Memphis divorce lawyer, Miles Mason, Sr. explains the Tennessee divorce process and how divorces work from beginning to end, steps, filing, records, procedure, cost, getting a divorce, and contested and uncontested divorces. Does Tennessee require separation before divorce?
Understanding the Tennessee divorce process is important. In Tennessee divorce law, there are only two ways to end a marriage: a divorce trial or a settlement. Almost everyone agrees that a settlement is less traumatic and does less damage to everyone involved, especially children. Certainly it costs less than a trial, and very few divorces these days actually end in a trial. Before a settlement is reached or a trial held, there is the divorce process.
The Tennessee Divorce Process: How Divorces Work Start to Finish. Does Tennessee require separation before divorce?
In Tennessee, filing a “Complaint” begins the divorce lawsuit process. The person who files for divorce first is Plaintiff. Sometimes this is called a Petition for Divorce.
Tennessee requires that certain statistical information be disclosed in a Complaint for Divorce. The Certificate of Divorce, a form processed by the state of Tennessee, must also be filed.
After the Complaint is filed, the Clerk of Court issues a Summons. For a lawsuit to begin, both the Complaint and Summons must be served on the other spouse. Certain requirements for service must be met or the divorce may not being granted. Generally, in Nashville (Davidson County), Franklin (Williamson County), or Memphis (Shelby County), a Sheriff’s Deputy or a private process server will serve the Complaint and Summons on the other spouse. A new way of serving process is by mail. A lawyer can mail another lawyer or an individual a lawsuit, and the individual receiving the lawsuit can sign a Waiver of Service of Process, acknowledging receipt of the lawsuit by mail. This can help keep down expenses. If the person receiving the Request for the Waiver of Service of Process refuses to accept service by mail and refuses to sign the waiver, the person seeking to serve the Complaint or Petition can ask the Court to assess the costs of the process server to the person refusing to sign the waiver. For more, see 5 Advantages of Filing First in My Tennessee Divorce.
The next step in the legal process is the Answer and Counter-complaint. In most Tennessee divorces, the recipient of the Complaint for Divorce will answer and file a countersuit. The countersuit, called a Counter-complaint, is in essence the same thing as a Complaint, but against the original Plaintiff. The Answer will usually deny all allegations in the Complaint and ask that the Complaint be dismissed. The Counter-complaint will generally ask for relief similar to that requested by the Plaintiff.
Most divorce Complaints allege no-fault grounds, irreconcilable differences, and fault grounds (the “fault” most often being inappropriate marital conduct). Even though a Complaint may allege inappropriate marital conduct that doesn’t mean that fault will become a central issue in the case or that the divorce will be contested. There are legal reasons for including certain allegations and requests for relief which may or may not be likely to succeed.
For example, a parent who files for divorce may not actually be seeking custody of a child but may request child support from the other parent.
In almost all Complaints and Counter-complaints, lawyers include requests that the Court order every possible relief even if the requested relief is not realistic. This isn’t an attempt to intimidate or embarrass the other party – it’s just routine.
When a Complaint is filed, if a party alleges fault grounds (usually inappropriate marital conduct), a temporary injunction can be issued automatically without independent judicial approval. This “Automatic Injunction” (sometimes also called the “Mandatory Injunction”) prevents the sale or transfer of certain assets, prevents the dissipation of marital funds, and enjoins (prohibits) one party from threatening physical harm against the other and from harassing him or her. The Automatic Injunction is effective against both parties at the same time. Make sure you understand the terms of the Automatic Injunction if one has been issued in your case. If this Automatic Injunction is violated, the person violating the order can be sent to jail for contempt of court.
If the parties don’t immediately begin settlement negotiations, the next phase of the lawsuit is called discovery.
Discovery commonly begins with the filing of Interrogatories (written questions that must be answered under oath), and a Request for Production of Documents (requiring the other party to provide certain documents). The answers and documents must be produced within 30 days. Other forms of discovery include depositions, subpoenas, and Requests for Admissions.
The discovery process can be short and inexpensive or lengthy and very expensive. The extent of discovery usually depends on the size and make-up of the marital estate.
For example, if one of the parties owns a business which has many employees and produces significant income, the other spouse will most likely hire an expert to review the books and records to determine the company’s value. Performing a business valuation can be one of the most expensive aspects of any divorce.
