The Tennessee Divorce Process

 

The TN Divorce Process Explained from the Beginning to the End

 

In order to make your divorce legal, you must go through a legal proceeding in order to finalize your divorce.  The legal proceeding is even necessary if you and your spouse reach an agreement regarding all the issues, such as spousal support, the division of marital assets and debts, and child custody, child visitation, and child support. The legal proceeding begins with the filing of a complaint for divorce, separation, or annulment and ends with the complaint being dismissed, granted, or denied.

 

The goal of the legal proceeding is to end the marriage and decide child custody, child visitation, child support, alimony (sometimes called spousal support or maintenance), division of assets, division of debt, who is responsible for attorney's fees, and who is responsible for court costs.  A judgment can be based on an agreement between you and your ex-spouse or result from a contested trial. An agreement is usually less traumatic for you and your children, and less expensive than a contested trial. Thus, it is without surprise that most cases are resolved without a trial.

 

In Tennessee, divorce cases are handled by the Circuit and Chancery courts.  The divorce process in addition to how long the process takes varies from case to case.  If you would like a more thorough understanding of what your divorce process will likely entail, please feel free to schedule a divorce planning session with me.  The following is a general description of the typical divorce process in Tennessee.

 

Grounds for Divorce

The first step in a Tennessee divorce is determining whether or not you have grounds (or a reason) to receive a divorce in Tennessee.  Tennessee has two types of divorces: uncontested divorces, which are usually based on the ground of irreconcilable differences (also known as a no-fault divorce), and contested divorces, which require proof of grounds in order to receive a divorce (also known as a fault divorce). 

 

A divorce based on irreconcilable differences requires that the parties agree to all the terms of their divorce.  In an irreconcilable differences divorce, you and your spouse must enter into a written Marital Dissolution Agreement that makes a fair and equitable division of your property.   If you and your spouse have minor children together, you must also enter into a written Agreed Permanent Parenting Plan that makes adequate and sufficient provisions in writing for the custody and support of the minor children of the marriage. There are also additional technical requirements that you may view by referring to the Irreconcilable Differences Statute in the appendix, however, the Marital Dissolution Agreement and an Agreed Parenting Plan are the essence of an irreconcilable differences divorce.  As for assessing fault for the marriage breakdown, you only need to say that irreconcilable differences have arisen that will prevent you from living together as husband and wife.

           

A contested divorce is a case in which the parties have not agreed on all the terms of their divorce.  If you and your spouse are unable to reach an agreement on all of the terms of your divorce, then a trial may be necessary.  The grounds for a contested divorce are:

  • Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;

  • Either party has knowingly entered into a second marriage, in violation of a previous marriage, still subsisting;

  • Either party has committed adultery;

  • Willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year;

  • Being convicted of any crime that, by the laws of the state, renders the party infamous;

  • Being convicted of a crime that, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary;

  • Either party has attempted the life of the other, by poison or any other means showing malice;

  • Refusal, on the part of a spouse, to remove with that person's spouse to this state, without a reasonable cause, and being willfully absent from the spouse residing in Tennessee for two (2) years;

  • The woman was pregnant at the time of the marriage, by another person, without the knowledge of the husband;

  • Habitual drunkenness or abuse of narcotic drugs of either party, when the spouse has contracted either such habit after marriage;

  • The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct;

  • The husband or wife has offered such indignities to the spouse's person as to render the spouse's position intolerable, and thereby forced the spouse to withdraw;

  • The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide;

  • For a continuous period of two (2) or more years that commenced prior to or after April 18, 1985, both parties have lived in separate residences, have not cohabited as man and wife during such period, and there are no minor children of the parties.

The specific wording of the grounds statute can be found by reading the Grounds Statute in the Appendix. If you are filing for divorce, you should have your grounds before you file. If your divorce is not based on the grounds of irreconcilable differences, then you will need to provide proof of your grounds for divorce, even if your spouse admits to the grounds for divorce. Your proof may be in the form of depositions or having witnesses testify in open court. In Shelby County, the court typically requires to witnesses with actual knowledge of what occurred between you and your spouse to testify towards the grounds of the divorce.  One of the witnesses may be you. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for divorce for your spouse.  Pending the final divorce, you should not do anything to give your spouse any grounds for divorce because it can probably be used against you.

 

 

Defenses to the Grounds for Divorce

Defenses to the grounds for divorce include condonation and insanity. Condonation is knowing what your spouse did wrong but forgiving him or her anyway; this is usually proven by showing that you and your spouse had sexual relations after you found out what your spouse did.  This currently only applies to adultery.  Other defenses to adultery is that the spouse alleging adultery is guilty of a similar act, the husband allowed the wife to prostitute and received payment as a result, and the husband exposed to the wife to lewd company whereby the wife became ensnared to the act of adultery.  Please refer to the Defenses to Adultery Statute in the appendix for exact wording of the statute regarding defenses when the ground is adultery.  

 

Insanity is also defense to divorce if the person who is guilty of the grounds for divorce was insane when he or she committed the act.  The insanity must be to the same degree as in a criminal case.  If the person is insane at the time of trial, the case can still proceed against him or her but the court will appoint a lawyer to look after his or her interest.  The law of defenses is changing rapidly, and for technical reasons the defense that sounds as though it applies in your case might not apply.  Ask your lawyer about it.

