Divorce & Post-Divorce Modification:
Getting a divorce is a difficult time for every person involved, and a basic understanding of the process can help to ease anxiety. However, it is important to remember that every divorce is different. Discuss the facts of your case with your attorney so that he or she can help you to understand how your particular case will proceed.
The following are generalized benchmarks for a contested divorce:
First, one spouse must retain an attorney. The attorney will draft a Complaint based on the facts of the case. The Complaint alleges grounds for divorce, states how the spouse wants to settle the marital estate financially, and may include a proposed Parenting Plan, detailing the filing spouse's proposal for division of parenting time for the parties' children.
The attorney will then file the Complaint with the appropriate Court and ensure the Complaint is then served on the other party.
The served spouse must file an Answer, admitting or denying all the allegations in the Complaint, in most cases, the served spouse will also file a Counter-Complaint, suing the other spouse for divorce. The Counter-Complaint will contain the served spouse's proposal for the dissipation of the marital estate and for parenting time with the children, if applicable.
The parties then exchange information in a process called "discovery." This information helps in determining property and debt division, and, where applicable, division of parenting time, child support and alimony. At any point in this process, the parties may reach a settlement, either through mediation or the attorneys. If a settlement is reached, the attorneys draft the appropriate documents and submit them to the court for approval by the judge.
If a settlement cannot be reached, the parties will go to trial. At trial, the parties will each present evidence and arguments to support their positions. At the conclusion of the trial, the judge will grant the divorce. The judge will also decide how to divide assets and debts and any questions of alimony, child support and parenting time. Either spouse may appeal the judge's decision to a higher court, but reversal of a trial judge's decision is not very typical.
If your divorce is uncontested (meaning you and your spouse have agreed on how to settle all aspects of your divorce) the process is typically shorter and much simpler. Your attorney will be able to explain the differences between contested and uncontested divorce to you.
Commonly Asked Questions
How long will a divorce take?
Every divorce is different, so it is difficult to say how long your divorce will take. However, there are specific waiting periods in Tennessee. These waiting periods apply even if the divorce is uncontested or the parties reach a settlement. If the parties have children, the parties must wait 90 days from the filing of the Complaint before being granted a divorce. If the parties do not have children, the waiting period is 60 days.
What if I'm already divorced but I want to change the Parenting Plan?
If you were divorced in Tennessee less than 30 days ago, you should consult an attorney as soon as possible, as there may be deadlines that affect your rights and ability to change the final decree. If you were divorced more than 30 days ago, you may need to file a Petition to Modify. The important question then becomes has there been a material change of circumstances since the divorce such that it is in the best interests of the children involved to change that decree. Many factors affect this determination, and you should consult an attorney to determine if your circumstances meet the threshold.
How does the Court determine custody of the children?
It is first important to note that in Tennessee, although the term "full custody" is still used in conversation, it is no longer a proper legal term. Instead, one parent will be named the "Primary Residential Parent" and the other will be the "Alternate Residential Parent." However, both parents usually retain the same basic rights to see and communicate with their children. To determine who will be the Primary Residential Parent in any given case, the Court examines many factors, including the following: the nature of the child's relationship with each parent, which parent has historically been the primary caregiver, continuity in the child's live and each parent's employment schedule. This list is by no means exhaustive and you should speak with your attorney about your individual case.
How does the Court determine child support?
Tennessee has very specific child support guidelines that must be followed, unless the judge finds there is a reason to deviate from those guidelines. These guidelines consider each parent's gross income, the number of days per year each parent spends with the child, health insurance premiums paid on the child's behalf, daycare costs, and whether either parent has other children he or she must support. A formula is then used to determine the child support obligation owed to either parent. Your attorney will be able to perform this calculation for you to give you an idea of the amount that may be granted in your case.
How does the Court determine alimony?
Alimony determinations in Tennessee are based mainly on the requesting party's need, and the other party's ability to pay. However, there are other factors that play into the decision, such as the length of the marriage, employment opportunities, fault in the divorce and each party's separate assets. Either the Husband or the Wife may be ordered to pay alimony.
How does the Court divide the assets?
Tennessee law calls for an "equitable" division of the assets and debts acquired during the marriage ("marital property"). Equitable does not always mean equal, and there are many factors the court will take into account when deciding how to divide the marital estate. However, there are some assets that are separate property and are not subject to division, including property owned before the marriage, property that was a gift, or inherited property. It is important to know that on some occasions separate property can become marital property. Consult with your attorney to determine whether your separate property has become marital property and to get a more accurate idea of how your property may be divided.
I have a friend who has already been through a divorce. Will my divorce turn out the same way?
No. It is essential to remember that every case is different. Just because your friend's situation seems similar to you, there may be other pieces of information you are not aware of that make your case vastly different. Your attorney can explain the differences between your case and that of your friend.
How much will it cost?
It is difficult to determine exactly how much your divorce will cost. This will depend on many things, including how long your divorce takes, the complexity of the issues, and the animosity that exists between you and your spouse. During your consultation, your lawyer will be able to give you a more accurate idea of the costs that may be entailed in your divorce. There are ways you can keep your costs under control. Your attorney should be willing to discuss these techniques with you.
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