The Divorce Process Primer
Many people believe a divorce is a lawsuit, which begins with the filing of a complaint. The truth, however, is that your divorce is a transformational process –much more than a mere lawsuit– which begins much earlier than than starting your case in court.
Collaboration is Much Better Than LitigationThe "best" divorces involve collaboration from the moment either you or your spouse decide your marriage is no longer viable. Collaborative spouses can and do exchange all of the pertinent information needed to settle all of the grounds (usually irreconcilable differences), property, alimony, and, if applicable, custody and child support issues. Having done so, they are able to then come up with a "prepackaged divorce" including an agreed-upon marital dissolution agreement and, if appropriate, parenting plan. If collaboration is not an option, then a full-blown adversarial approach will have to be prosecuted by you and/or your spouse, using one or more lawyers, a judge, statutory and case law, and the Tennessee Rules of Civil Procedure.
In order to persuade you to consider using a more collaborative process to getting divorced, let's first review all that's involved in a "knock-down, drag-out" divorce case.
Drafting and Filing Your ComplaintTechnically, according to the Tennessee Rules of Civil Procedure, the lawsuit phase of the dissolution of your marriage does begin by your filing a Complaint for Divorce. Because you are filing the complaint, you will be referred to as the plaintiff and your spouse will be referred to as the defendant.
A Complaint for Divorce must contain several specific things. The introduction of the parties, jurisdiction, and venue are followed by a set of statutorily-required statistical information (certain confidential bits of which are filed separately under seal), one or more grounds for your divorce, and a variety of averments, all of which are in turn followed by your prayer for relief, a signature block, a surety clause, your notarized verification, and notice of the statutorily-required automatic injunctions.
A lawyer should help you prepare your complaint to be sure it is drafted completely and correctly.
In several Tennessee counties, especially Shelby County, you must submit your Complaint for Divorce to the Divorce Referee for approval prior to filing it with the Circuit or Chancery Court Clerk. On of the things the Divorce Referee does is decide at random whether you will file your divorce lawsuit in either Circuit or Chancery Court. From the Divorce Referee's office, if your county has one, you will go to either the Circuit or Chancery Court Clerk's office to file your Complaint for Divorce.
There are several additional things you have to file in the court clerk's office with your Complaint for Divorce. Beginning with the end in mind, you will also need to submit a properly completed Certificate of Divorce, which will be processed by the State of Tennessee after you receive your final decree. In addition, the confidential bits of statistical information should be filed in an appropriately labeled manila envelope.
Not only will you have to prepare and file one original of this package of documents with the court clerk, you will also have to prepare and file a second copy of the entire package along with two copies of a properly completed summons. Plus, you will need to have stamped and returned to you one duplicate copy of everything for your lawyer's professional use and, finally, own more copy for your own personal use or file. If you or your lawyer already know what lawyer will be representing your spouse, it is the professionally polite thing to do to send a last duplicate copy of everything to that lawyer, as well.
Finally, you must also present the most important thing there is from the court clerk's perspective, a check in the amount of the current filing fee required for filing your Complaint for Divorce. Once you pay this fee, the court clerk will "issue" the summons, which, when it is attached to the service copy of the complaint, is then referred to as "process."
Service of Process: Getting Your Spouse Into CourtOnce you file your Complaint for Divorce, you must get your spouse's copy and the summons ("process") delivered (or "served"). There are many technical requirements involved in serving the process on your spouse. Failure to correctly meet any one of these requirements can result in your Complaint for Divorce being dismissed at the first opportunity and your having to go back and start all over again (including paying a second filing fee). To correctly serve the process, you may elect to have the local sheriff do the honors or have a private process server serve the process for you. Private process servers are faster and more reliable. They are also just a little bit more expensive.
