Nashville Divorce Lawyer
Divorce is the legal termination of a marriage and is a difficult and emotional experience. There are three basic types of divorce proceedings in the State of Tennessee: Contested, Uncontested and Default. If a Husband and Wife are able to reach an agreement on a division of marital assets/debts and parenting time (if applicable), then the divorce is considered an uncontested proceeding and is granted on the grounds of irreconcilable differences. If they cannot agree to these issues or other demands, such as alimony, then the divorce is considered contested and requires litigation and possibly a trial. For situations such as this, a fault ground must be alleged, such as inappropriate marital conduct, adultery or abandonment. If one party does not participate in the divorce proceeding, or their location is unknown, then the petitioning spouse proceeds with a divorce by default.
Tennessee does require parents to file a permanent parenting plan when they legally separate or divorce. Child custody laws have been rendered gender neutral and custody considerations are decided on the basis of what is in the best interest of the children. Although a child may have some voice as to where he or she would like to live, his or her preference is non-binding until the age of 18, when the child is no longer considered a minor.
Alimony, or maintenance and spousal support, is an obligation established by law that is based on the principle that both spouses have a duty to support each other during and sometimes after the dissolution of the marriage. Once divorce proceedings begin, either party may seek monetary support from the other. The amount and terms of support vary greatly with the situations of the involved parties. If one party is receiving support at the time of the divorce, it does not necessarily continue when the divorce is finalized, although it may. Unless the parties agree on the terms of their divorce settlement in a binding document, the court will make a determination based on testimony submitted by both parties. This arrangement may be modified at any time based on whether circumstances of either party change significantly.
During a contested divorce, spouses are not able to agree on such important issues as child custody or support and division of marital assets. In these cases of contested divorce, the litigation process takes longer, often much longer, to reach a conclusion. When the spouses cannot agree on terms to the dissolution of the marriage, they must appear before the court, which will make the final decision on all issues with which they were not able to come to terms. If possible, it is preferable to pursue an uncontested divorce, particularly where there are minor children involved. Divorce is always stressful and reaching terms without direct court intervention often makes it easier for all concerned.
During your initial interview with my office, all pertinent documents pertaining to your marital assets, minor-aged children and other important issues will be gathered. Together, we will attempt to determine a fair allocation of finances, as well as child custody and support issues. Your spouse will then have 30 days to respond to the divorce petition. After the response is filed, your case moves on to the discovery phase, in which both spouses are questioned and required to reveal information about marital assets, income, custody, alimony and child support concerns.
Following the discovery phase, the Court often encourages the spouses to come to an agreement or enlist the assistance of a skilled mediator who can help arrive at an equitable compromise. If the spouses are unable to come to an agreement, the discovery phase continues and the case will be scheduled for divorce court. During your actual divorce trial, if such is necessary, you and your spouse can present witnesses and evidence, cross-examine the other side’s witnesses and make closing arguments. When all testimony is heard, the judge will make the final decision regarding finances, child custody, support and alimony. The Judge will determine the asset and debt allocation and all issues of custody and child support. The Judge will divide marital property, as well. Marital property is usually considered anything acquired during the marriage except for gifts and inherited property. This includes pensions, 401(k) plans, real property and business interests to the extent that they were accumulated during the course of the marriage. Child support is determined by the incomes of both parents, taking into consideration daycare and health insurance expenses, and the amount of days that the minor children spend with each parent on an annual basis per the order of the court. In custody cases, the Court is to make a decision of primary residential custody based upon what it determines is in the best interests of the children. This will include the stability of the extended family unit of both parents, which parent has served as the primary caregiver, each parent’s ability to provide for the child in the future and several other statutory factors.
An uncontested divorce is a simpler way of handling divorce proceedings. An uncontested divorce occurs when both spouses agree to all of the terms of the divorce and enter into a Marital Dissolution agreement and a Permanent Parenting Plan, if children are involved. This provides for an agreement on the terms and grounds for the divorce itself, the division of marital property, the allocation of debts from the marriage and the amount, if any, of alimony. Because both parties are in agreement, uncontested divorce proceedings are much less costly, both financially and emotionally.
Often, parties to a divorce action have been separated for a substantial period of time and the party seeking a divorce does not know his/her spouse’s location. If this is the case, then a divorce can still be granted on a default basis. In some instances, the other party must be served with notice of the divorce action by publication in a local newspaper. This process takes somewhat longer than an uncontested divorce.
Going through a divorce is a very difficult experience. You need a dedicated and experienced divorce attorney working with you to protect your rights. Call the Law Office of Brad H. Frakes at (615) 248-7854.