1. How long does it take to get divorce?
The minimum statutory waiting period for a divorce based on irreconcilable differences is 60 days after filing if there are no minor children and 90 days after filing if the couple have minor children. Contested divorces generally take from 6 months to 2 years to complete because of motions, discovery, and trial. It is generally less costly and more expedient to get a divorce for irreconcilable differences but the parties must agree on all terms in order to enter into a Marital Dissolution Agreement.
2. What is a Marital Dissolution Agreement?
A Marital Dissolution Agreement is sometimes called an MDA for short. An MDA is a document that divorcing parties enter into that separates your assets and liabilities. To put it another way, it is the document that tells who is going to get what. (i.e. Husband to take the 2005 Ford Explorer, Wife to take 2007 BMW).
3. My divorce is uncontested, so can one attorney handle our case?
My firm will not represent both parties in a divorce because it creates a conflict of interest. If both you and your spouse have agreed on everything and there is nothing else to work out, it may be possible for me to represent one party and do all of the legal work. In this case, my firm would only represent one spouse and, if the agreement broke down for some reason then I would continue to only represent that party.
4. What is the process for getting divorced in Tennessee?
The basic procedure for a divorce based on irreconcilable differences:
- Make an appointment to come in to begin the paperwork
- File for divorce with the court
- Prepare and sign Marital Dissolution Agreement
- Prepare a Permanent Parenting Plan if there are minor childrren
- Hearing in court to determine if the agreement meets Tennessee Law
- If the Judge agrees and approves then a Final Decree is entered
The basic procedure for a contested divorce
- Make an appointment to come in to being the paperwork
- File for divorce with the court
- Give notice of filing to the other spouse by service of process
- The other spouse files an Answer to the petition within 30 days
- Discovery: depositions, interrogatories, Request For Production of Documents and other fact finding
- Motions: depending on the facts of your case
- Final decree is issued that grants or denies the divorce and states the grounds relied upon if the court grants the divorce and the court divides the property and debts. If there is children then the court awards custody and visitation.
5. Can a divorce be granted if the defendant’s whereabouts are unknown?
Yes. If the filing spouse has made a ‘good faith effort’ to locate the missing spouse, and can swear under oath and penalty of perjury that they do not know the current whereabouts of the defendant and have made an effort to locate them, the missing defendant can be ‘served’ by publication of a notice in a local newspaper.
6. Can I date someone else while I go through the divorce?
NO. Until the Judge grants the divorce you are still legally married while the divorce is going though the court. Therefore, dating someone else could effect the outcome of your divorce. However, if you are dating someone make sure your lawyer knows about it so they can advise you how to proceed.
7. How does the Court determine who will be the Primary Residential Parent (i.e. who will have custody)?
The guiding factor for courts in custody determination is the best interest of the child. Tennessee law does not allow the court to consider the gender of the parent in awarding custody. In making an initial custody determination the court will consider all relevant factors including:
- The willingness and ability of each parent to facilitate and encourage a close relationship between the child and the other parent
- The parent’s ability to instruct, inspire, and encourage the child
- The strength, nature, and stability of the child’s relationship with each parent
- Any refusal to attend a court ordered parent education seminar
- The disposition of each parent to provide the child with food, clothing, medical care, and education
- The love, affection, and emotional ties existing between each parent and the child
- The degree to which a parent has been the primary caregiver
- The emotional needs and developmental level of the child
- The character and physical and emotional fitness of each parent
- The importance of continuity in the child’s life
- Evidence of abuse of the child or the other parent
- The preference of the child if older than 12 years of age
- Other factors that are relevant to the court
8. Must child support still be paid if we have agreed on joint custody? (Joint custody meaning both parents have equal parenting time)
In Tennessee child support still must be set according to the Tennessee Child Support Guidelines even if both parents have equal time with the children, so in other words yes child support will still be ordered by the judge.
9. How is alimony determined?
Tennessee has a specific statute that sets the guidelines for spousal support. Either party to the divorce may seek spousal support. The court may award support when it finds that one party is economically disadvantaged relative to the other spouse. Some factors that the court will consider in awarding alimony are:
- The earning capacity and resources of each party
- The education level and training of each party
- The length of the marriage
- Each party’s separate assets
- The division of marital property
- The ages of each party
- Need for the primary residential parent to stay home
- The standard of living of the couple during the marriage
- The relative fault of each party in the divorce
- Other contributions that each party has made to the marriage including tangible and intangible contributions
- Other factors that are necessary to consider the equities between the parties