A third "new" way of serving process is to do it by mail. You can mail your spouse or your spouse's lawyer the summons and complaint along with a Waiver of Service of Process. Your spouse or your spouse's lawyer can either sign the Waiver of Service of Process, acknowledging receipt of the lawsuit by mail, which keeps the court costs down, or he or she can refuse to accept service by mail by refusing to sign and return the waiver. If you are then required to pay the sheriff or a private process server to serve the summons and complaint, then you can ask the Court to assess the costs of the process server to your spouse for refusing to sign the waiver.
The next step in getting your divorce is to wait for your spouse and/or your spouse's lawyer to draft and file your spouse's Answer and, in most cases, a Counter-complaint for Divorce. The Answer will usually deny all your allegations set out in your complaint and ask the court to dismiss your complaint. Your spouse's Counter-complaint will then make almost the identical claims and prayers you put in your complaint, but this time with your spouse trying to paint you as "the bad guy" (or gal).
Some Additional Thoughts About Grounds For Divorce In Your ComplaintSome Complaints for Divorce contain very simple grounds and averments, while others can be quite complex. Most Complaints for Divorce allege irreconcilable differences grounds, which are commonly though incorrectly referred to as "no-fault" ground. Many Complaints for Divorce also include at least one "fault" ground; usually, inappropriate marital conduct.
Including one or more fault allegations, like inappropriate marital conduct, doesn't necessarily mean fault will be a major issue in your divorce or that getting you divorced will be a battle. Lawyers often think they have good legal reasons for including various allegations and prayers for relief, regardless of the likelihood of proving or being granted any of either of them. Some of the reasons are offensive and others may be defensive.
For example, neither you nor your lawyer may realistically think you have a shot at getting custody of your child(ren). Nonetheless, the Complaint for Divorce may include a prayer for your spouse to pay you child support.
Many lawyers uniformly draft their Complaints and Counter-complaints for Divorce to include almost every ground, averment, and prayer even remotely relevant to their clients' circumstances. even though the probability of proving such grounds and averments is fairly remote and getting such prayers for relief granted is even more so. This is not an attempt to intimidate or embarrass their clients' spouses; it's usually a common result of bad lawyering.
The Mandatory Mutual InjunctionsIn almost every divorce, certain "automatic" statutory temporary injunctions, which control both you and your spouse, are issued without independent judicial review. These automatic injunctions prohibit the sale or transfer of certain assets, prevent the wasting of marital funds and enjoin you and your soon-to-be ex-spouse from threatening physical harm against or harassing each other. Be certain you understand the terms of these automatic injunctions, because whoever violates them can be fined or jailed for contempt of court.
Discovery - Figuring Out the Facts of Grounds, Property, Money, Kids, Alimony, and Child SupportIf you and your spouse have not already begun and/or have no intention of pursuing settlement negotiations, the next phase of your divorce lawsuit will be the discovery process, which can be short, sweet, to the point, and economical or long, bitter, drawn out, and very expensive (often, in more ways than just monetarily). In collaborative divorce situations, you and your spouse and/or your respective attorneys can agree to handle discovery informally by voluntarily providing each other with sufficient information and documents to settle all of the issues involved without resorting to extensive use of the legal process. Naturally, this lessens the expense of all types of resources. Properly done, informal discovery can even be accomplished under oath, which removes the lack of being under oath as a reason many lawyers discourage informal discovery. (Though the real reason for discouraging informal discover may be some lawyer's economic self-interest more so than the safety and security of working under the civil procedure rules.)
Which manner and means of discovery are used usually depends on the ABC's that may be present in any divorce - Assets, Badness, and Children. If there are significant amounts of money or property, hurt feelings, or kids involved, then the amount of discovery usually goes up exponentially.
For example, if you own a medical practice which produces significant income, your spouse will most likely want to hire an expert to review and investigate the books and records of our practice to opine about its value. Performing such a business valuation can be one of the most expensive parts of the discovery process of any divorce.
If minor children are present in the situation, then one or both parents may want to prevent the other from having the usual types and amounts of shared parenting rights granted in a final decree. To obtain this unequal position, you or your spouse may need to hire psychological experts and have guardians ad litem and attorneys ad litem appointed to help your kids get through the process of being battering rams. This, too, can eat up a lot of your precious life's resources of self, time, effort, energy, emotion, intellect, property, and people.
