Divorce FAQ

When people find out that I am an attorney practicing in the fields of divorce and child custody, they often quietly corner me at parties, after church, or in the grocery store line and ask if I would be willing to answer a few questions. I am always happy to do this.  I’m including all of the most frequently asked questions below. I encourage you to read the information below while you consider divorce and child custody.

Please know that the answers to the questions below are NOT legal advice and do NOT create an attorney-client relationship between you and me. The answers below are simply intended to provide general information about Tennessee’s divorce and child custody laws. They also represent some of my first-hand observations in many different Middle Tennessee courtrooms over the years. No single answer is one-size-fits-all, and there are literally exceptions to every rule. If you want legal advice about your particular situation, then please call my office to set up a meeting with me.

What is the divorce process, in general?

The divorce process largely follows the process of any other civil lawsuit and is governed by the Tennessee Rules of Civil Procedure (just like a car wreck or breach of contract or other civil suit). The lawsuit is initiated by filing a complaint for divorce. The other side will then be served (hand-delivered) a copy of the complaint for divorce and a summons to answer the case. The party (“party” just means a person on one side of the lawsuit—you could substitute “the person on one side” or “husband or wife” of “a spouse,” and “parties” means the people on both sides) who was served will then have 30 days to file an answer (and counter-complaint if they choose) to the complaint for divorce.

The parties typically then begin the discovery process. Discovery allows each party (i.e. each side) to learn everything that the other side knows, particularly details about the parties’ assets and debts and who will be testifying at trial. There are a variety of means to discover information in a lawsuit, oftentimes including Requests for the Production of Documents (asking for things like bank, stock, and retirement account statements, credit card statements, mortgage documents, phone records, etc), Interrogatories (these are written questions that you have to answer, like “why do you want a divorce,” “why do you claim that your spouse engaged in inappropriate marital conduct,” or “do you think your spouse is a good parent and why or why not,” etc), and Depositions (scheduled time when the other lawyer gets to ask you questions in person and under oath).

After the parties have finished discovery, they are required to go to mediation. Tennessee has a law that requires mediation except in some limited cases. Mediation is when both sides and their lawyers go to the office of a neutral mediator (usually a very experienced divorce attorney who will have a good idea of what the court might do at trial). The mediator will take turns going back and forth to each party with their attorney (typically sitting in different conference rooms) in order to try to settle all of the terms of the case.

If mediation is not successful (i.e. the parties are unable to come to a settlement agreement), then the case will be set for a trial. Divorce trials are in front of judges without juries. Each side has the right to put on proof in the form of calling witnesses and cross-examining the other side’s witnesses, as well as showing the judge documents or other evidence that you believe proves your case. Parties oftentimes have experts testify at their divorce trial—these experts may be psychologists or psychiatrists who have treated the parties or their children, expert accountants who will estimate the value of a business interest, or real estate experts who will give property appraisals.

Once the judge has heard proof, he or she will divide the assets and debt between the parties, possibly order alimony, and decide issues related to the children if the couple has children (visitation/custody, who will pay insurance, daycare, child support, etc).

How long does it take to get divorced?

Tennessee law requires that a complaint be on file for 60 days before the divorce can be granted by the judge if the parties do not have children. The complaint has to be on file for 90 days if the parties do have children.

In all honesty, a divorce will likely be on file or “pending” for much longer than 60 or 90 days. As outlined above in detail, the stages of the divorce process will likely take between 6 months to 2 years (could be closer to 2 years if the case is ultimately tried and the court has a busy trial docket). This also depends on the court that you are in—some courts have busier calendars than others. For instance, in May 2017, I was in a court that was already setting trial dates in 2018.

Does someone have to take the fault?

No, not if you and your spouse agree to a no-fault divorce. There are basically three ways to deal with fault:

1. Settle all issues with a Marital Dissolution Agreement, MDA (this is a divorce settlement agreement for all property issues, debt, and alimony), and Permanent Parenting Plan (this is the document that deals with all issues regarding the children, if the parties have children). If the parties settle everything via an MDA and Parenting Plan, then the divorce will be granted based on irreconcilable differences and neither side has to take blame for the fault.

2. Agree that neither of you will have to take blame for the fault, but have a trial in which the court decides all property issues, alimony, and issues regarding the children.

3. Have a trial where the judge decides whose fault the divorce is as well as all property issues, alimony, and issues regarding the children.

**Note about fault** There are 15 grounds for divorce under Tennessee law, and only 13 of those involve fault. Besides providing the basis for the court to award a contested divorce, fault is usually not a major factor in divorce and child custody under Tennessee law. Fault cannot be considered when deciding how to divide property and debt (so, for instance, under Tennessee law, one spouse cannot get the house just because the other spouse cheated). Fault can be considered in awarding alimony, but it is not usually a major factor.

Can parties settle property division and child custody issues out of court, or does a judge have to decide those things?

Yes, parties to a divorce can settle all issues with a Marital Dissolution Agreement, “MDA” (this is a divorce settlement agreement for all property issues, debt, and alimony), and Permanent Parenting Plan (this is the document that deals with all issues regarding the children, if the parties have children). If the parties settle everything via an MDA and Parenting Plan, then the divorce will be granted based on irreconcilable differences without either side having to take blame for the fault.