 

 

Residence Requirements

            You may be granted a divorce in Tennessee: 1) if any of the grounds for divorce complained of were committed while you was a bona fide resident of Tennessee, or 2) if the acts complained of were committed outside of Tennessee and you resided outside of Tennessee at the time and you or your spouse have resided in Tennessee for at least six months before the filing of the Complaint.  Persons in the armed forces and their spouses who have been living in Tennessee for at least one year are presumed to be residents of Tennessee.  The presumption is only overcome by clear and convincing evidence of domicile somewhere else.  Simply stated, prior to filing your petition, you must have resided in Tennessee for at least six months, or have been a bona fide resident of Tennessee when the grounds occurred here.  Please view the Residence Requirements Statute in the appendix for the exact wording of the statute.

 

 

 

Venue

Your Complaint may be filed in the Circuit or Chancery Court: 1) in the county where you and your spouse resided at the time of your separation, 2) in the county where your spouse resides, if they are a resident of Tennessee, or 3) in the county where you reside if you if your spouse is a non-resident of Tennessee or a convict.

 

Some people wish to get divorced in another county; you can if both parties agree to it.  At one time, this was faster than getting divorced in Shelby County.  Now, however, Shelby County is as fast, or faster.  One advantage that still remains is that The Commercial Appeal does not publish out-of-county divorces.  However, even your dimmest family member or friend will eventually figure out that you are divorced.  One disadvantage is that if anything goes wrong–and there is much that can go wrong (alimony or support does not get paid, visitation is not working, and/or property was not transferred)–it is more expensive and complicated to straighten problems out if the divorce was granted in another county.  Please view the Venue Statute in the appendix for the exact wording of the statute.

 

 

 

Filing the Complaint for Divorce

The legal document that starts the divorce proceeding is the Complaint for Divorce.  Some people also refer to it as a Petition for Divorce.  A divorce begins when a Complaint is file with the court. If the parties have already reached an agreement regarding all the issues, then their Marital Dissolution Agreement is also filed with that court at this time.

 

If the parties have not already reached an agreement regarding all the issues when the Complaint is filed, then a Summons is also typically issued. The Petition and Summons notify the court and your spouse (when the Summons is served upon your spouse) that you want the court to end your marriage. It also lists what you are asking for, such as child custody, child visitation, child support, spousal support, assets division, debt division, attorney's fees, and costs. 

 

 

 

Contents of Complaint

Pursuant to T.C.A. 36-4-106, The Complaint is required to include the full name of the husband, the full maiden name of the wife, their mailing addresses, dates and places of their birth, race or color of each spouse, number of previous marriages of each spouse, date and place of the marriage of the parties, the number of their children who are minors at the time of the filing of the complaint, and any other litigation concerning the custody of those children in this or any other state in which either party has participated.  Further, the party filing the Complaint is also required to file a separate document that contains the full names and social security numbers, current mailing addresses and dates of birth of the husband, the wife, and those of all children born of the marriage. Please view the Complaint Statute in the appendix for more information regarding what should be contained in the Complaint.

 

 

 

Mandatory Restraining Order for Divorcing Spouses

Upon the filing of Complaint and personal service of the summons on the respondent (or upon waiver and acceptance of service by the respondent), there is an automatic temporary injunction (often referred to as a Mandatory Restraining Order for Divorcing Spouses) in effect against both parties until the final decree of divorce is entered, the petition is dismissed, the parties reach agreement, or until the court modifies or dissolves the injunction.  The temporary injunction specifies things that the parties cannot do, such as harassing each other, transferring assets, hiding property, and relocating with the minor children without the other parent’s consent.  Pursuant to T.C.A. 36-4-106(d), the Mandatory Restraining Order for Divorcing Spouses includes the following injunctions:

  • “An injunction restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property. Nothing herein is intended to preclude either of the parties from seeking broader injunctive relief from the court.

    Expenditures from current income to maintain the marital standard of living and the usual and ordinary costs of operating a business are not restricted by this injunction. Each party shall maintain records of all expenditures, copies of which shall be available to the other party upon request.

  • An injunction restraining and enjoining both parties from voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy, including, but not limited to, life, health, disability, homeowners, renters, and automobile, where such insurance policy provides coverage to either of the parties or the children, or that names either of the parties or the children as beneficiaries without the consent of the other party or an order of the court. "Modifying" includes any change in beneficiary status.

  • An injunction restraining both parties from harassing, threatening, assaulting or abusing the other and from making disparaging remarks about the other to or in the presence of any children of the parties or to either party's employer.

  • An injunction restraining and enjoining both parties from hiding, destroying or spoiling, in whole or in part, any evidence electronically stored or on computer hard drives or other memory storage devices.

  • An injunction restraining both parties from relocating any children of the parties outside the state of Tennessee, or more than fifty (50) miles from the marital home, without the permission of the other party or an order of the court, except in the case of a removal based upon a well-founded fear of physical abuse against either the fleeing parent or the child. In such cases, upon request of the nonrelocating parent, the court will conduct an expedited hearing, by telephone conference if appropriate, to determine the reasonableness of the relocation and to make such other orders as appropriate.”