The Four Main Types of DiscoveryThere are usually only four possible types of discovery:
(1) sending and receiving a bunch of questions, called Interrogatories and/or Requests for Admissions, which must be answered under oath;
(2) sending over another bunch of demands for copies of a variety of papers, etc. called Requests for Production of Documents and Things;
(3) asking to go somewhere and look at some things, called a Request to Enter and Inspect, and
A recipient of written discovery must reply with his or her answers and produce the items requested within thirty (30) days of getting served the interrogatories and requests. Requests for depositions that are reasonably made must usually be reasonably complied with.
As stated above, interrogatories must be answered under oath and producing documents may also have to be done under oath. This means the person answering the questions and producing the documents must tell the truth or face the likelihood of incurring a civil or criminal penalty for perjury. You should never be willing to commit perjury to gain an advantage in a divorce. If you lie, by act or omission, under oath during the discovery process, such as by hiding your assets, your spouse can use that lie or omission to set aside or modify your divorce decree because he or she relied on your misrepresentations or incomplete production of documents.
In almost any contested divorce, both you and your spouse will probably be deposed during your discovery period. Depositions of divorcing spouses are not as much about getting information as they are about allowing the lawyers to preview their clients' spouses and see how they might perform in a courtroom at trial. Unlike in interrogatories and requests for production of documents and admissions, depositions allow for follow-up questions.
Depositions are, however, fairly expensive. Your lawyer and your spouse's lawyer will both be billing for their time. If you are paying for your spouse's attorney's fees, then you will be paying double for your lawyer to check out your spouse. Not a good day. Plus, both lawyers will probably spend even more hours getting ready for the deposition than they will taking it. Finally, there's the expense of the court reporter's fees for recording and typing up everything that is said.
Children In DivorceChange breeds anxiety. The bigger the change, the bigger the anxiety. If you have children, your divorce is going to give you a whole new set of parenting stresses. The Tennessee legislature wants to help you, your spouse, and your kids cope with the anxiety this change will breed, by giving you the opportunity - commandment, actually - to attend a four-hour parenting-through-divorce class before your divorce can be granted. In this class you will learn many important principles you and your soon-to-be ex-spouse will need to apply to your respective lives for the benefit those members of your family who are not voluntarily divorcing, your children.
Where children are involved, your judge is going to make decisions in your divorce based on the best interests of your children regardless of the effect it has on you and your spouse. Lawyers are officers of the courts in which they practice law. While each lawyer in a divorce has an ethical duty to zealously represent their client, every lawyer has an obligation as an officer of the court also to act in the best interests of the children involved in a divorce, even if that conflicts with their parent-client's own interests.
The two major issues of a divorce involving children are child support and a parenting plan that establishes who will be the primary residential parent and what visitation the other parent will have. After you and your spouse agree (or the court determines) who will be the primary residential parent, child support must either be agreed upon or set by the court. Child support is usually determined by the relative incomes of both parents using the statutorily prescribed child support guidelines and worksheets. Adjustments and credits can be made, depending on the individual circumstances of the case.
No minor child has the right to decide with which parent he or she may reside, but, usually, any child age twelve may testify in the courtroom or in the judge's chambers about his or her preference for primary residential parent. Regardless of the child's wishes, however, the judge alone will determine the your parenting plan based on what is in the best interests of your child.
