When a Complaint if filed, if a party alleges fault grounds, usually inappropriate marital conduct, a temporary injunction can be issued automatically without independent judicial approval. This "Automatic Injunction" addresses several topics, including preventing the sale or transfer of certain assets, preventing the dissipation of marital funds and enjoining one party from threatening physical harm against the other and from harassing him or her. The Automatic Injunction is effective against both parties at the same time. Make sure you understand the terms of the Automatic Injunction if one has been issued in your case. If this Automatic Injunction is violated, the person violating the court order can be incarcerated for contempt of court.
If the parties do not immediately begin settlement negotiations, the next phase of the lawsuit is called discovery. Discovery is most commonly begun with the filing of Interrogatories, which are a set of written questions which must be answered under oath, and a Request for Production of Documents, which requires the other party to provide certain documents listed within the request. The answers and documents must be produced within 30 days. Other forms of discovery include depositions, subpoenas, and Requests for Admissions.
The discovery process can be short and inexpensive or lengthy and very expensive. The extent of discovery usually depends on the size and make-
In some divorces, the attorneys can agree to exchange discovery informally, requesting documents by letters and providing the documents without recourse to the legal process. This can reduce costs significantly. One reason a lawyer may advise against proceeding with discovery informally, even though it saves money, is that the documents produced by an opposing party will not be under oath. Answering interrogatories and producing documents under oath means that the person answering the questions and producing the documents is telling the complete and full truth and is subject to the criminal penalty of perjury. Most divorcing spouses are not willing to commit perjury to gain an advantage in a divorce. Further, if one spouse lies or omits assets under oath during the discovery process, the other spouse can use that lie or omission to allege circumstances sufficient to undo the divorce because he or she relied on the misstatements or incomplete production of documents.
Depositions are another common form of discovery. An advantage of taking discovery through depositions is that your lawyer will be able to view your spouse live and in action, seeing a performance similar to what might occur in a courtroom if the matter proceeds to trial. Further, in interrogatories and requests for production of documents there is oftentimes a follow-
For those couples with children, divorce creates a new set of parenting challenges. Divorcing parents must be willing to learn that some aspects of their relationship with their children will change, hopefully for the better. In Tennessee, divorcing parents must attend a four-
While you have engaged the services of your lawyer to zealously represent you, remember that your lawyer has an obligation as an officer of the court to act in the best interests of your children, even if that conflicts with your own interests.
For more information, see Introduction to Tennessee's New Parenting Plan Law. One of the important aspects of the new parenting plan law is that mediation is mandatory for all divorcing couples before a trial can be held. For more information, see Mediation FAQ's.
There are several methods a court can use to obtain information about the parents and their dispute over which parent should assume the role of primary residential parent. One of the most common methods is the appointment of a guardian ad litem ("GAL"). The GAL will often be a lawyer but can also be a mental health professional or a social worker. The GAL will conduct interviews with the children's parents, teachers, neighbors, and daycare providers, as well as with other persons who are regularly around the children. Usually, a report is written that contains recommendations which will be given to the judge. Most judges will not read the report until the trial begins. In high-
Instead of, or in addition to, a Guardian Ad Litem, a court can order an independent child custody evaluation by an experienced and independent court-
A party may also engage the services of a forensic psychologist as an expert witness to assist in advocating his or her position. Most often this occurs if one party accuses the other of some form of mental illness. The accused parent can consult with a psychologist for the purpose of having that psychologist form an expert opinion to refute the allegations against him or her and defend his or her ability to act as primary residential parent.
One of the most difficult and problematic, but common, situations arises when the children are the only witnesses to a parent's violent, destructive, or offensive behavior. Often, the children's testimony would be the best evidence to demonstrate that parent's poor behavior. Almost all psychologists and judges advise against calling a child as a witness in a divorce case for any reason. There are very few experiences which are more traumatic for a child than to be asked a question where the answer will be used to hurt one or both parents. Many lawyers agree and will refuse to call a child as a witness unless the matter involves severe physical or emotional abuse.
For some unknown reason, many divorcing parents mistakenly believe that at some magic age a child has the right to decide with which parent he or she may reside. That is false. In Tennessee, the rule is that at age twelve the judge must hear the testimony of the child and his or her preference for primary residential parent, either in the courtroom or in the judge's chambers. No judge will allow the preference of a child alone to determine the outcome of a contested custody case over the best interest of the child.
Unfortunately, lawyers and judges experience the aftermath of misuse of children far too often. One of the most common abuses of the divorce process is using the children as a negotiating pawn -
Judges use common sense in evaluating a party's parenting practices during the divorce process. Most judges believe that violating these common-
Do not interrogate the children.
Do not listen to or record the conversations between your children and spouse.
A responsible parent keeps his or her head in difficult situations and is not quick to anger.
Never use the children as weapons against your spouse by saying derogatory remarks to the children about him or her.
Do not discuss the case with the children-
Do not bring the children to your lawyer's office.
Do not bring the children to court with you for any reason.
Encourage and foster a relationship between your children and spouse.
Do not be critical or make fun of your spouse in front of the children. Children need to respect both parents.