 

 

 

Choosing When to File

There are tactical advantages for the person who files first, such as being able to choose the venue and jurisdiction in which your case will be adjudicated.  Another benefit of filing first is possibly being able to present your case first during a contested trial. In the alternative, there are also huge strategic advantages to attempting to negotiate a fair and reasonable settlement with your spouse prior to filing, such as reducing hostility and facilitating amicability between you and your spouse.  The more amicable you and your spouse are able to remain during the divorce process, the more likely you will be able to:

  • Maintain privacy by keeping your personal information and family business out of public court pleadings;

  • Avoid depleting your finances by saving money that would have unnecessarily been spent on costly attorney fees, court costs, and expensive litigation;

  • Negotiate a fair and equitable divorce settlement that considers you and your children’s unique needs, morals, and values;

  • Avoid having a judge who doesn’t know you or your children make decisions for you and your family that will likely affect the rest of your life;

  • Reduce your chances of having to return to court for contempt proceedings;

  •  Protect your children from the devastating emotional effects of a nasty litigious divorce that can result in parents who are so hostile with one another that they are unable to  co-parent effectively;

  • Protect your sanity from the emotional and financial turmoil that comes along with a high contested and litigious divorce.

            If you and your spouse cannot agree on something (such as support, visitation, property division, attorney fees, court costs, maiden name restored), then you must ask the court for it in the Complaint or the court cannot give it to you.  If the list seems long, or if it includes more than you think is appropriate, think of it as a wish list.  If the wording seems strange, remember that it is a formal legal document and much of the wording is required by law.  If your spouse has already filed, be sure that your lawyer has a copy of the Complaint as soon as possible.

 

The person who files first is the plaintiff or petitioner.  The other person is the defendant or respondent and that person must respond to your petition in a formal document known as an answer.  The defendant may also want to complain that the plaintiff was at fault.  To do so the defendant files a counter-complaint.

 

When appropriate, I suggest trying to reach a divorce settlement with your spouse prior to filing your complaint for divorce. If you decide to file your Complaint prior to negotiating a divorce settlement, I suggest that you at least in inform your spouse before having them served, as it is hard to keep open lines of communication if your spouse has been surprised by the sheriff serving divorce papers on him or her at 4:00 a.m. (which is when the sheriff often serves papers). 

 

 

 

Other Documents

Other documents that typically accompany the Complaint include:

  • Health Insurance Notice – provides notice of insurance termination

  • Affidavit as to Military Service – informs the court whether or not the respondent is in the military

  • Discovery Requests (Please refer to the section on Discovery for more information.)

    • Interrogatories – a set of written questions to a party to a lawsuit asked by the opposing party as part of the pre-trial discovery process. These questions must be answered in writing under oath or under penalty of perjury within a specified time

    • Requests for Production of Documents – a formal way for one party to ask another party to hand over copies of any evidence in the form of documents related to the case during the discovery process

    • Requests for Admission - a document used in discovery to establish which issues are not in dispute in the case. 

 

The Answer and Counter-Complaint

In a contested divorce, the non-filing spouse typically has 30 days to file an Answer to the Complaint after being served with the Complaint and Summons. Typically the spouse receiving a Complaint for Divorce will file an Answer and Counter Complaint.A Counter-Complaint is similar to a Complaint for Divorce, except that it is the Respondent’s Complaint for Divorce from the Petitioner. In the Answer, the respondent will generally deny all allegations in the Complaint for Divorce and request that the Petitioner’s Complaint for Divorce be dismissed.In the Counter-Compliant, the Respondent will typically requests everything, if not more, than what he/she would like to receive in the divorce.

If a party fails to file an Answer within 30 days of being served, the Plaintiff may apply for Default Judgment. There will have to be a court hearing on the motion for default judgment.If a default judgment is granted, the Defendant may lose their right to present their side of the case to the court, and the court might give the Plaintiff everything asked for in the Complaint.The Plaintiff must wait at least 30 days after an order of default judgement is entered against the defendant before scheduling the uncontested divorce hearing. If you and your spouse have reached an agreement on all issues and signed a Marital Dissolution Agreement prior to the filing of a Complaint for Divorce, then the non-filing spouse is typically not required to file an Answer to the Complaint for Divorce.

 

 

Attend Mandatory Parent Educational Seminar

In Tennessee, you are required to attend a four hour Parent Educational Seminar as soon as possible after the filing of the complaint for divorce if you and your spouse have minor children together.   The seminar educates parents concerning how to protect and enhance their children’s emotional development.  It also informs the parents about the legal process.  In addition, the course also includes discussions on alternative dispute resolution, marriage counseling, the judicial process, and common perpetrator attitudes and conduct involving domestic violence.  The seminar is educational in nature and not designed for individual therapy.  Your minor children will not be allowed to attend the parent educational seminar.  After you attend the seminar, the seminar provider will provide you with a certificate of completion that will need to be filed with the court.  The Court will only accept certificates of completion from providers on their approved list.  A list of the approved Parent Educational Seminar providers may be found by clicking on the following link: Approved Parent Educational Seminar Providers. Failure to participate in these programs can lead to a party being found guilty of contempt of court. Please see the Parent Educational Seminar Statute in the Appendix for the exact wording of the parent educational seminar statute.

 

Waiting Period

In Tennessee, your divorce cannot be granted until at least sixty days (or ninety days if you and your ex-spouse have minor children or dependent in common) after filing your Complaint for Divorce.  This minimum interval is also known as a “waiting period” or “cooling off period”.  The waiting period is designed to give you time to thoroughly think about whether or not you really want to go through with your divorce.  If you decide not to go through with your divorce, please let your attorney know as soon as possible.