One item of note here is that an MDA is a contract between spouses that is enforceable as any other contract would be under Tennessee law. But, a Parenting Plan is not a stand-alone contract. The judge must make his or her own, affirmative finding that the Parenting Plan is in the best interest of the children, no matter what the spouses have agreed upon. So, it’s possible that the court could require changes to the Parenting Plan before it is approved.

When should a person move out of a shared home?

This is a hard question because every situation is different. My observations below are only speaking to situations where there was NO domestic violence or other danger (drug use, alcoholism, etc) present. Certainly, if there is danger present then the police should be contacted and safety should be the number one concern.

If a person is seriously considering moving out, then it is wise to talk to an attorney about the individual situation, as there are situations in which moving out could be argued to constitute desertion, absenteeism, or abandonment (these are three grounds for a fault-based divorce).

In general, Tennessee law does not specify that one side or the other has to move out when a divorce is filed. Instead, the law allows both parties stay under the same roof until the divorce is over and all of the property has been divided up. If there is domestic violence, danger, or other special circumstances, then an attorney could file a Motion for Exclusive Possession (asking the court to make the other party leave the home) or a party could seek an order of protection (the police and sheriff’s department can help someone file an order of protection).

Is a stay-at-home parent still entitled to half of the couple’s assets?

Let me start with the list of “ifs.” IF there is no prenuptial agreement to the contrary, and IF the marriage is not short-term (in the case of a short-term marriage, usually around seven years or less but no hard and fast rule defining short-term, then courts usually divide marital property in a way that places parties in the position they would have been in if the marriage had never taken place), then both parties are entitled to an equitable division of marital property.

So, what is marital property? Tennessee is what’s called a dual property state (as opposed to a “community property” state like California and Texas), which means that property can be either “separate property” or “marital property.” Separate property generally includes property that was owned before the marriage, gifts acquired at any time, property that was inherited at any time, and certain damages from lawsuits (like pain and suffering awards). In a divorce, each party keeps his or her own separate property.

Marital property generally includes anything that the parties acquired during the marriage, which includes money from both spouses salaries, retirement benefits, a home that was bought together, etc.

What is an equitable division of the property? Courts are required to make an equitable division of a divorcing couple’s marital property. Tennessee law sets forth 11 factors that the court must consider in dividing property (things like the duration of the marriage, the parties’ vocational skills, employability, earning capacity, needs, contributions to the marriage, wasteful spending, value of separate property, property already owned at the time of marriage, current economic circumstances, tax effects of division, social security benefits, and other factors). The law does NOT require that marital property be split precisely 50/50. But as a practical matter, I have seen courts oftentimes divide property as close to 50/50 as possible. This may be 45/55, 48/52, 56/44, etc.

Can a spouse who has never worked still get half?

IF there is no prenuptial agreement and IF the marriage is not short-term, then yes, it is absolutely possible that a spouse who has never worked outside of the home could be awarded approximately half of the marital property. As explained above, the court would still have to categorize all property as either marital or separate, then apply the statutory factors in order to equitably divide the property.

What about debt? Could a spouse be on the hook for the other spouse’s debt?

Just like marital property must be divided equitably, Tennessee case law requires that debt is also divided equitably. Courts usually divide debt based on the following considerations: (1) which spouse incurred the debt; (2) what was the purpose of the debt; (3) which spouse benefitted from incurring the debt; and (4) which spouse is better able to repay the debt?

If a spouse inherits property from his/her family during the marriage, does the other spouse get half of the inherited property in a divorce?

The default answer under Tennessee law is that an inheritance is your separate property, such that the other spouse cannot get half of it in a divorce. But, there are circumstances in which the inherited (or gifted) property can be transmuted (which means turned into marital property even though it was originally separate property). One way that this can happen is by commingling. Commingling could occur if someone took inherited money, but then deposited it into the parties’ joint checking account and began using it to pay family bills. It would be very difficult to separate that inherited money from joint money, plus, most or all of the inherited money would be gone.

Do women who divorce have to give back their diamond engagement rings?

The default answer is no. In general, Tennessee law views an engagement ring as a conditional gift. The gift is conditioned on the promise to marry. So, once a person gets married (even if she gets divorced later), the condition has been met such that the ring is hers to keep.

But on the other hand, if the person with the ring cancels the wedding before it ever happens, then she has not met the condition to keep the ring.

Are pre-nuptial agreements valid and enforceable? What if it is an old pre-nuptial agreement?

The default answer is that pre-nuptial or ante-nuptial agreements are valid, enforceable contracts in Tennessee as long as they were entered into by both spouses “freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse.” There is no time limit on a prenup’s validity, so assuming that it meets all other requirements, a 20-year-old prenup is just as valid as a 2-year-old one.