In some divorces, the parties agree to exchange discovery informally, without using the formal legal system. This can reduce costs significantly. One reason a lawyer may advise against proceeding with discovery informally, even though it saves money, is that the documents produced by an opposing party will not be produced under oath. Answering interrogatories under oath means that the person answering the questions is swearing to tell the complete and full truth and is subject to the criminal penalty of perjury. Most divorcing spouses aren’t willing to commit perjury, and risk prison, to gain an advantage in a divorce. Further, if one spouse lies or omits assets under oath during the discovery process, the other spouse can use that lie or omission to allege circumstances sufficient to undo the divorce because he or she relied on the misstatements or incomplete production of documents.
Depositions are another common form of discovery. An advantage of a deposition is that your lawyer will be able to view your spouse live and in action, seeing a “performance” similar to what might occur in a courtroom at trial. Further, in interrogatories and requests for production of documents there is often the need for follow-up questions, but that’s usually not possible. At a deposition, a lawyer can ask a follow-up question right away.
One important disadvantage to the deposition process is that it can be very expensive. During the deposition, at least two lawyers will be billing time, in addition to the court reporter’s fees for attendance and transcription. It’s not unusual for a lawyer to spend at least twice the number of hours preparing for a deposition than he or she spends actually taking or defending a deposition.
Depositions may take place before or after mediation.
For Tennessee couples with children, divorce creates a new set of parenting challenges. Some aspects of the parent-child relationship will change, hopefully for the better. In Tennessee, divorcing parents must attend a four-hour parenting-through-divorce class before a divorce is granted. This class emphasizes many important principles divorcing parents need to learn and apply, including the important point that it’s the parents who are divorcing — not the children.
You may be the one paying your lawyer’s bills, but your lawyer has an obligation as an officer of the court to act in the best interests of your children — even if that conflicts with your own interests.
Courts can use several methods to obtain information about the parents and decide which parent should assume the role of primary residential parent. One of the most common methods is the appointment of a guardian ad litem (“GAL”). The GAL will often be a lawyer but can also be a mental health professional or a social worker. The GAL will interview the parents, and the child’s teachers, neighbors, and daycare providers, as well as other people who are regularly around the children.
Usually, the GAL will write a report with recommendations to the judge. Most judges will not read the report until the trial begins. In high-conflict cases, the GAL may also be deposed by one or both attorneys. Often, after the parties’ review the recommendations they reach a compromise. If no agreement is reached and the court must resolve the dispute, the judge will read the report and will likely be influenced by it. Usually, the GAL also testifies at the trial.
Instead of, or in addition to, a Guardian Ad Litem, a court can order an independent child custody evaluation by an experienced and independent court-appointed forensic psychologist. Normally, the evaluation will include mental health evaluations of the parties. Custody evaluations by psychologists are expensive and will normally be ordered by the court only upon allegations of mental illness, drug use, or emotional abuse. The American Psychological Association has issued guidelines for its members who conduct these evaluations, which can be helpful to read if your case involves a custody evaluation. Usually, the independent court-appointed forensic psychologist will conduct psychological testing on the parents (and possibly the children), interview the children, and also write and issue a written report to the judge. The psychologist usually also testifies at trial. For more information, see Miles Mason, Sr.’s article published in the Tennessee Bar Journal, A Guide to the Independent Child Custody Evaluation.
A party may also hire a forensic psychologist as an expert witness to support his or her position. Most often this occurs if one party says the other has some form of mental illness. The accused parent can consult with a psychologist to have that psychologist form an expert opinion to refute the allegations against and defend his or her ability to act as primary residential parent.
One of the most difficult and problematic, but common, situations arises when the children are the only witnesses to a parent’s violent, destructive, or offensive behavior. Often, the children’s testimony would be the best evidence to demonstrate a parent’s poor behavior. Almost all psychologists and judges advise against calling a child as a witness in a divorce case for any reason. There are few experiences more traumatic for a child than to be asked a question where the answer will hurt one or both parents. Many lawyers agree and will refuse to call a child as a witness unless the matter involves severe physical or emotional abuse.
Many divorcing parents mistakenly believe that at some age a child has the right to decide with which parent to live with. That is false. In Tennessee, the rule is that if a child is 12 or older the judge must hear the child’s testimony about his or her preference for primary residential parent, either in the courtroom or in the judge’s chambers. No judge will allow the preference of a child alone to determine who gets custody case. The judge must always consider the best interest of the child.
Unfortunately, one of the most common abuses of the divorce process is using the children as pawns – raising custody and visitation issues to gain an advantage in financial matters. These tactics unnecessarily increase the tension in the family, which inevitably hurts the children and makes settlement much more difficult. If the judge interprets these tactics as an attempt at vengeance, the consequences can be devastating.