 

Typically, you can expect to be divorced about ten to thirty days after the mandatory waiting period for uncontested divorces.  The average length for a contested divorces is normally between nine (9) months and twenty-four (24) months. Some divorces may take longer and others may be quicker. Certain circumstances may qualify for a quicker divorce, but I recommend a quicker divorce only in unusual situations.

 

If you choose the Walls Law Firm, and your divorce is uncontested from the beginning, then all of your documents will be drafted and executed prior to your Complaint for divorce being filed.  If your divorce starts off contested, then I will likely try to help you work out the details of custody, visitation, support, and property settlement, during the waiting period. 

 

 

 

 

Discovery

 

What is the purpose of discovery?

            Each spouse is entitled to information from the other about the case. The legal procedure for obtaining that information is called discovery. Discovery is important because it helps to ensure that all marital assets and debts have been accounted for, along with their accurate values; determine the parties’ income for child support and spousal support purposes; and obtain evidence regarding to child custody, visitation, and the grounds for divorce.  

 

            Discovery can be a simple, speedy process or one consuming a great deal of time, energy and money.  During discovery, each spouse gather and exchange information in order to learn what evidence the other has to in order to “get down to the bottom of” the case. Thus, when conducting discovery, it is important to be specific, comprehensive, and diligent.   Discoverable information includes any information that is relevant to the divorce action. Discovery in a divorce case typically includes information relating to the spouses’ economic, financial, and personal situations.  This includes, but is not limited to, the spouses’ property ownership, debt, income.  Discovery also includes information relating to the alleged grounds for divorce in contested divorces. 

 

            By examining the information exchanged during discovery close to the start of the divorce process, a divorcing couple, their attorneys, and the court can begin to decide how to fairly divide up the marital property, in addition to deciding how to deal with other divorce related issues such as child custody, child visitation, child support, and spousal support.  Discovery also creates an extra layer of protection.

 

            If one spouse fraudulently responds to a discovery request (by omitting a valuable asset, understating income, lying, etc.), and the questioning party relies on the other party’s fraudulent response, then the questioning party may be able to receive relief from a settlement or judgment that was based on the questioning party’s reliance on the fraudulent response.  In this instance, the trial court may consider vacating the settlement or judgement and allowing the party who relied on the fraudulent response to reopen the case.  If this occurs, the spouse who provided the fraudulent response will likely lose credibility with the court, which can result in a much different outcome of the divorce that is more favorable for the questioning spouse.

 

 

How is discovery completed?

Discovery may take place through an informal exchange of information and documents by the parties and their attorneys, or the discovery process can be more formal and follow a number of more rigid procedures.  During the informal discovery process, which is common in divorce cases, the parties and their attorneys exchange information upon simple requests for information made by letter, phone call, or email between the parties and their attorneys. During the formal discovery process, there are several different discovery procedures, sometimes referred to as discovery devices that are used. 

 

During the formal discovery process, each party to a divorce may obtain evidence from the other party by means of discovery devices such as interrogatories, request for admissions, request for production of documents, and depositions. During the formal discovery process, evidence can be obtained from non-parties using a subpoena and subpoena duces tecum.

 

 

Interrogatories

Interrogatories are written questions used in the formal discovery process to get information from the other party.   Typically, a question is written by one party for the opposing party to answer.  The person responding to the questions must answer in writing under oath.  The party answering the interrogatories must answer the questions truthfully, and may be held responsible by the court if they answer the questions untruthfully.  Interrogatory answers can be admitted during the divorce trial and they are often used as evidence. 

The interrogatories can be preprinted “form” interrogatories or specific questions asked just for your case called special interrogatories.   The questions can broad or specific.  An example of a broad interrogatory is “Describe your relationship with your children.” An example of a specific interrogatory is “Is it your position that the respondent’s taxable income for 2016 was $65,000?”

Interrogatories may focus on facts that neither party disputes, in order to get these issues out of the way instead of wasting time with them at trial. In this instance, interrogatories may be used to settle issues that the parties don’t disagree about, such as the fact that their names are John Doe and Jane Doe, that they were married on March 3rd, of 2001, and that that they have two minor children together.   In this example, interrogatories may allow John and Jane to save time at trial by skipping over the facts they agree on and getting to the heart of their dispute.

 

Interrogatories may also be used to exchange basic information, such as the parties’ employment status, income, assets, and debts. Not all interrogatory questions are about simple facts that everyone agrees on, however. Often, a set of interrogatories will include specific questions about the events that gave rise to the ground for divorce. In the example above, the interrogatories Jane sends to Joe probably won’t be limited to “What is your name?” and “What is the name, address, and telephone number of your employer?” They will probably also include questions like “Have you engaged in sexual relations with anyone other than your spouse on or after your date of marriage?”

 

 It is common for divorce attorneys accept interrogatories on behalf of their clients and assist their clients with answering the interrogatories to limit their clients’ chances of incriminating themselves unintentionally.  Attorneys often use interrogatories—along with evidence gathered in other discovery requests such as requests for production of documents and requests for admissions—to prepare their own clients for depositions and to prepare their deposition questions for the opposing party. A deposition also involves answering questions under oath, but most depositions are taken verbally and recorded by a court reporter.  Deposition testimony can also be used in a motion or at trial.