To determine the best interests of your child(ren), the judge handling the child support, custody, and other parenting issues of your case is going to want to know a good deal of information about you, your spouse and your children. Usually your children are the only witnesses to a your or your spouse's violent, destructive, or offensive behavior, which would make your child(ren)'s testimony the best evidence to demonstrate that parent's poor behavior. Regardless of this fact, almost all psychologists and judges frown on calling a child as a witness in a divorce case for any reason. Almost nothing is as traumatic for a child than being asked to testify against a parent. No lawyer who is concerned about the best interests of your child(ren) should call one as a witness unless the matter involves severe physical or emotional abuse and a child psychologist has been involved in the case to help prepare the child to testify and deal with the personal ramifications of that testimony
Alternatives to Children TestifyingRather than have your child(ren) testify, the court will use several methods to obtain that information. One method will be to appoint a guardian ad litem. The guardian ad litem will probably be a third lawyer involved in your case, but he or she can also be a mental health professional or a social worker.
The guardian ad litem will interview you and your spouse as parents. He or she will also interview your child(ren)'s teachers, neighbors, daycare providers, and any other people who are regularly around your kids. The guardian ad litem will then draft and present a written report making recommendations to the judge, which the judge may or may not read until the trial begins. Either your or your spouse's lawyer may depose the guardian ad litem.
If either you or your spouse doesn't like the guardian ad litem's recommendations, it is possible to negotiate, compromise, and come to an agreement on the children and parenting issues involved in your divorce. If you don't come to an agreement, then the judge will read the report and will probably adopt a good deal, if not all of the guardian ad litem's recommendation. Usually, the will have the guardian ad litem testify at your trial.
Another way the judge can get information about your child(ren) is to order an independent child custody investigation by an experienced and independent court-appointed forensic psychologist. Usually, this investigation will include interviews and mental evaluations of you, your spouse, and your child(ren). Like the guardian ad litem, the psychologist will probably write and present a written report to be read by the judge and testify at your trial.
Guardians ad litem are expensive and psychological evaluations are even more so. Therefore, they are usually reserved for cases involving allegations of mental illness, drug use, or emotional abuse.
If a guardian ad litem or forensic psychologist is assigned to your case, you would be wise to prepare for the investigational interview instead of just letting it happen. The psychologist will most likely use the American Psychological Association guidelines to conduct his or her evaluation and some guardians ad litem will use the same or similar guidelines. It would be very helpful to read the APA guidelines to see what either type of investigator is looking for.
Regardless of whether or not the court appoints one, if either you or your spouse accuses the other of some form of mental illness, then one or both parents may use a forensic psychologist to serve as an expert witness to support your or your spouse's respective position. The goal is to have your psychologist form an expert opinion to refute the allegations against you and defend your ability to act as the primary residential parent of your child(ren).
Children Are Not Battering RamsDivorce Lawyers and judges know far better than most other people (except mabye for mental health professionals) the destruction misuse of children can bring. One well-known abuse of the divorce process is using the children as a battering ram or negotiating point by trading custody and visitation in exchange for some quid pro quo concerning property settlements, alimony, or child support. These tactics do nothing but increase the tension in the family and the divorce process and no reputable lawyer should participate in such sharp dealing. If the judge handling your case hears about you or your spouse attempting to use these tactics, he or she will most probably take a very dim view of the matter.
Collaboration and Settlement are Both Good Things In a DivorceAs discovery is going on or maybe coming to a close, the next phase of your divorce should be to negotiate a settlement. If you didn't start out your divorce process in a settling mind, hopefully, you have developed more of one by this stage in the adversarial legal proceedings. A settlement is almost always more favorable than the likely outcome of a contested trial for several reasons. Collaboration can be done more quickly, quietly, economically, efficiently, comprehensively, and with more certainty, control, and consent than any more adversarial process allows.
For example, collaboration provides opportunities to compromise and thoroughly address issues in your negotiated Marital Dissolution Agreement that may not be included in a court's adversary ruling. If you expect to be named the primary residential parent, you may be able to negotiate that your spouse will pay certain college expenses for your child(ren). In a divorce trial, your judge has no statutory authority to impose that obligation upon your spouse.
Maintaining control of and being able to consent to the terms of your divorce is much better the self-esteem of all concerned. Voluntary compliance with a negotiated agreement is much preferred to court-ordered enforcement, because every court order cost all of the resources of self, time, effort, emotion, intellect, property, and people required to obtain it.
