Frequently Asked Questions (FAQ) About Divorce
1. What is the difference between a contested divorce and an uncontested divorce?
We have a saying in our office that the difference between a contested divorce and an uncontested divorce is the same as the difference between a horse and a unicorn. One exists and the other doesn’t! All kidding aside, from the lawyer’s standpoint, the truly uncontested divorce is extremely rare.
Usually this question is asked in connection with a fee inquiry, and with the expectation that an uncontested divorce should cost far less than a contested divorce. This may or may not be the case. Non-lawyers typically think of an uncontested divorce as a “no fault” divorce or sometimes a case where the couple have agreed to only one thing—that they want to divorce. The truth is that the vast majority of cases involve some negotiation in order to achieve a full settlement appropriate for filing with the Court. Those issues, no matter how small, must all be agreed upon in advance for an attorney to consider your divorce truly uncontested.
Although some clients have already agreed to all issues necessary to form a final settlement before one or both of them retain counsel, it is extremely rare since most non-lawyers do not know every issue that needs to be agreed upon. For that reason, we do not distinguish between a contested or uncontested divorce when determining our retainers and fees. Obviously, the more issues you and your spouse can agree upon, the less work your lawyer will have to perform and the lower your attorney fees will be.
WARNING: If you’ve been presented with an agreement or parenting plan to sign, PLEASE DO NOT SIGN ANYTHING UNTIL YOU HAVE AN ATTORNEY REVIEW IT AND ADVISE YOU OF THE CONSEQUENCES OF SIGNING IT. Once you’ve signed a Marital Dissolution Agreement, in most cases it can’t be changed unless you and your spouse agree to change it. Once you’re locked into a Parenting Plan, it’s difficult to change. Trying to undo a bad agreement is far more expensive than simply getting legal advice before you sign it. We routinely consult with clients to review settlement proposals.
Signing a legal document without the benefit of proper legal representation and advice does a disservice to you and your children, and it can have far-reaching, long-lasting consequences that you never anticipated and that you may regret for years to come.
2. How much child support will be awarded by the Court?
The amount of child support is determined by applying the Tennessee Child Support Guidelines. Support is determined using several factors including the amount of time each child spends with each parent, each parent’s income, the cost of work–related child care, the cost of healthcare coverage, unusual or special expenses for the child, only to name a few.
WARNING: You should discuss the issue of child support with your attorney prior to entering into any agreements with your spouse regarding child support (or anything else for that matter), because the law is not as simple and straightforward as it may appear!
Often, once child support has been awarded, events may take place such as the birth of another child by either parent, or an increase or decrease in the income of either parent, which may make your case suitable for a modification of the support amount. If you believe your child support amount should be modified, you should consult with an attorney to determine if this can be accomplished. You and your spouse (or former spouse) should not modify the amount of child support by informal agreement, because the Court must approve any such modifications.
3. Will my spouse be entitled to alimony?
This depends on a number of factors which you should discuss with an attorney. The law requires a fact based analysis of several factors including the duration of the marriage, the income and resources of each spouse, and other factors. Usually, when alimony is appropriate, the goal is to help a disadvantaged spouse transition to being self-supporting, or to allow the disadvantaged spouse to become less disadvantaged by returning to school or career training. Occasionally, permanent alimony is appropriate. Regardless of the type or duration of alimony, the amount of alimony is determined by the needs of the spouse receiving alimony and the ability of the other spouse to pay it.
You should never agree to any alimony amount with your spouse prior to consulting with an attorney. Alimony awards may not be modifiable or may be extremely difficult and/or costly to modify should circumstances change. It is essential that you understand your rights, whether you are seeking to receive alimony, or whether you are the spouse who may be required to pay it, before you make any agreements with regard to alimony.
4. Who will receive custody of the children?
Tennessee no longer favors the term custody. Instead we refer to one parent as the primary residential parent and the other parent as alternate residential parent, and both parents have parenting time with the child or children. So the question becomes who will be primary residential parent and how will parenting time be allotted.
The goal in Tennessee is for children to spend as much time with each parent, consistent with the children’s best interests.
What a Court determines to be in the best interests of your children is dependent on on a number of factors, which you should discuss with your attorney. The law requires that any agreement between parents or any court-ordered parenting scenario must be in the best interests of the children. Courts will allow a variety of different schedules depending on what makes sense for your children and your family, so long as it is in the best interests of the child or children. Sometimes one parent will have the children the majority of the time and the other parent will spend time with them on weekends and evenings, or parents may have substantially equal time with the children.