 

 

 

Requests for Admissions

            A request for admissions, also known as a request to admit, is a document used in discovery to establish which issues are not in dispute in the case. Requests for admission ask a party to admit or deny certain facts pertaining to the divorce and related issues.  There are penalties for not answering, for answering falsely, and even answering late.  The purpose of requests for admissions is to get rid of issues that both parties agree upon, so that both sides can save time, money, and energy at trial arguing only over the things they disagree on. Therefore, many requests for admissions are pretty obvious and boring. These include statements like “The respondent’s full name is John Henry Doe,” “The respondent lives at 123 Main Street, Cordova, Tennessee 38016” or “The respondent was married to the plaintiff on March 3rd of 2001.” These types of requests are easy to admit and allow both parties to skip the work of proving them in court and get to the heart of the dispute.

 

            Like interrogatories, requests for admission are made in writing and are often written as simple statements. Unlike interrogatories, however, requests for admissions are not open-ended questions seeking information; they are more so true/false statements. For example, a set of interrogatories from one spouse to another might open with the request: “State the full legal name of the respondent in this case.” The answer to this question will probably be the respondent’s full legal name, which would be John Henry Doe in our example. A request for admissions, on the other hand, will begin with “The full legal name of the respondent in this case is John Henry Doe.” 

 

Instead of writing answers to the questions, the party responding to the requests for admissions must only mark each one “admit,” “deny,” or “neither admit nor deny.”  “Admit” indicates that the party answering the request for admissions agrees that the statement is true, while “deny” indicates that the party answering the request for admissions believes the statement is false. “Neither admit nor deny” is used when the party cannot say whether the information in the statement is true or not. This answer is usually accompanied by a brief explanation as to why the party can neither admit nor deny the information contained in the request.  Typically, if you fail to deny a fact within thirty (30) days, it is deemed admitted.  If you deny a fact and the other side later proves the fact, then you may be required to pay the expenses that the other party incurred in order to prove that fact.

 

A party answering a request for admissions may object to any of the requests in the list. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.  There are several reasons why a particular admission might be legally objectionable. For instance, the request might ask a party to admit or deny the truth of something that is inadmissible in court, like inadmissible hearsay.  A request might also be objected to because the statement is so vague or confusing that the person answering can’t give a straightforward answer, or because it is a “trick” question. For instance, a request for admission that read “As of November 1, 2016, the respondent had stopped sleeping with Slutty Betty” might be objected to because the defendant had never stolen a car in the first place—but both an “admit” (“yes, I’ve stopped sleeping with Slutty Betty”) answer or a “deny” (“no, I haven’t stopped sleeping with Slutty Betty”) answer imply that the respondent is or was sleeping with Slutty Betty. 

 

Since lists of requests for admissions can become quite long and seem tedious, attorneys sometimes try to take advantage of the flood of information by trying to sneak in statements that can be fatal to the other party’s case. For instance, suppose that the petitioner was pursuing a divorce on the grounds of adultery. In between the boring, not-disputed information like the petitioner’s name and the date of the marriage, the respondent’s attorney might slide in a statement like “The morning of September 1, 2016, the wife told the husband that she was okay with the husband having sexual relations with Slutty Betty.”  If the wife answering this request for admissions isn’t paying attention, she might simply mark this one “admit”—and thereby sink her case because consenting to her spouse’s adultery will likely prevent her from receiving a divorce on the grounds of adultery. In this case, it is likely that the wife did not tell the husband that she was okay with him sleeping with Slutty Betty.  Instead, she likely informed him that she was okay emotionally after learning about her him having sleeping with Slutty Betty. For this reason, attorneys usually take care to check requests for admissions carefully before admitting to anything that might give the other side an automatic victory.

 

 

Request for Production of Documents

            A Request for Production of Documents is used in discovery as a formal way for one spouse to ask the other spouse to hand over copies of any evidence in the form of documents related to the case. Along with interrogatories and requests for admissions, requests for production of documents are used to gather information about the divorce case.

 

            Both parties have a right to see most documents that even arguable relate to the divorce and relation issues that will require resolution, which includes, but is not limited to the division of marital property, child custody, child visitation, child support, and spousal support. When a party is served with a request for the production of documents, they are obligated by law to find all of the documents enumerated in the request and turn those documents over to the other party unless the documents qualify for an exception. For instance, some requests cover information that is privileged, like communications between spouses, and some requests cover information that may not exist. To ensure that only the appropriate information is given to the other party and that it is turned over on time, attorneys usually review the documents their clients provide in response to a request for production of documents before forwarding them to the party making the request.

A typical request for production of documents contains several separate numbered requests. These requests usually ask for a certain class or type of documents, but are broadly worded so as to cover as many documents as possible. For instance, a request for production of documents may ask for any documents related to the issues involved in the divorce case. For example, the request for production of documents may ask for a spouse’s employment contract, partnership agreement, retirement account statements, or even medical records. Other common requests made in a request for production of documents include:

  • Copies of paystubs, W-2s, and other proof of income.

  • Copies of insurance policies, bank statements, or other financial or business documents.

  • Copies of any documents the party referred to in its answers to the interrogatories, which are usually sent before or along with a request for production of documents.

  • Contact information for every expert whose testimony the party may use at trial.

  • Copies of the resume or curriculum vitae (CV) of each of these experts.

  • Copies of any written sources the attorney or expert plans to refer to in building his or her case.

  • Copies of any written statements made by the party, such as statements given to a police officer after an alleged domestic violence event.

  • Copies of medical records, including records from physical therapists, psychologists or counselors, or others who provided care for the spouse.

  • Copies of any audio or video recordings, photographs, x-rays, scans, or other multimedia items produced as part of the investigation of the case.