If you and your spouse and your respective lawyers cannot come to terms on a Marital Dissolution Agreement and, if necessary, a Permanent Parenting Plan, then you may seek or be required to use a neutral mediator's help to find a solution to any disputes you may have. A mediator is trained and sanctioned by the court to deliberate in an informal manner to help you first narrow and then resolve you're and your spouse's differences. Mediation is statutorily required in all adversarial divorces involving children and many judges require mediation prior to setting the case for trial.
Most cases that are mediated settle either during the mediation process or before trial. Even a mediation that solves only some of the matters in dispute can save both you and your spouse a significant amount of attorney's fees. Preparing for either mediation or trial requires knowing the value of all your and your spouse's assets and current debts and having clear idea of how both you and your spouse feel about all th e issues in dispute. Depending upon how much has been learned through discovery, preparing for mediation may require either a little or a great deal of effort. Regardless of what preparation is required, however, it will usually be much less than that which is needed for trial.
As much as either you or your spouse may be chomping at the bit to go to trial, most lawyers and judges know no one who has ever been through the process a few times wants a trial. Putting your future in a strange judge's hands is very dangerous. In addition to being risky, trials are both unpleasant and costly.
Still, if either you or your spouse or both of you insist on making unreasonable settlement demands or remaining obstinate about your divorce issues, you both will have to go to trial.
Preparing for Trial is Much More Costly Than All the Processes Previously DiscussedWhy? Because:
o You and your spouse will have to be deposed and prepared to testify;
o Fact witnesses will have to be interviewed, maybe deposed, and prepared to testify;
o Expert witnesses will have to be hired, prepared, and deposed;
o Property will have to be appraised;
o Mandatory pre-trial pleadings will need to be prepared;
o Direct and cross-examination of the parties and witnesses will have to be planned and practiced, as will opening and closing statements;
o Your case file in need to be organized and memorized;
o Your trial exhibits will have to be created;
o Legal research on a variety of issues unique to you case will have to be done by reviewing appellate cases with specific facts and legal issues similar to your case;
o Pretrial motions and memoranda will have to be written.
Prior to trial your judge will require both your and your spouse's lawyers to prepare pre-trial briefs for the court to outline the important issues of the case. A good judge will read these briefs before the trial; a mediocre one will scan them during opening statements; a bad one will completely ignore them.
A divorce trial can last from five minutes to five weeks. The progress and order of a trial is determined by the judge and no one but the judge. The judge may split your trial deciding on grounds, property division, alimony, and a temporary parenting plan first and then coming back later to decide the terms of your permanent parenting plan. For a variety of reasons, your judge might hear testimony one day and adjourn your trial for days, weeks, or even months before continuing again. Normally, however, your divorce trial will start and end within a few days.
If you are the plaintiff, your trial should begin with the your lawyer making an opening statement first, followed by the your spouse's counsel. Your lawyer will then put on your proof, calling witnesses and introducing documents and things into evidence. Then your spouse's lawyer will do the same. Your lawyer may put on a limited amount of rebuttal testimony. Then, if he or she wants to, your judge will ask to hear closing arguments.
After hearing closing arguments, the judge can either immediately rule on your case or decide to "take the matter under advisement" to take some additional time to review the facts and evidence before either calling everyone back in to hear his or her ruling or just issuing a written opinion days or weeks later. Whether it lasts a minute or a month, the time between close of the proof and the ruling is a very stressful time for everyone involved.
Following your trial, the judge will decide:
(1) whether to grant you and your spouse a divorce at all;
(2) whether you or your spouse, if either, will be granted a divorce and on what grounds;
(3) how the marital assets and debts will be divided;
(4) whether temporary or permanent support in the form of alimony will be awarded;
(5) who will be granted primary residential parent status and what the allocation of residential time with the children will be;
(6) how much will be awarded in child support;
(7) whether attorney's fees will be awarded; and
(8) to whom court costs will be assessed.