Judges use common sense in evaluating a party’s parenting practices during the divorce process. Most judges believe that violating these common-sense parenting rules demonstrates that the parent was either unwilling or unable to exercise good judgment.
Related Link: Custody FAQs
A few suggestions for parenting during a divorce:
The Tennessee Divorce Process: How Divorces Work Start to Finish
The next phase of the divorce — often the final phase — is the negotiated settlement. Most lawyers and judges agree that a settlement will almost always be more favorable than the outcome of a contested trial. Settlement is better because there are more opportunities for compromise and thoroughness via settlement than in a court’s ruling.
For example, a mother who expects to be awarded primary residential parent status can negotiate that the father will pay certain college expenses for the children. In a divorce trial, the trial court has no authority to impose that obligation upon the father because Tennessee courts generally can’t impose parental obligations for adult children.
Also, divorcing spouses who settle can usually keep the terms and process private. At trial, friends and family will likely be called as witnesses, putting the spouses’ personal problems on public display.
In addition, people are more likely to comply with an agreement they’ve negotiated – rather than with one imposed by a court. And enforcement of a court order can be very expensive.
Another advantage of the negotiated settlement is that a divorcing party can retain more control. The decision of whether or not to settle a divorce case is the client’s and only the client’s. While a lawyer may recommend for or against a proposed settlement, the final decision still remains with the client.
The process by which a divorce reaches a negotiated settlement varies from case to case.
In one common method, one of the lawyers will be the first to draft a proposed Marital Dissolution Agreement and, if there are children, a proposed Permanent Parenting Plan. The other party can respond by making a counter-proposal, requesting mediation, seeking discovery, or asking for additional information.
Generally, a party will have the right to complete discovery and perform a reasonable investigation into the value of the other party’s assets before being compelled to attend mediation. Mediation is an informal settlement process in which the parties meet with a neutral third party who has been trained in mediation.
Mediation is discussed in more detail in other portions of these materials. In divorces, mediation is generally required prior to setting the case for trial. While mediation is not required by law in cases not involving children, many judges will order divorcing parties without children to attend mediation prior to granting a trial setting.
One bit of good news about mediation is that, while many people believe mediation can be a waste of time, money, and effort, statistics show that over 60% of cases which are mediated either settle during the mediation process or before trial.
In almost all circumstances, mediation will save the parties a significant amount of attorney’s fees if the case settles. Preparing for mediation requires knowing the value of all the other party’s assets, knowing the amount of his or her current debts, and having a clear idea of what a reasonable settlement may be.
Depending upon how much the parties can learn through discovery before mediation, preparing for mediation may require either a little or a great deal of effort. In an average contested case, trial preparation can cost three to ten times as much as mediation preparation.
Related Links: Mediation FAQs
If settlement negotiations and/or mediation fail, the case will head towards trial.
Some courts will force a trial date on the parties to give them a deadline for negotiations. Other courts will require the parties to apply for a trial date. In either event, preparing for trial can be the most expensive of all the processes previously discussed.
Pre-trial preparations include, but are not limited to: conducting depositions, interviewing witnesses, hiring and preparing expert witnesses for valuations and other expert testimony, preparing court-mandated pre-trial pleadings, preparing for direct and cross-examination of the parties and witnesses, preparing for opening and closing statements, preparing the client for testifying, organizing the file and trial exhibits, completing research on legal issues unique to the case, and looking for appellate cases with specific facts and legal issues similar to the case’s.
No one wants a trial. Trials are expensive and unpleasant. But a trial is sometimes the only alternative to a continuing stream of unreasonable settlement demands or an unwillingness to negotiate at all. Placing your future in the hands of a judge, who may be much different from you, is very risky, but may be necessary.
Court rules require the lawyers to prepare pre-trial briefs for the court, outlining important issues of the case. Judges usually read these briefs before the trial or scan them during opening statements.
At trial, the judge will decide the following issues: (1) who will be granted a divorce and on what grounds; (2) who will be granted primary residential parent status and what the allocation of residential time with the children will be; (3) how the marital assets and debts will be divided; (4) whether temporary or permanent support in the form of alimony will be awarded; (5) how much will be awarded in child support; (6) whether attorney’s fees will be awarded; and (7) against whom court costs will be assessed.
During the trial, the plaintiff’s lawyer usually speaks first, followed by the defendant’s counsel. The plaintiff’s counsel then puts on proof, calling witnesses and introducing documents and items into evidence. Then the defendant’s lawyer does the same. The plaintiff may be granted some limited opportunity to offer rebuttal testimony, and then the court decides whether or not to hear closing statements.
