03 Aug Divorce Law; Difference Between MDA and Complaint
Many of my client meetings start like this:
Me: “Tell me what brings you into the office today”
Client: “Well, I got this piece of paper in the mail (or dropped off by a live person), and I know it means that my spouse wants a divorce, but I’m not sure what else it means. Namely, when is my court date, do I have do sign it, and what happens next?”
Me: “That depends on whether it is a marital dissolution agreement or a complaint for divorce, may I look at it? …”
There are two very different documents that you might receive if your spouse decides to initiate a divorce. One of these documents is called a “Complaint.” A complaint is a formal court document that has been filed with the clerk of court to initiate divorce proceedings. Once your spouse’s attorney has filed the complaint with the clerk’s office, a process server or sheriff must serve the complaint on you (i.e. hand-deliver it to you) in order for you to be officially “served.” Once you have been served, the clock starts ticking — you have 30 days to file your “Answer,” which is your formal response to each allegation in the complaint (per Rule 12.01 of the Tennessee Rules of Civil Procedure).
You definitely need an attorney to assist you in filing your answer, so do not put it off. Contact an attorney immediately — the clock is ticking once the complaint is in your hand. If you do not answer the complaint within 30 days, the court can enter a default judgment against you. A default judgment means that your spouse will get everything that he or she asked for without your agreement and without having to prove anything to the judge. I have had clients call me the day they got served, and I have had clients call me on about day 28 after getting served. As you can imagine, the process is much smoother and more thorough for the people who call attorneys immediately.
The other type of document that you might receive if your spouse decides to initiate a divorce is called a”Marital Dissolution Agreement” (MDA). MDAs provide for the division of all assets and debts between you and your spouse (cars, personal property, house, mortgage, credit card debt, tuition debt, retirement accounts, bank accounts, etc). MDAs are usually sent via mail (rather than someone coming to deliver it in person), enclosed with a letter from your spouse’s attorney. MDAs are sometimes sent before a formal complaint for divorce has been filed. Receiving a proposed MDA does not start any ticking time clock, like a complaint does. Sure the opposing attorney may say something like, “please respond within two weeks or we will assume that you have declined the offer and do not care to make a counteroffer.” But, even if you fail to respond to an MDA from the other side within the time period that they specify, they will not be entitled to a default judgment. Rather, they will likely file a complaint as described above to formally initiate a divorce proceeding.
There are a few very important things to remember if you receive an MDA. First, the other party’s attorney DOES NOT REPRESENT YOUR INTERESTS. Though the deal may seem fair to you at first blush or their letter might be really nice (and you want to get the divorce over with as quickly as possible), it is essential to have your own attorney review the agreement. This does not necessarily have to cost a lot of money. Go to an attorney and tell her that you are inclined to agree to the MDA, but that you want her to spend an hour or two reviewing the MDA just to cover your bases. This shouldn’t cost you much money and could save you an immense amount of headache in the future.
Second, you DO NOT have to sign the proposed MDA. The MDA document will look official and will likely come with a letter from an attorney on his or her imposing letterhead. Remember that the document is nothing more than a proposal from which to begin negotiations, and you should not feel obligated to sign it. If both sides are able to reach an agreed-upon MDA, then it can be filed along with a complaint for a no-fault divorce without much fuss. If you cannot agree on the MDA, then that’s fine too — you will simply go through the traditional divorce process.