Rarely one parent has the children all of the time if the other parent is unable or unwilling to spend time with the children (military deployment, incarceration, illness) or if the Court determines that it is not in the best interests of the children to spend time with the other parent (child abuse, domestic violence, alienation of the other parent).
If you and your spouse are able to reach an agreement as to parenting time and other issues relating to the children, including child support, division of holidays, decision making, etc., your attorney will prepare an Agreed Permanent Parenting Plan which will be presented to the Court at the final hearing in your case. If you are unable to agree on all issues with regard to the children, it may be necessary for you to have a trial before the Judge or Chancellor. You should consult with an attorney prior to making any agreements with regard to parenting issues. Once a Permanent Parenting Plan is signed and approved by the Court, it can be difficult and extremely costly to make changes to that agreement.
5. How long will my divorce take?
It depends. Your divorce may, depending on your situation, be finalized within approximately two and a half months, or it may not be finalized for several months and in some instances, years.
If you and your spouse are able to quickly agree to a property settlement (if you have minor children, you must also agree on all parenting and support issues), then your divorce could be finalized after sixty (60) days or, if you have minor children, after ninety (90) days from the date of filing. Typically, it may take a week or two beyond the expiration of the waiting period to schedule a court date for your final hearing. Even when all issues have been settled and all necessary items have been signed and filed, circumstances beyond your lawyer’s control may create unforeseen delay.
Unfortunately it can be difficult for divorcing families to address and agree on every issue that needs to be included in your settlement. As a result, the typical divorce may take anywhere from six months to one year. In those instances where couples are unable to take an amicable and cooperative approach, it is not unusual of for a divorce to drag on for more than a year. The more issues you and your spouse are able to agree on, the less time it will likely take for your case to be completed and your divorce finalized.
DO NOT MAKE WEDDING PLANS BASED ON YOUR EXPECTED COURT DATE.
Believe it or not, through the years we have had clients who have actually ignored this important advice regarding remarriage. Your final court date may change for a number of reasons ranging from the judge’s calendar to your own or a family member’s illness, unexpected work travel, etc. You should not plan to remarry until you have actually been declared divorced, plus an additional thirty (30) days have passed. This is because an Order of the Court, including a Final Decree of Divorce, may be set aside for good cause within thirty (30) days from the date the Judge or Chancellor signs it. If you have remarried prior to the end of the thirty (30) day period, you will have created a very unfortunate situation for yourself and for your new spouse, which can be avoided if you simply wait.
For parents of small children, we recommend waiting longer than the minimum thirty (30) days prior to remarrying. Even an amicable divorce between loving parents can be stressful and confusing for small children. Introducing new romantic partners should be handled with care and with a sense of respect for what the child or children have experienced. We urge our clients to give the needs of their children the highest priority when making decisions relating to dating after a divorce and especially remarrying.
6. Will I have to go to court?
If you and your spouse are able to agree on all issues necessary for a complete divorce settlement, you may or may not have to appear in court. If you are the Plaintiff, you will have to go to court in order to have your final hearing even if you and your spouse agreed on all issues. This is normally a simple and very brief hearing. Your attorney will prepare you for your final hearing by explaining the type of questions you will be asked. Sometimes, a witness may also be required at a final hearing. If you are the Defendant, you may attend the final hearing but you are not required to appear if all issues were resolved by agreement.
If you and your spouse are not able to agree and your lawyer or the other lawyer requests a hearing or trial, you will have to appear in court. Your lawyer will advise you about when and why this might happen, and what to expect.
7. How much will my divorce cost?
The attorney fees will be based on the hourly rate charged by your attorney and the amount of time required for your attorney to complete the work necessary to complete your case. The cost of your divorce will depend on a number of factors that may be difficult to predict and are often impossible to control. For example, if your spouse’s attorney files numerous pleadings with the Court which require a response from you, then your attorney will obviously have to spend a great deal of time preparing your response.
There are some things you can do to keep costs down such as keeping your finances and documents well organized and promptly responding to your attorney’s requests for information from you. Additionally, you may be able to recover some or all of your attorney fees from your spouse if the Judge orders it.