A divorce trial can last from one morning to several weeks. A judge can hold one trial on custody and then have another trial on property division and alimony. Depending on the court’s schedule, a judge can receive testimony one day and wait weeks, even months, before continuing. Although unusual, the judge can even hear more than one case at a time.
Following closing statements by the attorneys, the judge can immediately rule on the case – but doesn’t always. If the judge takes additional time to review the facts and evidence and issues a written opinion days or weeks later, this is called taking the matter “under advisement.” This can be a very stressful time for the parties.
Once the judge issues a decision, the parties have thirty days to appeal. Normally this is done by filing a “Notice of Appeal.” If either party chooses to appeal the trial court’s ruling, in effect he or she is asking the Court of Appeals to find that the trial judge made a mistake of law.
The time necessary for an appeal is usually between eight and eighteen months, depending upon the length of the trial and the complexity and number of legal issues involved. There is no time limit for the Court of Appeals to render its decision, but cases typically take another nine to twelve months to finish.
Finally, following the appellate court’s decision, either party may ask the Supreme Court of Tennessee to review that decision. The Supreme Court of Tennessee is not required to hear any particular case. In recent years, the Supreme Court has been hearing only about ten family law cases per year. The time required for Supreme Court review could be an additional twelve to eighteen months.
Most divorcing parties believe that a divorce winds up immediately after a settlement or a ruling by the court. Rarely is that the case.
In most divorces, there’s a significant amount of work to be done after a Final Decree of Divorce is signed by the judge. Examples of things to do include: preparing, executing, and filing Quit Claim Deeds transferring ownership interests in real property; obtaining refinancing for real property; changing designated beneficiaries on life insurance policies and retirement benefits; drafting, reviewing, executing, and filing Qualified Domestic Relations Orders; transferring title on Certificates of Title for automobiles; and transferring possession of property as directed by the court or by agreement of the parties. Divorcing parties are often surprised at the expense required for completing all of these transactions.
Whether the terms of the divorce were agreed to between the parties or decided by the judge at trial, there may be the need for modifications following the divorce. Child support is the most common example.
A change in the obligor’s income may require an increase or decrease in child support. In many cases, alimony may need to be modified due to a change in residence, a change in employment, or other circumstances.
Custody and visitation can change as well.
However, some things cannot be changed after a divorce – including property and debt division. Also, transitional alimony and alimony in solido most likely cannot be changed unless the court or the agreement has designated otherwise.
Related Link: Divorce Recovery
If one of the parties fails to follow a court order, the other party may be forced to bring legal action to enforce the order. This is most often accomplished by filing a Petition for Contempt.
The three most common examples of a divorced party needing to seek enforcement of the divorce decree are when the ex-spouse fails to pay support, fails to turn over property, or refuses to allow court-ordered visitation.
If the problem is failure to pay support, the court may issue a wage assignment or garnishment. Or the court may order the Sheriff to take possession of money from a bank account. Papers are drawn by the attorney, filed with the court, and served by the Sheriff along with a “Scire Facias” pleading. This pleading sets forth the court order, describes how the party failed to follow the court’s order, and states that the party was capable of complying with the court’s order. Usually the court will sign an order setting a hearing date and compelling the other party to appear in court to show cause why he or she should not be held in contempt of court. Following the hearing, the court may choose to jail the person who violated the court order.
Elements of civil contempt include proving that a person CAN presently comply with a court order and is simply choosing not to. Elements of criminal contempt include proving that an individual COULD HAVE complied with the court order but chose not to do so.
An example of civil contempt is when one party has the ability to sign over half of an IRA to a former spouse but chooses not to complete the paperwork as agreed to by the parties and/or ordered by the court.
An example of criminal contempt is when a party had the ability to pay court-ordered support but chose to spend money on other items, such as a vacation or luxury item.
Depending on the facts and circumstances surrounding the contempt allegations, the amount of money at issue, and whether or not jail is seriously at issue, a petition for contempt can be a short and simple process or a very involved and lengthy procedure, costing more than some divorces.
Initiating contempt proceedings should be a party’s last resort. A person should think carefully before filing a petition for contempt to make sure that specific goals can and will be achieved and that there are no other alternatives.
Another category of post-divorce actions involves dealing with intentionally or unintentionally undisclosed assets. If a party failed to disclose the existence of an important asset or debt during the divorce process, the other party may choose to re-open the divorce by filing a post-judgment motion. Normally there are time limitations for bringing such actions. However, if one party relied upon an asset disclosure provided under oath as part of discovery and that disclosure failed to include the undisclosed asset, the wronged party may choose to assert a claim.
