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Litigation or mediation – This is a question you should ask yourself at the commencement of divorce or separation. Here are the differences…
Litigation – involves a contested trial before a judge. Each party hires an attorney to represent their interest. Court litigation is lengthy and expensive. However, many people feel that it is the only way to feel that they have had a neutral person decide the issues. It is much more complicated than it appears. An average contested divorce in the Middle Tennessee area takes about one and a half years and will cost each party about $15,000. You need to talk about the specific issues in your case and the process. We will show you how the course of litigation works and how we keep an accounting of the costs.
Mediation – involves an out-of-court resolution process where you and your spouse (and sometimes your attorneys) meet with a neutral third party. The neutral third party is trained in negotiating techniques and will help direct the discussions. They do not decide the rights of the parties. The mediation may be another attorney, but is not necessarily one. Together you discuss the concerns of each party and legal position of each. Then you try to find a resolution that will meet the needs of each concern. Although it appears to be costly when you add the cost of the attorneys and the mediator, in the long run it is less costly and less emotionally painful. You also have the opportunity to determine the pace of the process. Mediations may be completed in one or two sessions or may take several months. Sometimes the parties will meet with one mediator to determine the property, alimony, and child support issues and another mediator with a therapeutic background to finalize the living arrangements of the children. Once the parties have reached a final settlement, the court will make their agreement an order of the Court.
Divorce and Separation
Divorce lawsuits are extremely complex because they are essentially five law suits in one:
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Grounds for Divorce - Who is granted the divorce.
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Child Residential Placement - Commonly referred to as child custody, child placement involves the living and visitation rights of each parent.
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Child Support - Support payments are granted in all but the most extraordinary cases. Child support is set on the income of the non-residential parent and other extraordinary circumstances, such as private school, medical needs, etc.
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Property Division - Tennessee is an equitable division state, meaning that the parties shall equitably divide the assets and liabilities. This does not necessarily mean "equal". But in today’s society, where both spouses are employed or have the ability to earn, the division will frequently be equal. It is very important to get a snapshot picture of the parties’ financial status at the very beginning of the divorce process.
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Alimony - Alimony, also called spousal rehabilitation, is the financial support awarded to a spouse. It may be set for a short period of time or a long period. Alimony payments will depend on a number of factors to be decided by the court, including the employability of each party, the size of the net estate of each party after the divorce, and the fault of the parties.
Child placement and support
Tennessee no longer uses the word “custody”. This has been replaced with the term “residential placement”. However, the concept remains the same. The minor children will need to reside somewhere and with someone. Although many parents are attempting to ‘share’ residential placement, this should be done with caution. Children need both parents, but also need stability. We have established successful “shared-parenting” households and the children seem to do well as long as the parents accept and appreciate the differing parenting styles in each household and don’t place the child in the middle.
Child support is determined in Tennessee under a “shared income” model. This means that the incomes of both parents are considered. It also considers the number of days the child spends in each household, the work-related childcare, the enrichment expenses of the child (sports, activities, and private education), and the cost of health insurance and other children that require support but are not part of the current order. If it sounds complicated, it is. Once all the required data is collected, the numbers are placed in worksheets that assist us in calculating the amounts. In addition, where a person is “voluntarily unemployed” or “voluntarily underemployed”, a certain level may be assigned to them by the Court.
Division of property / assets and liabilities
The initial phase of the divorce proceeding will be to identify and quantify the assets and liabilities of the parties. We will direct you in putting together this information. You first must classify the assets and liabilities as separate or marital. This will depend on how the asset was acquired. For instance, inherited property is separate property unless some act is taken to make it marital. Gifted property will also be separate property. However, winnings from the state lottery are marital.
Tennessee is an equitable division state, meaning that the parties shall equitably divide the assets and liabilities. This does not mean “equal”. In today’s society where both spouses are employed or have the ability to earn, the division will frequently be equal. However, the court will consider a list of factors, such as the duration of the marriage, how each person has contributed to the preservation or acquisition of assets during the marriage, and the potential for future acquisitions in making an equitable division. Tennessee is not a community property state, such as California, Texas, or Michigan. It is a delicate distinction between the two that we can assist you with.
During the divorce process, parties are required to maintain and preserve their assets, except for the reasonable expense of daily living. This means that you can not transfer your accounts, sell property, or create separate accounts during the divorce process if there is no agreement or court order allowing you to do so.
It is very important to get a snapshot picture of the parties’ financial status at the very beginning of the divorce process. During the course of the divorce, both parties become very suspicious of the financial activities of the other.
Alimony
Alimony is the financial support awarded to a spouse. It may be set for a short period of time or a long period. It may be in periodic payments or in a lump sum. It will depend on a number of factors to be decided by the Court, including the employability of each party, the size of the net estate of each party after the divorce, and the fault of the parties.
In Tennessee, a economically disadvantaged spouse (which may be the husband or the wife) may be entitled to receive support payments to transition to the work place, or to rehabilitate to the work place, in a lump sum or for an indefinite time period in the future (known as in futuro or periodic alimony ). The courts generally favor rehabilitation as long as both parties are healthy and have some minimum work skills. However, sometimes we will include the tuition of college or another vocational program to develop broader work skills.
The Court will consider a list of factors, such as the duration of the marriage, the education and skills of each party, the ability of one person to make the payments, and the needs of the disadvantaged spouse. It is a misconception that a spouse will be maintained “in the lifestyle they are accustomed to ”. You can never support two households on the same income that was used to support one.
Post divorce enforcement of court orders / QDRO's
Just when you think you have the divorce complete and all is said and done, you find out that the retirement accounts have not been transferred, the life insurance has not be secured, or the alimony is not being paid . This is where your ongoing relationship with your attorney is important.
QDRO's are the court orders that allow retirement accounts (401k, IRA, pensions) to be transferred to a spouse. These documents must be completed and filed with the Court for the Judge to sign. Then the papers must be forwarded to the administrator of the accounts to make the transfer happen. Too often, people leave the court room thinking this will all happen on its own.
Petitions for contempt – When the specific orders of the Court are not followed, a person make seek a petition for contempt of court against the other. These are taken very seriously by the court and can result in incarceration (being jailed), a fine, or the payment of the innocent persons attorney’s fees. Criminal contempt means that the person is incarcerated for each act of contempt. Civil contempt means that the person is incarcerated until the act has been completed (such as the money being paid). Unfortunately, you cannot successfully bring these actions without an attorney. They are just to technical and can easily be thrown out if done improperly.
Are you ready to proceed? You may email or call for a consultation appointment. We will forward to you an outline of the information we will need.
Skilled Tennessee Divorce Lawyers
At LawCare, we are committed to helping families in Nashville, Brentwood, and Franklin, Tennessee, deal with complex family law matters. Our firm can be reached by phone at (615) 661-0122, by e-mail, or by filling out our in-take form.
