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Divorce & Legal Separation

A Good Divorce is Better than a Bad Marriage

Intake form for DIVORCE or LEGAL SEPARATION request

There are two main ways of resolving divorce disputes: mediation and litigation. Divorce litigation is financially and emotionally expensive, often lasting more than eighteen months, costing thousands of dollars, and leaving decisions in the hands of a trial judge. Mediation provides a forum for people to reach negotiated divorce agreements that are agreed to by both people. When mediation is possible, it is usually the best option. However, complex divorce issues, the division of assets and liabilities, alimony, and child placement often drive divorce disputes into the courts.

LEGAL SEPARATION: Tennessee provides for spouses to seek a legal separation instead of a divorce. In a legal separation, you can divide the assets and liabilities, provide for the residential placement of children, and set up financial support payments. If a legal separation agreement is in place, and it provides for a disposition of all assets and liabilities, either party may submit the legal separation agreement to the court to finalize a divorce.

The advantage of a legal separation is that the parties are still married. This means that a spouse can remain under the insurance coverage of the insured spouse and that the parties maintain the legal relationship of marriage in the event of death or disability of a spouse.

DIVORCE

Divorce lawsuits are complex. Five separate issues must be decided:

  • Grounds for Divorce - Who is granted the divorce? The grounds for divorce in Tennessee include: abandonment, two years separation, adultery, inappropriate marital conduct, and irreconcilable differences.
  • Child Residential Placement - Commonly referred to as child custody, child placement involves the living and visitation rights of each parent. Prior to the completion of the divorce, the parent must attend a co-parenting class and complete a parenting plan. If the parents cannot agree on a parenting plan, the judge will decide.
  • Child Support – Child support is mandated by law. Tennessee uses the “income shares” model. Child support is set on the income of the non-residential parent, the costs of work-related childcare, the cost of health insurance for the children, the amount of time that each parent spends with the children, whether or not either parent has other minor children that they are supporting, and other extraordinary circumstances, such as private school, medical needs, etc.
  • 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.
  • Alimony - Alimony, also called spousal rehabilitation, is the financial support awarded to a spouse. 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, the separate assets of the parties, each party’s contribution to the marital estate, and the relative fault of the parties. Alimony in Tennessee is generally tax deductible for the person paying the alimony and taxable income to the person receiving the alimony. Tennessee has four classifications of alimony.

PERIODIC ALIMONY or ALIMONY IN FUTURO: In a long-term marriage, alimony may be ordered until the death or remarriage of the obligee spouse (typically the wife). Periodic alimony can be modified after the divorce.

TRANSITIONAL ALIMONY: Transitional alimony will be for a set period of time and for a set amount. It is intended to give one spouse time to adjust to their post-divorce financial status. Transitional alimony cannot be modified. It is intended to be for a short term.

REHABILITATIVE ALIMONY: Rehabilitative alimony will be for a set period of time and for a set amount. It is intended to give one spouse the financial means to acquire work skills and reenter the workforce. Rehabilitative alimony is modifiable.

IN SOLIDO: In solido mean “solid” or in one lump sum. This form of alimony is made in one lump sum which can be paid out of the assets or be set up on periodic payments. Attorney’s fees are sometimes ordered as alimony in solido. This form of alimony is typically not considered to be tax deductible for the payor.

Frequently Asked Questions about Divorce

Tennessee has a 60 day waiting period if there are no minor children from the marriage and 90 days if there are children. The first step is to file the “complaint” for divorce with the Court. The date of filing with the court is the start date for the waiting period. During the waiting period, we can still work out the details of the agreement between you and your spouse.

If you and your spouse cannot agree on all of the terms of dividing property and debt or on a schedule for the children; you will have to set a trial and let the Judge decide. This process will take longer and the Judge will still make you participate in mediation to try to reach an agreement. Most of the time, your attorney participates in the mediation with you.

The timing of the divorce will depend largely on you and your spouse. We will need to collect information to take to court like bank statements, income history, and debt history. Depending on the cooperation of the parties, or lack thereof, it could take a year to complete that process.
The costs of the divorce will depend largely on you and your spouse. Attorneys charge based on the amount of time they spend on your case. Our job is to protect your rights and advise you on what we believe would be an equitable settlement based on our knowledge of the law and years of experience in the court. Your spouse may not agree and force us to have a trial. We will itemize our legal fees and expenses on a monthly basis. Before we engage in expensive preparation, we will go over the cost of depositions, acquiring records, serving subpoenas, hiring experts, and preparing witnesses. We will advise you on the risk of NOT preparing for trial as well.