When a court analyzes a prenuptial agreement, it looks at all of the circumstances surrounding signing the prenup. No one single factor is dispositive, but rather, it is up to the court to analyze many factors, such as: whether both parties had their own independent attorneys, whether both parties had plenty of time to analyze the document before getting married, whether the parties knew everything about each other’s assets and debts, whether there was unfair bargaining power or pressure for some reason, the business sophistication of each party, and the duration of the relationship prior to execution (when they signed it) of the prenup.

How is alimony awarded under Tennessee law?

This is one of the hardest questions to answer. Tennessee law does NOT provide a guarantee for alimony, and it does NOT provide a formula for calculating alimony. There are 3 major kinds of alimony that courts can award: (1) permanent monthly alimony; (2) lump sum alimony (usually paid up front); and/or (3) rehabilitative or transitional alimony.

From my experience and courtroom observations, it seems that courts usually expect an unemployed spouse to go back to work in order to generate some amount of income (this may not be the case if the parties are very old, handicapped, extremely rich, or in some other unusual situation). It is not often that courts award permanent alimony. Instead, Tennesse courts have said that the point of divorce is to separate the parties’ lives and not to keep one party dependent on the other party forever. So, courts are much more likely to award some type of rehabilitative or transitional alimony. This type of alimony is only awarded for a limited time period (maybe 6 months, maybe 2 years, maybe 8 years, etc) in order to help the other spouse increase his or her earning capacity or otherwise adjust to being divorce and get back on his or her feet.

In awarding alimony, a court is required to look at the party requesting alimony’s need for it, and the other party’s ability to pay it. Alimony is very situation specific. You should consult with a lawyer about your particular situation if you want an idea of whether an alimony award is possible in your case (and if so, what kind of alimony and how much).

How is child support awarded under Tennessee law?

Tennessee child support calculations are completely the opposite of alimony—the trial court has very little discretion about how much to award, and the amount of child support is almost completely determined by state law. The Tennessee Department of Human Services publishes a child support worksheet in Microsoft Excel available on its website HERE [link to http://www.tennessee.gov/humanservices/article/child-support-guidelines-downloads]. This worksheet will calculate the exact amount of child support that one party will owe the other if certain information is entered: parties’ names and who is the primary residential parent, children’s names and birth dates, number of days of the year that each party has visitation (i.e. a 50/50 split means that each party gets 182.5 days), each party’s GROSS monthly income (before taxes), amount spent for daycare, and amount spent for children’s healthcare (these are the major components, but there is also other information that can be entered for additional credits or expenses).

So, for instance, if the parties have 2 children (aged 5 and 7), Mother makes $100,000 per year, Father makes $50,000 per year, they have a 50/50 split of time with Mother designated primary, Mother pays $1200 per month for daycare and $300 per month health care, then she will owe Father about $100 per month in child support. If Father pays the $1200 daycare and $300 health care then Mother will owe him approximately $1600 per month.

Who gets custody of the children under Tennessee law?

This is by far the most important thing to most people going through a divorce. Tennessee law does not have any hard and fast formulas for child custody. Instead, our law says that the decision must be made based on the best interest of the child. Courts are required to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child” consistent with the factors listed that the court must consider where applicable.

Tennessee law does not take into account the gender of the parents in deciding child custody, and I have seen many fathers fight for primary custody of their children. The factors for courts to consider in setting custody arrangements are as follows (copied and pasted verbatim from Tennessee law):

  • (1) The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
  • (2) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
  • (3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
  • (4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
  • (5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
  • (6) The love, affection, and emotional ties existing between each parent and the child;
  • (7) The emotional needs and developmental level of the child;
  • (8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
  • (9) The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
  • (10) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
  • (11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
  • (12) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
  • (13) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
  • (14) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
  • (15) Any other factors deemed relevant by the court.

It is up to the judge in order to determine how much emphasis to place on each one of these factors. My observation is that many courts place particular emphasis on No. 2 above: the willingness of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. In my opinion, most (if not all) courts expect parents to completely put aside their differences when it comes to co-parenting after a divorce (again, I am not talking about cases involving physical abuse, chemical dependence, or other danger).

How can people protect their children throughout the divorce process?

First off, courts expect that neither party discuss anything about the divorce with the children or in front of the children. I recently saw a judge get upset that a party told the children that there was a hearing in the divorce case on that particular day.

Of course, divorces affect everyone in a household, including the children. Many couples with whom I work take their children to a psychologist or family counselor during the divorce. Oftentimes, the parties also go to the same counselor for individual or joint appointments centered around supporting the children through the process. I think this is wise and can’t help but think that these parents have better tools (from a mental health professional) to help their kids through the process.

How much does it cost to get divorced?

Family law attorneys typically charge an hourly rate for their time, rather than a flat fee.  Attorneys nearly always require a retainer fee before they are willing to start on a case.  Retainer fees are like an advanced deposit on your bill. Retainer fees are kept in a trust account and used to deduct the amount of the client’s monthly bills. Retainer fees are typically determined based on how complex and lengthy a case is going to be.

What if a person knows that they have the marital funds hire an attorney, but just doesn’t physically have access to the money?

In cases where the parties do have the marital funds to hire attorneys but one spouse does not physically have access to the funds, then attorneys sometimes file motions asking the court to make those marital funds available so that both parties are able to hire their own attorneys.