Below are some of the most frequently asked questions we hear from our clients. While these answers are not a substitute for a lawyer’s individual advice, they can provide useful, general information.
FAQ: Family Law
Do I really need an attorney for divorce?
You can file for divorce without an attorney. However, many people who choose to file divorce without legal representation realize too late that a lawyer would have made a dramatic difference. The end result of any case will have long-term and far-reaching effects on the people and things that matter most to you — such as your children, your retirement, your ability to support yourself and more. Once a final resolution is reached, it’s very difficult and/or impossible to change. Even if you may save money, you can end up with a less favorable outcome both legally and financially.
Having a qualified attorney on your side gives you the benefit of having a professional represent and fight for your interests. An experienced attorney will protect your rights, help you understand your options and pursue an outcome that is aligned with your goals.
Do I need to prove that my spouse did something to cause the divorce?
No. Tennessee’s no-fault divorce laws mean that you no longer need to provide a specific reason for your divorce. Simply stating that you and your spouse have irreconcilable differences is enough to proceed with a divorce.
Will I have to go to court?
Most family law cases settle prior to court, reaching a resolution either through negotiations and/or mediation. Mediation is a process in which the parties meet with a neutral mediator who attempts to facilitate reasonable agreements as to the various issues in their case. In most family law cases, the court will require that you attend mediation before trial. Having effective and knowledgeable legal counsel means that most parties end up resolving their issues short of trial. The quality of your representation, your progress in negotiations, and your ability and willingness to compromise are the most likely indicators that your matter will be resolved without a full-blown trial.
How is child custody determined in Tennessee?
Courts in Tennessee base custody decisions upon an analysis of several statutory factors, which determine what custodial arrangement is in “the best interest of the child.” In doing so, the court is required to attempt to reach a resolution that will ensure both parents enjoy the maximum participation possible in their child’s life. However, this does not necessarily mean that each parent will receive 50-50 custody, as courts are also required to take into account other factors.
The factors that the court considers in making custody determinations are numerous and their application varies on a case-by-case basis. For more details on the factors and how they would apply in your specific case, you should consult with a qualified attorney. Each factor is weighed in consideration to other factors, and could result in material changes and/or consequences to parents’ custodial and visitation rights. For a complete list of the statutory factors, see Tennessee Code Annotated § 36-6-106.
How does property division work?
For the purposes of divorce, property is divided into two types: marital and separate. In general, property acquired during a marriage is considered to be marital property, though there are exceptions such as gifts or inheritances. Separate property is property that was acquired by the individual spouses before the marriage. If separate property is “commingled” with marital property, meaning if it is combined with marital property in a bank account or mixed together with marital property in another way and cannot be separated, it will be considered marital property.
Tennessee is an equitable distribution state. This means that all marital property will be divided in a way that is fair and equitable, but not necessarily equal. Courts will look at many factors when deciding upon an equitable division of property, including:
- The length of the marriage
- Each spouse’s age, health, skills and finances
- Each spouse’s earning capacity
- Each spouse’s contributions to the marriage
- The value of the separate property each spouse owns
- The tax consequences of certain property settlements
The sorts of alimony available for Tennessee residents?
Tennessee courts allow for four different types of alimony awards. This includes periodic alimony and alimony in futuro. Periodic alimony provides an award of alimony over a certain period of time for a spouse facing financial hardship. This sort of alimony provides that spouse a fresh financial start. Alimony i n futuro provides payments for the foreseeable future so that the spouse can experience the same standard of living she or he had during the course of the marriage. Often courts grant such awards due to old age or disability.
Rehabilitative or transitional alimony assists an economically dependent spouse to find financial stability following the divorce. Lump-sum alimony, or alimony in solido, provides a single, one-time lump-sum payment by one spouse to the other to make up for any uneven distribution of assets and property during a divorce.
When deciding on the amount and kind of alimony award, the court will look at a number of factors contained in state statutes. Recipients cannot seek any award after the granting of the divorce.
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