Our goal is to get you the best result with the least amount of legal fees. However, it is not a simple formula. Your spouse may have an attorney who intends to drive up the costs, incur unnecessary fees, refuses to produce records in formation, or creates additional chaos.

In our consult with you, we will go over the cost issues in more detail.
Tennessee recognizes Legal Separation. In a legal separation you are still married, but you can divide your assets and liabilities, set a residential plan for children, and establish spousal support; or you can simply enter a legal separation agreement that provides that the future assets and income will remain separate property. If you take the second option, you will still acquire debt and assets as though you were married.

See Legal Separation.
There are some advantages to a legal separation. One is that the spouse can remain on the health insurance coverage; which you cannot do if you are divorced. Let’s say a spouse has ongoing medical issues or is planning a major surgery; it might be better to have a legal separation until after the spouse has received treatment.

There might be other times that a legal separation is better than a divorce; such as when a certain asset is about to mature or vest and you want to wait until that has happened to determine the full value of the asset prior to a divorce.

Caution: Under Tennessee law, your private retirement accounts are marital assets. If you seek a legal separation, you will want to address the accrual of value in your retirement during the period of separation.
In Tennessee, you must make an attempt to “serve” your spouse with the divorce papers at the last known address. After you have attempted service at that address, you should make an inquiry with any persons that know your spouse, like their siblings, friends, or their last employer. These other resources may not cooperate, but at least you have tried. Then you have to file a motion with the Court to serve your spouse by publication. You have to pay for the publication in the county where your spouse last resided and the notice must run for four weeks. Once the notice runs and your spouse does not respond, you can seek a default judgment for divorce.
Often, homes must be sold in the divorce process. The home can be listed for sale on the multiple listing service OR it can be sold by auction. The factors that will go into consideration are: (1) who is going to stay in the house while it is being sold; (2) who is going to pay the mortgage while you are waiting on a contract; (3) who is going to make the improvements or repairs prior to the sale of the home; and (4) how long will you agree to keep it on the market.
Generally, debt that is incurred during the marriage is marital debt and both parents have an obligation to contribute to payment of the debt. Your marriage is a loose financial partnership and you are jointly responsible for the financial decisions of the other, good or bad. It is not unusual for one spouse to be a spender and one spouse to be a saver.

Occasionally, if your spouse has participated in irresponsible behavior, such a gambling, supporting a paramour, or addiction, you may ask the court for your spouse to pay any debt that incurred as a result of that behavior.

The critical thing to remember is that a JOINT debt is a contract with a third-party (the bank or credit card company). When you have signed on to pay an obligation, you are responsible for the debt regardless of court order. For both parties to make contributing payments, the bank will still seek payments from the original obligor.
Under Tennessee law, monies that you accrue during your marriage in your retirement account are a marital asset. The courts have even held that the increase in value of that account due to market changes may also be marital. Often the Judge will add together the retirement funds of both parties, divide them in half and then make an equalizing distribution such that one spouse must transfer a portion of their retirement account to the other spouse. If you have a 401k or 403b, this is done through a Qualified Domestic Relations Order (QDRO). If you have individual retirement accounts (IRA), this can be done be a direct transfer.
Tennessee does provide for the payment of attorney’s fees as a form of alimony. The payment of attorney’s fees is NOT intended to be punitive and depends on the amount of income of each party, the amount of property divided between the parties, and any separate assets held by the parties.
You can still get a divorce if you or your spouse are in bankruptcy. The most important thing to remember is that if only one spouse is in bankruptcy and there are debts in both names, the creditor may still seek to enforce payment against the spouse not in bankruptcy.

Bankruptcy does not require both spouses to enter into the petition. Sometimes one spouse will seek a bankruptcy. Remember that, again, if you have contracted for any of the obligations, you are not relieved from your contracts until the issues has been resolve.
There must be a determination of the father of the child. If the husband is the father, the Judge will only let you get a divorce during the pregnancy if you have provided for residential placement and support for the unborn child.

If the husband is not the father, the spouses will have to sign affidavits that the husband is not the father. The judge will be hesitant to allow the husband to deny paternity unless you have the biological father acknowledging paternity.
Clients often ask if they can date someone else after they have separated from their spouse. The legal answer is, “you are still married”. Adultery is grounds for divorce and, until the Court has granted a divorce, you are still married.

