Divorce & Alimony

Overview

There are two ways to obtain a divorce in Tennessee – either the case will end by settlement between the parties, or the Court will order a divorce after a hearing or trial. Settlements are usually quicker, less expensive, and allow the parties to retain more control over the disposition of their case. A settlement can occur at any stage of the divorce proceedings. A case can settle early on in the proceedings, in formal settlement negotiations, in mediation, or literally, on the courthouse steps on the day of trial. A divorce trial is almost always expensive and comes with a degree of uncertainty. Parties (and their attorneys) can never predict what the outcome will be in Court. We hope this overview will help you learn about the process of divorce in Tennessee so that you can know what to expect in the event you enter this process.

After a party or both parties decide to proceed with a divorce, the first legal step is to file a Complaint for Divorce. The Complaint is a legal pleading which initiates the divorce lawsuit in Circuit or Chancery Court. The person filing the Complaint is called the Plaintiff while the other spouse is called the Defendant. The Complaint alleges fault and seeks forms of relief from the Court, such as the payment of alimony and/or child support. The Complaint must be served on the Defendant, either by a private process server, the Sheriff, or, if the Defendant is represented by counsel, that attorney can agree to accept service of process on the Defendant’s behalf.

The Defendant has thirty days to file an Answer to the Complaint for Divorce, in which the Defendant admits or denies the allegations set forth in the Complaint. Sometimes the Defendant will file a Counter-Complaint for Divorce in which the Defendant alleges fault against the Plaintiff. The Counter-Complaint also requires an Answer, either admitting or denying the allegations set forth in the Counter-Complaint.

With respect to grounds for divorce, irreconcilable differences, usually thought of as ‘no fault’ grounds, will generally be alleged along with legal grounds for divorce. The most common grounds for divorce asserted in a Complaint is “inappropriate marital conduct.”

Upon the filing of the Complaint, certain automatic injunctions, or orders, are issued by the Court against both parties which prohibit either party from taking certain actions pending the entry of the Final Decree of Divorce. For example, both parties are enjoined from dropping the other party from insurance, from wasting or hiding marital assets, and from relocating the minor children from the state or more than 100 miles within the state from the jurisdiction of the Court without notice to the other party and/or order of the Court.

The next step in the divorce process is called Discovery. In most cases, this is initiated by the Plaintiff and/or the Defendant filing Interrogatories and Requests for Production of Documents. Interrogatories are written questions which must be answered under oath. They are generally designed to discover the financial aspects of the marriage, the details relating to fault, and persons with knowledge regarding the divorce proceedings. Requests for Production of Documents generally provide documentation for questions asked in the Interrogatories. The responses to the Interrogatories and Requests for Production of Documents generally are due within thirty days to forty-five days, depending upon how quickly the discovery requests are issued after the initial complaint is filed. Extensions of time to produce the responses, however, are usually given liberally.

The cost and time involved in the discovery process depends on many factors including the complexity of the case and the level of cooperation received from the opposing side. However, there are no absolutes.

There are other forms of discovery, such as depositions. A deposition consists of a lawyer asking a party or a witness questions which are answered under oath and recorded by a court reporter. It can be helpful to your lawyer to view the demeanor and credibility of a witness in a deposition prior to your trial. Often the parties are deposed. Witnesses and experts, however, may also be deposed. Experts almost always charge an hourly fee to be present for a deposition. Depositions are not always taken in a divorce case. You should discuss the pros and cons of the taking of depositions with your lawyer.

Custody Cases Generally:

The decisions relating to custody of the minor child(ren) to the marriage are considered under the best interest of the child(ren) standard. Even though your attorney is hired by you to zealously represent you, your attorney cannot ethically act in a manner contrary to the best interest of your child(ren). Even if both parents reach a settlement, a court will not approve your agreement unless the Court agrees that it is in the child’s best interest.

Both you and your spouse will be ordered by the Court to attend a co-parenting class to assist you in co-parenting with your spouse in the future.

In the event that an agreement on custody cannot be reached, there are several ways that this dispute can be addressed by the Court. The Court can appoint a Guardian Ad Litem (GAL) to represent your child’s interests. The Court can also order the parties to participate in an independent custody evaluation with an experienced forensic psychologist. This usually includes mental evaluations of the parties and interviews with the children. The independent child custody evaluator will issue a written report which is given to the parties and the judge. The independent child custody evaluator will also usually testify at trial.

Settlements

With rare exception, judges will order the parties to attend mediation prior to a trial. There are many good mediators in the greater Memphis area with a lot of experience in mediating high-conflict cases. Mediation is a great opportunity to resolve your disputes in a manner that is tailored to your specific needs and the results generally last much longer than if ordered by a Judge.

If the parties are able to settle the matter prior to a contested divorce hearing date, one party, usually the Plaintiff, will make an appearance at an uncontested divorce hearing. The uncontested divorce hearing is very brief. The Court will then enter the Final Decree of Divorce and Parenting Plan if children are involved.

In the event that you are able to settle your divorce lawsuit, there are certain agreements that you and your spouse will enter into. One is a Marital Dissolution Agreement. This document covers the financial aspects of the case, including the division of assets and debts of the marriage. It will address, among other things, the equity in your home and transfer of title, the division of your personal property, health insurance, life insurance, retirement benefits, etc. If you and your spouse have minor children, you will also have to enter into a Permanent Parenting Plan if you settle your divorce lawsuit. This document covers all aspects of custody, child support, and designation of the primary residential parent and the alternate residential parent.

Trials

If your case is not resolved by agreement, you will proceed to court. The length of the trial depends on the number of outstanding issues. The main issues that will be decided by the judge are which party will be granted the divorce and on what grounds; if there are children, which parent will be awarded primary residential parent status and what the parenting schedule will be; the division of the marital assets and debts; whether or not alimony will be awarded; the determination of child support; whether or not attorneys fees will be awarded; and the payment of court costs. Once the matter is heard by the judge, the judge will issue a ruling, which either party can appeal to the Tennessee Court of Appeals.

Divorce cases rarely end when the trial ends. There may be many matters that need to be resolved as a result of the judge’s ruling, such as making sure the retirement assets are properly divided, ensuring the real estate transfer is properly recorded, and transferring the automobile titles, among other things. Also, there can be enforcement and contempt issues which have to be handled.