 

 

Depositions

            A deposition is a written transcript of spoken testimony, given under oath and before trial. During a deposition, a person is questioned by an attorney under oath, and a court reporter will make a transcript of what is said.  The testimony given in a deposition may be used at trial.  Depositions can range in length from an hour to a week or more.  Like other forms of discovery, depositions are used to gather evidence before a trial occurs. The information in a deposition helps each party determine what the other party’s arguments are, what evidence to support or refute those arguments is available, and what facts the parties agree on. Depositions are also used to examine expert witnesses before trial to determine their credentials and their opinion on a particular aspect of the case.

 

Before taking a deposition, the party who wants the deposition must give notice to the person being deposed and/or to that person’s attorney. The notice must state that the person is supposed to appear for a deposition and give the date, time, and place of the deposition. Most depositions are taken in an attorney’s office or similar private location.

The people involved in a deposition include the spouses, their attorneys, the person being deposed, and a court reporter.  The court reporter is there to record everything that is said during the deposition. Some depositions are recorded with video equipment as well, particularly if the parties believe that the person being deposed will not be able to appear for trial, is exempt from subpoena to trial, or if the person is likely to die before a trial can occur.

 

Typically, the deposition will begin with the person being deposed taking an oath to provide truthful testimony. The person being deposed may be held liable for perjury, or lying under oath, if he or she deliberately tells falsehoods during the deposition. The attorney who requested the deposition usually explains the “ground rules” of the deposition, then proceeds to answer questions. It is the job of the person answering the questions to answer them as truthfully as possible, even if that means admitting he does not know or cannot remember certain information.

 

There are two general things to remember about depositions.  The first thing to remember is that you should not guess.  The purpose of a deposition is to give facts, not to speculate as to what might have happened or what the right answer might me.  Even if it makes you self-conscious to say it, sometimes simply saying “I don’t know” is the right answer.  The second thing to remember is that you should resist the impulse to explain.  It is human nature to want to explain, but it is the opposing party’s job to get the answers.  Your only job is to answer the question asked truthfully.  It is likely in your best interest that you do not suggest additional information.

 

At times your attorney or your spouse’s attorney may interrupt to object to certain questions. If your lawyer objects, wait until your lawyer informs you it is okay to answer a question prior to proceeding with an answer to a question your lawyer objected.  A deposition may also include authenticating certain documents. Usually, the attorney who requested the deposition will bring along copies of these documents and ask the person being deposed the appropriate questions to authenticate the documents, or to establish what they are so they can be admitted under the court’s rules of evidence. Authenticated documents may be admitted in court along with the deposition testimony authenticating them.  If you choose the Walls Law Firm, we will provide you with a detailed booklet to help you prepare for your deposition.

 

 

 

Subpoena

A subpoena is a legal document that requires a person to give testimony or to produce evidence in a court case. If the person refuses to obey a subpoena, they may face legal penalties. Subpoenas are used to order people to attend depositions, to appear as witnesses in a civil or criminal trial, or to hand over certain documents or other pieces of evidence.

 

Traditionally, subpoenas fell into two separate categories. A “subpoena ad testificandum” ordered a person to appear and give testimony, while a “subpoena duces tecum” ordered a person to provide certain documents or other pieces of evidence to a court. Today, a “subpoena” is generally understood to require a person to appear and to bring any evidence listed in the subpoena, while a “subpoena duces tecum” is understood to require a person only to give up certain pieces of evidence by, for example, mailing certain documents to the court or to one of the attorneys involved in the case.  A subpoena usually contains, at a minimum, the following information:

  • The name and address of the court where the case has been filed, along with a case number if one has been issued.

  • A statement explaining what the subpoena commands the person named in it to do—appear for a deposition or to testify at trial, bring documents or other evidence, or both. If documents or other evidence are called for, the subpoena must describe them in enough detail for the person named in the subpoena to understand what they’re being expected to bring.

  • The date and time when, and place where, the subpoenaed person must appear or deliver the evidence.

  • Some subpoenas also warn the person named on the subpoena that she will face penalties if she does not comply with the subpoena’s requirements.

Special Considerations

Requests for discovery must be responded to properly and the responses must be typically filed within a specified amount of time.  It usually takes some time to prepare your responses so you should provide them to your attorney as soon as you receive them. 

 

 In many divorces, informal discovery can be perfectly adequate.  Informal discovery can be faster and cheaper than formal discovery, but there is also a risk that something may be overlooked, although that can also happen in regular, formal discovery.  Informal discovery in often done in situations when the spouses are able to be amicable, trustworthy, and already aware of each other’s income, assets, and debts. 

 

Formal discovery is more expensive, slower, more stressful, and more labor intensive than informal discovery. It is often more efficient and less expensive for lawyers to informally exchange documents and information instead of taking depositions and sending and responding to interrogatories, requests for admission, and requests for production. Thus, I typically suggest that divorcing spouses attempt informal discovery in order to reduce hostility between the parties and save money.  If informal discovery is unsuccessful, the parties can resort to formal discovery, so there is a back-up plan.  However, if your spouse or their attorney is not known to be trustworthy or is highly contentious, formal discovery may be your best option.

 

 

Negotiated Settlement

 

Why consider a negotiated divorce settlement?