You Can Always Appeal, But Should You?Either you or your former spouse will have thirty days following entry of the court's order or ruling on the case to appeal any one or more of the judge's decisions by filing a "Notice of Appeal." If you or your spouse file an appeal, much more resources will be spent researching and writing the appellate briefs and arguing the two sides of the case to the Tennessee Court of Appeals.
To win on appeal, you or your spouse will have to prove to the appellate court the trial judge made an erroneous finding of fact or conclusion of law. The court of appeals can take as long as it wants to render its decision. An appeal could be pending between six and eighteen months, depending upon the length of the trial and the complexity and number of legal issues involved.
If you or your former spouse are still not satisfied with appellate court's decision, either of you may ask the Supreme Court of Tennessee to review that decision. The Supreme Court of Tennessee is not required to hear any particular case. It does not take many divorce cases in any given year. If it takes your case, the supreme court's review could take an additional twelve to eighteen months.
Post-Divorce WorkEven if neither you nor your former spouse appeals your trial judge's decision, there will still be much work to do after your divorce is granted. People who get divorced are often surprised at the expenses involved in doing post-divorce work. Again, collaboration can lessen this expense.
This post-divorce work can comprise the following:
o Transferring title to real property by preparing, executing, and filing quit claim deeds;
o Arranging refinancing for real property;
o Drafting, reviewing, finalizing, signing, and filing Qualified Domestic Relations Orders;
o Changing designated beneficiaries on life insurance policies and retirement benefits;
o Transferring title to automobiles on by signing old certificates of title and obtaining new titles; and/or
o Transferring possession of personal property as directed by the court or agreement of the parties.
Post-Divorce ModificationsAfter the divorce has been finalized, issues may come up that require modifications. Some parts of the divorce can be modified; others cannot.
For example, your and/or your former spouse's income may change enough to justify an increase or decrease in the child support you pay or receive. The amount of alimony may pay or receive may need to be modified due to a change in where you live, what you do for a living, or other circumstances.
Custody and visitation often have to be modified as well. Property and debt division cannot be changed by the court after the judge signs your final decree. Also, transitional alimony and alimony in solido usually cannot be changed unless the court or your marital dissolution agreement originally designated otherwise.
The refusal to follow court orders is a common occurrence in contested divorces. You may have to reinitiate legal action to enforce a judge's order and compel or prohibit certain actions by your former spouse. He or she may have to do the same thing to you if your behavior requires it.
The four most common reasons to seek enforcement of a divorce decree are for failure to turn over property, pay alimony, perform or allow court-ordered visitation, or pay child support,
Enforcement is most often accomplished by filing a Petition for Contempt. Failure to pay alimony or child support can be addressed by asking your judge to issue a wage assignment or garnishment of your or
your spouse's paychecks or bank accounts.
The petition is drawn by an attorney, filed with the court, and served on the recalcitrant party by the Sheriff along with a Scire Facias, which sets forth the court order, describes how the party failed to follow the court's order, and states that the party was capable of complying with the court's order. Usually the court will sign an fiat setting a hearing date and compelling the other party to appear in court to show cause why he or she should not be held in contempt of court. In cases of criminal contempt, after the defendant has been allowed a hearing and other procedural safeguards, the judge may choose to incarcerate him or her for violating the court's order.
In a limited set of circumstances, either you or your former spouse may file a post-judgment motion seeking to reopen your divorce case. This is usually done for intentionally or unintentionally failing to disclose assets. If either of you failed to disclose the existence or misrepresented the value of an important asset or debt during the divorce process, the other party may choose to re-open the divorce.
Easy, Inexpensive Divorces are Much Better than Knock-Down/Drag-Out OnesThrough all of this discussion, it should be obvious that cooperation and collaboration is the shortest and least expensive route to getting divorced and avoiding problems after the divorce is finalized.
If we can help you at any time with any aspect of your divorce, please feel free to contact us at any time.