8. Do I have to hire a lawyer in order to get divorced?
No. You can represent yourself in any lawsuit including acting as your own attorney in a criminal case but this is generally a very bad idea. A non-lawyer is not excused from knowing how to proceed in a lawsuit. You will be held to the same standard as a licensed attorney. Before being admitted to practice law, all attorneys must graduate from college with a four year degree, and then they must attend three years of law school after college. Afterward, all attorneys must pass their state’s bar exam before they can represent clients in lawsuits or give legal advice. It is easy to imagine that if it takes seven years to learn enough to represent clients or give legal advice, then it is probably not a good idea to attempt to represent yourself.
Divorce cases can be extremely difficult and deal with complex issues. When you consider what is at stake, namely your children and all of the assets you have worked hard to attain, it makes sense to consult with an attorney and hire one rather than attempting to handle your case yourself.
9. My spouse and I want to have an amicable divorce. Will we have to go to court?
In most cases, you or your spouse will have to go to court even in an amicable divorce. In very rare instances, your personal appearance may be excused, however this is extremely unusual. Normally, the Plaintiff or Counter-Plaintiff must appear and give testimony as to the grounds for divorce and the settlement of financial and parenting issues. Although you may have to sit in the courtroom waiting for your case to be called, once the Judge has called your case, this hearing may last only two minutes. Apart from the stress normally associated with divorce, this hearing is not difficult. Your attorney will explain the questions you will have to answer ahead of time so you should not be nervous.
You will also be required to appear in the event any issue of your divorce must be litigated.
10. Will my spouse have to pay my attorney’s fee?
Maybe. Sometimes, parties will agree that one spouse will pay the attorney fees for both parties. Often, when a divorce is litgated, the Court will order one party to pay some portion of the other party’s fees. If the Court orders your spouse to pay your fees, then he or she will be required to do so, however you will normally be expected to pay your attorney and then be reimbursed by your spouse if you received an award of attorney fees.
Often each party pays their own attorney whether the divorce is settled or if a trial is held. Your lawyer can discuss the various reasons why you might be entitled to an award of attorney fees. The bottom line is, an award of attorney fees is subject to agreement between you or your spouse, or is awarded at the discretion of the judge.
11. Can my spouse and I use the same attorney?
This firm does not represent both parties in any divorce action, even when all issues have been agreed upon prior to your initial consultation. However, if you and your spouse are able to agree on all of your issues, you may decide that one of you will hire an attorney to draw the necessary documents to complete your divorce, and you may decide to divide the fees paid to the lawyer.
12. Can I date other people now that my spouse and I are separated?
NO! Until you are divorced, you are still married. Do not date anyone until you are divorced. This means that you should not date until a judge has signed your Final Decree of Divorce. If you do decide to ignore this advice and begin dating prior to receiving a divorce, you should do so knowing that your choice will likely greatly increase the expense of your divorce. Additionally, it is a very bad idea to introduce new dating partners or bring them around your children. This is particularly true if you are still married, but is also true for recently divorced parents. Parents should make it a priority to be sensitive to their children’s needs and should recognize that it may be very difficult for children to feel comfortable with the fact that you are spending time with dating companions other than the other parent.
13. Do I have to let my spouse see the children?
Unless you have concerns for the safety of your children you should let your spouse see them even before the Court orders you to do so. Children need both parents unless one parent is not fit to be around them. If you are angry at your spouse, you should not punish them by preventing them from spending time with the children. If you do so, you will not only be depriving the children of the relationship with their other parent, but you will not look like someone who is willing to make choices in the best interests of the children when it comes time for the judge to decide who will be designated as primary residential parent, and when you may spend time with your children.
If you suspect that your spouse may harm the children, or that he or she will behave in an upsetting manner around them, and/or if you are fearful that your spouse may take the children and leave the jurisdiction, you should immediately notify your attorney so that an order can be requested allowing you to lawfully withhold the children from your spouse.
14. Do I have to move out as soon as I file for divorce?
No. You and your spouse can continue to reside together if you agree to do so. Both spouses have the right to live in the marital home until they agree that one party will retain possession of the marital home and the other party will move out, or until the Court orders one of the parties to move out. Sometimes couples find it impossible to live together peacefully and in that case it is a may be a good idea to contact your lawyer and request that the Court order your spouse to move out. Other times, couples are able to get along together and may find that it is less expensive to remain in the same house until it is sold or the divorce is settled.
