceed and include the preparation of witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross-examination of witnesses, preparation of opening statement, subpoena of witnesses, and closing argument and suggestions to the court.
Meet with attorney for final trial preparation.
Trial is held.
Judge makes decision.
Attorney prepares decree.
Spouse's attorney approves decree as to form.
Decree submitted to judge for signature.
Judge signs decree of dissolution.
Make payments and sign documents (deeds or titles) according to decree.
Documents required to divide retirement accounts and ensure the payment of child support are submitted to the court.
1.3 Is Tennessee a no-fault state or do I need grounds for a divorce?
Tennessee, like most states, does not require fault for a divorce to be granted. If the parties are able to reach a settlement, the parties must only prove that irreconcilable differences exist between the parties. This is generally done by stating to the judge at the divorce approval hearing that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, and that irreconcilable differences exist between the parties.
Although not required, if either party chooses to have a final hearing, then the testimony of either you or your spouse is likely to be sufficient evidence for the court to rule that the marriage should be dissolved. This testimony will state, as above, that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, and that irreconcilable differences exist between the parties.
The judge may ask for information regarding the nature of the problems that led to the divorce or the type of reconciliation efforts made, such as counseling with a therapist or clergy member.
In cases where a settlement is not reached, the parties may stipulate that grounds for a divorce exist. If no such stipulation is made at the time of trial, the parties will submit proof of fault of one or both parties and the judge will grant the divorce to one of the parties against the other. Alternatively, the judge may just declare the parties to be divorced.
1.4 How will the judge view my or my spouse's infidelity?
In Tennessee, adultery is one of the grounds for divorce. In cases where property division or debt division is the main issue, the infidelity of you or your spouse is largely irrelevant. In cases of child custody, most judges frown on a parent who exposes a child to an extramarital affair. In cases where alimony is an issue, proving adultery, either through direct or circumstantial evidence, may be important. If it is proven, a judge will be more likely to award alimony if the other factors that support an alimony award are also present.
1.5 Do I have to get divorced in the same state I married in?
No. Regardless of where you were married, you may seek a divorce in Tennessee if the jurisdictional requirements of residency are met. The jurisdictional requirements are discussed in the following question.
1.6 How long must I have lived in Tennessee to get a divorce in the state?
Either you or your spouse must have been a resident of Tennessee for at least six months to meet the residency requirement for a divorce in Tennessee.
1.7 Can I divorce my spouse in Tennessee if he or she lives in another state?
Provided you have met the residency requirements for living in Tennessee for six months, you can file for divorce here even if your spouse lives in another state.
Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can counsel you on whether it is possible to proceed with the divorce.
1.8 My spouse has told me that she will never "give" me a divorce. Can I get one in Tennessee anyway?
Yes. Tennessee does not require that your spouse agree to a divorce. If your spouse threatens to not "give" you a divorce, know that in Tennessee this is likely to be an idle threat without any basis in the law.
There is case law in Tennessee to suggest that a judge should not leave two people married where one spouse no longer wishes to be married. While grounds for divorce must technically be proven if one spouse resists the divorce, a Tennessee judge will grant a divorce in almost every instance if one spouse comes to court seeking a divorce.
1.9 Can I get a divorce even when I don't know where my spouse is currently living?
Tennessee law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people.
Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.
1.10 I just moved to a different county within the state of Tennessee. Do I have to file in the county where my spouse lives?
The location where a divorce is filed is referred to as venue. In Tennessee, the proper venue is the last county where you and your spouse lived together. If one spouse moved into Tennessee from another state, then venue would lie in the county in Tennessee where the spouse moved.
1.11 I immigrated to Tennessee. Will my immigration status stop me from getting a divorce?
If you meet the residency requirements for divorce in Tennessee, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.
1.12 Is there a waiting period for a divorce in Tennessee?
Yes. Tennessee has a mandatory sixty-day waiting period for divorces without children and has a mandatory ninety-day waiting period for divorces with children. This waiting period begins on the day the complaint for divorce is filed with the court.
1.13 What is a divorce complaint?
A divorce complaint, also referred to as a complaint for dissolution of marriage is a document signed by the person filing for divorce and filed with the clerk of the court to initiate the divorce process. Formerly referred to as a petition, the complaint will set forth in very general terms what the plaintiff is asking the court to order.
Excerpted from Divorce in Tennessee by Eric J. Burch. Copyright © 2014 Eric J. Burch. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Working with Your Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation and Negotiation,
7 Emergency: When You Fear Your Spouse,
8 Child Custody,
9 Child Support,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
15 Going to Court,
16 The Appeals Process,
17 What Happens after the Divorce?,
About the Author,