When a marriage ends, spouses and their children are forced to deal with an immense amount of stressful events, such as new living arrangements, parenting schedules, and deciding how to divide marital debts and assets.The emotions caused by these changes often impair spouses’ ability to think rationally and make sound decisions.A lot of people come to my office informing me that they want to “win” or make their spouse “pay”.However, it is important to note that there is never a winner in divorce and attempting to make your spouse “pay” is a sure way to deplete your finances by racking up a ton of attorney fees, court costs, and expenses. The typical divorce involves various issues, and divorcing spouses rarely get everything they want. Thus, trying to “win” or make your spouse “pay” is pointless and a huge waste of time, money, and emotional stress as litigating a highly contentious contested divorce is long, expensive, and emotionally draining.The expense of an ugly divorce trial has the potential to deplete the very assets that you and your spouse may be arguing over and make it harder for you and your spouse to work together to co-parent in the future.

 

In addition to being expensive and possibly devastating emotionally on you and your children, a divorce trial is extremely risky as there is no certainty that the judge would rule in your favor.Thus, when you consider the cost benefit analysis, it makes sense for you to try to reach a divorce settlement with your spouse instead of having a contentious divorce trial, in which a judge who doesn’t know you or your children decides your future.

 

Another benefit of negotiating a divorce settlement with your spouse is that it helps you to maintain some privacy.Divorce proceedings are public record.This means that others can look at your complaint for divorce and other court pleadings and see what exactly was alleged in your divorce proceeding.You do not want your children, their friends’ parents, or others reading negative things about you or your spouse in a court document.I believe family matters are delicate and should be handled privately.Thus, in addition to control, another benefit of a negotiated agreement is privacy.This is why it is our standard practice at the Walls Law Firm to attempt to negotiate a divorce settlement prior to initiating divorce litigation and filing a Complaint for Divorce.

 

Another benefit of a negotiated divorce settlement is that your spouse is more likely to obey a judgment that is based on his/her agreement than one that has been imposed on them by a judge. Voluntary compliance is important because enforcement procedures available from the court are usually expensive and sometimes inadequate. For these reasons, following discovery and at any time thereafter, even during trial, I recommend trying to negotiate a divorce settlement.

 

Negotiating with Your Spouse

Over two thousand years ago Sun Tzu wrote in the Art of War, “Those who know when to fight and when not to fight are victorious.”[1] This applies to ancient Chinese warfare and your divorce.  If you are able to work out a fair and reasonable divorce settlement with your spouse you will have a victory.  Remember, a contested divorce trial typically comes at a great cost in money and emotional distress.  In trying to work something out with your spouse, the following are some useful pointers to remember:

  • Meet on neutral ground–People tend to be more open to negotiate when they feel safe and comfortable, so it is suggested that you pick some place where you both will feel comfortable.

  • Put aside time–A reasonable amount of time should be set aside to deal with the issues.  If you leave to answer a telephone call just as you almost have things worked out, you may find that things have fallen apart when you get back.  On the other hand, do not leave the meeting time open-ended.  A meeting without a deadline will drag on and issues will not get resolved.

  • Set an agenda–Decide what will be dealt with at the meeting.  “This week we will decide on custody and child support, next week we will decide on the house.”

  • Do not bog down–Try to talk about what you agree on.  No matter how bad it is, there are some things you agree on (“the marriage stinks” or “the kid is cute”).  If you hit a point that gives you trouble, move on to something else and come back to the problem after you have resolved some other issues.

  • Reschedule as needed–If things start to turn nasty, if someone gets angry, or if you think you are losing everything, reschedule the meeting for another time.  It is important that both of you feel that the agreement is a good thing.  Winston Churchill said, “In my experience of large enterprises, I have found it is often a mistake to try to settle everything at once.”  Your divorce is a large enterprise for you.

  • Keep the kids out of it–Your children do not need to be involved in this.  Do not have them around.  They will likely interrupt you, and being present for the negotiation may cause them emotional distress.

  • Start talking early–Divorces usually settle early on, when both parties feel guilty and are not locked into a position, or after much litigation, when the parties are too exhausted to fight anymore.  Sometimes you can get more from negotiation than you can get at a trial.

  • Don’t sign anything without your attorney’s permission! - If your spouse presents you with a document for your signature, do not sign until you have consulted with an attorney about the document.  You can schedule a meeting with me during which I would be glad to review the document and provide you my honest opinion by clicking the following link: schedule a Divorce Planning Session.  If you and your spouse work out something and you make notes, do not sign the notes.  This could be considered to be an agreement.  Also, if it is not in the correct legal language, you may be bound by something other than what you thought you agreed to. 

 

 

Alternatives to Trial    

Normally divorcing parties will try to settle their case between themselves.If that does not work, the spouse’s attorneys will typically try to settle the divorce case.These approaches are dynamic and can both go on at the same time. If you choose for me to represent you during your divorce, I may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours. I cannot and will not make that decision for you.  Even if a case is settled by agreement and you never see the inside of the courthouse, there are certain legal procedures that have to be followed to turn your agreement into a judgment and end your marriage. This is the purpose of the Martial Dissolution Agreement, Permanent Parenting Plan Order, Final Decree of Divorce, and Uncontested Hearing. 

However, sometimes, despite the best efforts of everyone, the parties are unable to reach an agreement. Before going to the ultimate test of a trial, there are alternative dispute resolution processes that may be effective in setting your divorce case.  They are discussed below.