15. What should I wear to court?
Dress nicely and conservatively, in a manner that shows respect to the Court. You do not have to wear formal attire, but you should not wear shorts or jeans, t-shirts with printed messages on them, worn out or frayed clothing, or anything designed to attract attention. You should not wear revealing clothing. This is simply not an issue for most of our clients.
16. Why does it cost so much to hire a lawyer?
Many people believe it is expensive to hire a lawyer. Your lawyer must be paid for his or her time just as you must be paid for time spent at your job, and in addition to that, your lawyer must pay a tremendous amount each month in order to employ a staff and maintain an office where legal work can be performed. Unfortunately this means that lawyers must charge their clients at rates that are sometimes difficult for clients to pay. Our office is sensitive to the difficulty clients may face and for the convenience of our clients we welcome VISA, MasterCard, Discover and American Express. If you do not have a credit card, you may wish to consult your bank or credit union to obtain a line of credit or loan to assist you in paying your legal fees.
Generally the money you spend to hire a lawyer should be considered in connection with what you are seeking to protect with your investment in legal representation. If you and your spouse are not able to agree on a financial matter or alimony, spending a few thousand dollars to hire a lawyer may save you several times that amount if you know your rights and can make informed decisions about settlement of your divorce. If you and your spouse are unable to agree as to parenting issues, your time with your children and your child support amount (whether you receive it or pay it) are at stake. These are very important issues to everyone and making the investment in hiring a lawyer makes good sense.
17. Can I still talk to my spouse once I have hired a lawyer and filed for divorce?
Yes. If you and your spouse are able to calmly converse and discuss issues relating to your divorce, it can be much easier and less expensive than if all communications go through your respective lawyers. If, however you or your spouse is unable to communicate without becoming upset or angry, then it may be best to allow the lawyers to communicate with one another. It may also be best to have your lawyer speak to your spouse’s lawyer if you feel your spouse is a strong negotiator or is persuading you to accept settlement terms to which you do not want to agree.
Always speak respectfully to your spouse or do not speak to them at all. Conduct yourself at all times as if you are being recorded and videotaped and the judge is watching. For one thing, you will not be doing anything to help yourself or your case by acting in a disrespectful manner toward your spouse, and for another, you just might be recorded or videotaped and a judge could wind up hearing or seeing you one day!
18. Will my children and I still be covered under my spouse’s health care plan once I file for divorce?
When a divorce is filed, neither party is allowed to cancel the health insurance of the other party or the children. If your spouse attempts to cancel your coverage or that for your children, you should immediately let your lawyer know.
Once a divorce is finalized, you will no longer be able to covered by your spouse’s insurance but your children may still be covered. Continuing coverage for a former spouse in most instances is available only for a limited period of time, is usually expensive, and may not be available under an employer’s policy.
19. What is a Guardian Ad Litem?
A guardian ad litem is a lawyer who’s appointed by the Court to represent a child’s best interests. The guardian ad litem is tasked with gathering and presenting facts for the Court′s consideration, subject to the Tennessee Rules of Evidence.
A guardian ad litem is not appointed in every custody case, and Court’s are encouraged to appoint guardians ad litem “sparingly” and only when the Court finds that a child′s best interests are not adequately protected by the parties and that separate representation of the child′s best interests is necessary.
Effective September 1, 2011, the Tennessee Supreme Court revised its rule concerning the role of guardians ad litem in custody cases. Under the new rule, the guardian ad litem does not act on behalf of the Court. A guardian ad litem must gather and present evidence at trial, just as the parents’ attorneys must do.
Usually the Guardian Ad Litem’s fee is divided between the parents, however sometimes the Court will order one parent or the other to pay more than half or even all of the fee. The fees for a Guardian Ad Litem are similar to those of most attorneys.
20. What if my spouse and I agree that I do not have to pay child support?
The amount of child support is determined by the Tennessee Child Support Guidelines. It is possible to find situations where neither parent pays support for the children to the other parent. The Guidelines provide that the Court may allow deviations either upward or downward from what the amount as calculated under the Guidelines. If the amount of support is small, and the Court believes it is in the best interest of the children that no support be paid by either parent then this is permissible.
HOWEVER, a child support worksheet is still required to be completed and presented to the Court, and the Court must make a specific finding that the deviation from the Guideline amount is in the children’s best interest and is justified.