If either spouse has a new paramour, this can encourage a quicker settlement.
Filing a joint tax return while married is generally the most beneficial to both. However, during separation, this requires coordination and the exchange of financial documents. The determination of marital status for the IRS is December 31st. So if you are divorced anytime during the year and it is final before December 31st, you will have to file single.
Alimony payments are determined by considering the income of each party, the amount of assets each spouse will have after the divorce, any separate assets, the years of marriage, and the health of each party.

In Tennessee, a short term marriage is generally defined as five years or less, alimony is unlikely in a short-term marriage unless one spouse has sacrificed a career or other financial position for the marriage.

In marriages from five to fifteen years, alimony is likely, depending on the assets and income of the parties.

Over 20 years is considered a long-term marriage and, if the factors favor alimony, it is almost certain that Court will award it.
An inheritance is considered separate property as long as you have kept it in separate account. If inherited money is put in joint account or used to purchase a jointly held asset, like a car, it will be a joint marital asset.
Family Partnerships are often used to pass family assets like real property or a family business. Some partnership agreements forbid any spouse from acquiring an interest in the partnership; if it does not, then any increase in the value of the partnership interest could be considered a martial asset subject to division.
Business interests that have been acquired or increased in value during a marriage are a martial asset. However, business interests are valued by one of three methods: (1) fair market value (2) asset value or (3) capitalization. The fair market value method requires the court to consider whether there is a market for your “business”. The asset value requires you to place a market value on the assets of the business (such as real property and inventory). The capitalization method is more complicated and requires an accountant reviewing the revenue and several other factors. The costs of a valuation can be $10,000 or more.

In a divorce, when valuing a professional services business, there is no value attached to “good will.” In other words, if a spouse is a dentist, you cannot place a value on the “good will” generated by his relationship with his clients or quality of work.
When one spouse refuses to go to work and relies solely on the income produced by the working spouse, it can be frustrating trying to get a divorce resolution.

We will advise clients that it is important to visualize their life after the divorce. Non-working spouses are advised to develop a plan for going back to work. That may mean going back to school, getting a certification, or simply taking training classes to update their computer skills. Once you are in the divorce process, the Judge will want to know what you intend to do to support yourself. If you have a plan in place, it is easier to get alimony or extra funds from the marital property to execute your plan.

If our client is the working spouse, we will expect the non-working spouse to create a plan. If they refuse to do so, it will be detrimental to their request for long term alimony.
Debts incurred during the marriage are generally considered joint marital debt. If one party has gained credit cards in their name only and has secreted the acquisition of debt, this should be considered in the divorce settlement. This may require obtaining the credit card monthly statement to show the misuse of money.
Addictions are one of the leading causes of divorce. When one spouse has an obsessive addiction, their decision making will be compromised. This will affect their ability to parent, competently manage marital assets, and be a responsible spouse. Unless an addicted spouse makes a committed effort to control their addiction, destruction of the relationship is guaranteed.
When reviewing the history of the marriage, it is important to identify personality factors that have led to the destruction of the marriage. These same personality factors will affect the ability to negotiate a reasonable settlement.

Narcissism, obsessive-compulsive, bipolar, borderline personality, dependence – dominance, aggressiveness, and manic – depressive disorders must be considered. There may be a need for a psychologist to evaluate the spouses.
Unfortunately, some people are able to lie in a courtroom under oath without flinching. This is a harsh reality of the trial court system. If you believe your spouse is a pathological liar, we will need to investigate the allegations and gather evidence (photos, recordings, surveillance) to bring reality into the courtroom.
 
 
Nasvhille, Brentwood, TN LawCare Family Law Center provides experienced legal representation in family law matters such as adoption, surrogacy, prenuptial agreements, pre-marriage, premarital planning, separation, divorce, child custody, child support, probating an estate, estate planning, power of attorney, wills and trusts, living trusts, living wills and family business succession, representing clients throughout Middle Tennessee including Williamson County, Maury County, Davidson County, Sumner County, Robertson County, Rutherford County, and the cities of Brentwood, Nashville, Franklin, Spring Hill, Thompson Station, Columbia, Madison, Bellevue, Hendersonville, Gallatin, Murfreesboro, and LaVerne.