OVERVIEW OF THE DIVORCE PROCESS

There are only two ways to obtain a divorce in Tennessee. Either the case will end by settlement between the parties or by trial. The vast majority of divorce cases settle in Tennessee for several reasons. Namely, settlement is usually quicker, less expensive, and allows the parties to retain control over the disposition of their case. And, there is no particular moment in the divorce proceedings when settlement may happen. 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 contains statistical information about the parties, the Husband and Wife of the marriage, as well as statistical information about the parties’ children, if any. The Complaint also 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 waive service of process.

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 requires an Answer, either admitting or denying the allegations set forth in the Counter-Complaint.

With respect to grounds alleged in the Complaint or Counter-Complaint, generally, irreconcilable differences, usually thought of as ‘no fault’ grounds, will be alleged along with a ground for divorce. The grounds for divorce in Tennessee range from adultery to cruel and inhumane treatment towards the other party; however, often the ground of inappropriate marital conduct is included as a ground in a Complaint or Counter-Complaint.

The filing of a ground in the Complaint, along with irreconcilable differences, causes the issuance of an Automatic Injunction against both parties which enjoins both parties from doing several things pending the entry of the Final Decree of Divorce, such as enjoins either party from dropping the other party from insurance, enjoins the dissipation of assets, and enjoins the removing of the minor children from the state without notice to the other party.

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 as well as the details relating to fault. 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 thrity days, however, extensions of time to produce the responses are usually given liberally.

The written discovery process can be inexpensive and informal or can expensive and lengthy. Usually, this will depend on the complexity of the case. For example, if there is a medical practice or a business that must be valued, a client can expect the written discovery process to be expensive and lengthy. On the other hand, in a more simple divorce, where the marital assets are known, the written discovery process can be inexpensive and informal. 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. A deposition might be taken of a witness, for example, if your spouse has a paramour. An issue in the division of the marital estate may be whether or not your spouse has dissipated the marital estate by spending marital funds on the paramour. It can be helpful to your lawyer to view the demeanor and credibility of a witness in a deposition prior to the Court hearing; however, depositions can be very expensive because of the lawyer preparation time, the length of the deposition, and the payment of the court reporter fees. Also, an expert witness almost always charges 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.

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 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.

The decisions relating to custody of the minor child(ren) to the marriage are considered undthe the best interest of the child(ren) standard. Thus, even though your attorney is hired by you to zealously represent you, your attorney can not act in a manner contrary to the best interest of your child(ren). Even if your attorney did act contrary to the best interest of your child(ren), chances are that a Court may not approve an agreement contrary to that 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 the custody case becomes contested, there are several ways, prior to a full-blown, hearing, that this dispute can be addressed by the Court. The Court can appoint a Guardian Ad Litem (GAL) to assist the Court in making a custody determination. The GAL< usually an attorney, acts as the advocate for your child(ren). The GAL will perform an investigation, including interviews, and issue a report which is presented to the Court. The GAL will make a recommendation regarding parenting time.

The Court can also order the parties to participate in an independent custody evaluation with an experienced forensic psychologist, usually in cases where there are allegations of alcohol and/or drug abuse allegations or allegations of emotional abuse. 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. This can become very expensive.

The Court usually will require that the parties attend mediation prior to having a divorce trial where custody is contested. There are many good mediators in the greater Memphis area which a lot of experience in mediating high conflict custody cases. Many times, the custody issues can be resolved in mediation.

People are generally at a personal low point when involved in the divorce process. People often lash out at their spouse and their children become the unintended victims of the process. Divorcing spouses should be respectful of their spouse and not take actions which impede the process. Frequently, spouses do not.

However, we always caution our clients to remember that any actions taken by them that are harmful to their children or that impede the process may be brought before the judge and can adversely affect their divorce case and custody dispute. Judges expect divorcing spouses to act using common sense and courtesy. Judges can and will punish parties who do not act accordingly.

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 haring. The uncontested divorce hearing is generally brief, and, at its conclusion, the Court enters a Final Decree of Divorce.

However, if the case is not resolved prior to the contested divorce hearing, the parties will proceed to Court. The length of the trial depends on the number of outstanding issues. Divorce cases are not tried in front of a jury in Tennessee. 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 in the event either party is not satisfied with the judge’s ruling on the case.

Although people believe that once the Final Decree of Divorce is entered, their divorce case is completed, this is not always the case. There can be many matters that must be addressed post-divorce, 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. All of these things can be expensive.

This overview of the divorce process in Tennessee is merely an overview. Different factual scenarios and specifics in cases may cause variations in the divorce process. We hope this overview helps you understand better the divorce process in Tennessee.