 

 

Divorce Mediation

In Tennessee, divorcing spouses are required to attend mediation prior to a contested divorce trial.Mediation is negotiations with a neutral party assisting the negotiations.  During a mediation, the parties meet with an impartial individual (who should have special training and qualifications) for the purpose of helping them reach an agreement. It is important to note that the mediator is not an advocate for either spouse.  The mediator facilitates the process and does not “take sides” or make decisions for you.  They merely facilitate settlement. It is important for you to have independent representation throughout the mediation process. You should also consult with me about mediation and the legal ramifications of any proposed agreement.  I recommend this and urge you to ask me more about it for your specific case.  Even if your spouse is opposed to mediation, the court can still order it.  If you have been the victim of abuse the court may not order mediation unless:

  • you agree to mediation,

  • the mediator is specially trained to handle cases involving domestic violence, and

  • you are permitted to have your attorney or another person accompany you.

 

           

Neutral Case Evaluation

A neutral case evaluation occurs within mediation or as a separate process entirely. In neutral case evaluation, each party, through his or her counsel presents his or her case to a neutral third party, who then assesses the strength and weakness of each party’s position and sometimes suggests alternatives. This process often helps the parties to reach compromises and ultimately, an agreement. The benefit of such a process is each party hears the strengths of the case as presented by the opposing side and can better evaluate and strengths of his or her own case.

 

 

 

Collaborative Divorce

Collaborative Law is a relatively new concept in alternative dispute resolution. The goal of the Collaborative Law Practice is to provide a respectful and defined process, produce outcomes that meet the needs of all parties, and increase the parties’ control, privacy and compliance with agreements. The parties sign a Participation Agreement that provides for full disclosure and stipulates that if the Collaborative Process fails, then both Collaborative lawyers resign and the parties are required to obtain new counsel; the stated goal is to remove the threat of litigation and keep the parties working together toward a shared resolution.

Collaborative Law Practice often involves a team of additional professionals such as a divorce coach for each party, a child specialist, and/or a neutral financial consultant. The parties, attorneys, and any other professionals involved meet regularly to move through a defined process to reach a resolution that is directed by the parties’ articulated goals. Collaborative Law Practice can provide a supportive system for resolving difficult issues and can improve how the parties interact and problem solve in the future, but it demands active participation from both parties to succeed and the possibility of having to obtain new counsel in the event an agreement is not reached can be intimidating to some clients as well as wasteful.

 

 

 

Arbitration

You may want to consider arbitration.In arbitration, the arbitrator makes a final decision.The arbitrator is like a judge, but you must pay the arbitrator and you are bound by the decision.You and your ex-spouse may agree to submit some or all of your disputes to an arbitrator, a person chosen to decide the issues that the parties present. An arbitrator should have special training and qualifications. The arbitrator's decision can be made into a court judgment. Although traditionally the decision of an arbitrator is binding and final, some variations have emerged in recent years.

Our office is open to making use of judicial settlement conferences in which a judge from another court listens to both sides and gives a nonbinding opinion on the case.This has settled some very difficult cases.There are other alternatives such as a mini or summary trial.There has been little use of these alternatives in our area in divorce but if you are interested in these alternatives, please ask me about them.

 

 

Pendente Lite Proceedings

“Pendente lite” is Latin for “pending the litigation.”  Pendente lite orders, also called temporary orders, set the rules while the case is pending. Either party can ask the court to make temporary orders stating, for example, who stays in the house, who is responsible for the children, who pays which bills and restraining inappropriate conduct. It is in both spouses’ best interest to agree upon reasonable arrangements while the case is pending rather than incur additional legal fees and add to bad feelings by having to go to court for temporary orders.

 

If there are things you may need for the court to do pending the final trial, then you may request a pendent lite order.  This will require a filing of a motion for pendent lite relief and a court hearing on your motion.  The court, upon request, can set a hearing to determine the needs and the abilities of the parties and children and order support accordingly.  This award is subject to rehearing at the final trial.  The court can also order custody of specific visitation pending the final trial. Pendent lite proceedings tend to be expensive and make the divorce more complex.  Thus, I suggest attempting to reach some type of agreement with your ex-spouse prior to pursuing a pendent lite proceeding. 

 

 

Court Appearance–Uncontested Hearing         

In an uncontested divorce case, a divorce in which you and your spouse have entered into a written marital dissolution agreement, the plaintiff needs to appear in court to testify. I will provide you with a list of questions that will be asked during your uncontested divorce hearing. The defendant needs only appear if it is what he or she wants to do.  Unless it is a divorce on irreconcilable differences, you will need to bring two witnesses with you to testify on your grounds for divorce.  You may want us to issue a subpoena to require your witnesses to appear in court.  Although issuing a subpoena will incur additional attorney fees and court costs, the subpoena helps your witnesses get off work and protects you if they do not appear.

 

 

 

Trial

If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits.Trial is likely to be expensive and unpleasant. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different. A judge, a stranger -- possibly with a viewpoint, temperament and values very different from yours -- tells you and your spouse how to reorder your lives, divides your income and assets, and dictates when each of you may see your children.Sometimes, a trial does not end the case. Each party may, within a limited period of time, appeal to a higher court. An appeal adds more time and expense to the divorce process and is hard to win.

 

 

 

 

Walls Law Firm


Telephone: 

901-315-0559

 

Fax:

901-466-6981


Email address:

n.walls@YourPerfectLawyer.com

 

Address: 

Walls Law Firm

1661 International Drive

Suite 400

Memphis, Tennessee 38120

                               



 

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© 2013 by Nakeshia Walls, Esq.