Realize that children will naturally want to protect the weaker parent. Children often view the non-
Do not ask the children to spy.
Do not use the children to act as couriers or messengers, even to deliver a note or a late child support check.
Say "no" often. Children will quickly test a parent, looking to exploit the situation for what they believe to be their own benefit.
Parents are human and can make a mistake. Exercising good judgment means working hard to not make the same mistake twice.
Both parents will need to adjust residential time schedules. Be flexible.
Judges expect you to understand and remember that a responsible and mature parent discusses decision making with the other parent and seeks to reach an agreement on contested issues.
Failing to discuss an important decision with your spouse can undermine his or her authority with the children.
Never fight with or confront your spouse in front of the children.
Do not date, even if the case drags on a long time. If you are dating, never allow your children to be in the presence that person. Do not even discuss the new person in your life with the children. Never let your children see you kiss the person or learn that you have spent the night with that person.
Be courteous about visitation schedules. If you are going to be late or miss a visitation, give as much advance notice as possible to the other spouse.
Child support is a very important part of the divorcing process. Following a determination of who will be the primary residential parent, child support must either be agreed upon or set by the court. One of the first considerations must be determination of the income of the obligor parent. Then refer to the Child Support Guidelines Charts. The Charts cross-
The next phase of the divorce, often the final phase, is the negotiated settlement. Most lawyers and judges agree that a settlement will almost always be more favorable than the likely outcome of a contested trial. Settlement is preferred because there are opportunities for compromise and thoroughness in a Marital Dissolution Agreement (the settlement document) that may not arise in a court's ruling. For example, a mother who expects that she will likely be awarded primary residential parent status can negotiate that the father agrees to pay certain college expenses for the children. In a divorce trial, the trial court has no authority to impose that obligation upon the father. Also, divorcing spouses who settle their case often enjoy the privacy that a negotiated settlement can provide, as opposed to a trial where friends and family will likely be called as witnesses, putting the spouses' personal problems on display. Finally, voluntary compliance with an agreement is always the preferred result. Enforcement of a court order can be very expensive.
Another advantage of the negotiated settlement is that a divorcing party can retain more control. The decision of whether or not to settle a divorce case is the client's and only the client's. While a lawyer may recommend for or against a proposed settlement, the final decision still remains in the hands of the client.
The process by which a divorce reaches a negotiated settlement varies from case to case. One common method is that one of the lawyers will be the first to draft a proposed Marital Dissolution Agreement and, if there are children, a proposed Permanent Parenting Plan. The other party can respond by making a counter-
One bit of good news about mediation is that, while many people believe mediation can be a waste of time, money, and effort, statistics show that over 60% of cases which are mediated either settle during the mediation process or before trial. In almost all circumstances, mediation will save the parties a significant amount of attorney's fees if the case settles. Preparing for mediation requires knowing the value of all the other party's assets, knowing the amount of his or her current debts, and having clear idea of what a reasonable settlement may be. Depending upon the amount of detail learned through discovery, preparing for mediation may require either a little or a great deal of effort. In an average contested case, trial preparation can cost three to ten times as much as mediation preparation. For more information about mediation, the process, and its requirements and restrictions, please see the Mediation section in these materials.
In the event that settlement negotiations and/or mediation fails, the case will head towards trial. Some courts will force a trial date on the parties to give them a deadline for negotiations. Other courts will require the parties to apply for a trial date. In either event, preparing for trial can be the most costly of all the processes previously discussed. Examples of pre-
No one wants a trial. In addition to the outcome being uncertain, trials are both expensive and unpleasant. One of the hardest things to communicate to a client, however, is that trial is sometimes the only alternative to a continuing stream of unreasonable settlement demands or an unwillingness to negotiate at all. Placing your future in the hands of a judge, who is most likely much different from you, is very risky, but may be necessary.
Court rules require the lawyers to prepare pre-
At trial, the court will decide the following issues: (1) who will be granted a divorce and on what grounds; (2) who will be granted primary residential parent status and what the allocation of residential time with the children will be; (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) how much will be awarded in child support; (6) whether attorney's fees will be awarded; and (7) against whom court costs will be assessed.
During the trial, the plaintiff's lawyer usually speaks first, followed by the defendant's counsel. The plaintiff's counsel then puts on proof, calling witnesses and introducing documents and items into evidence. Then the defendant's lawyer does the same. The plaintiff may be granted some limited opportunity to offer rebuttal testimony, and then the court decides whether or not to hear closing statements.
The progress and order of a trial is defined by the judge and only the judge. A divorce trial can last from one morning to several weeks. A judge can hear one trial on custody and then have another trial on property division and alimony. Depending on the court's schedule, a judge can receive testimony one day and wait weeks, even months, before continuing again. Although unusual, the judge can even hear more than one case at a time. In other words, it is possible for an unusual procedure to occur.
Following closing statements by the attorneys, the judge can immediately rule on the case. If the court takes additional time to review the facts and evidence and issues a written opinion days or weeks later, this is called taking the matter "under advisement." This can be a very stressful time for the parties. The parties have thirty days following entry of the court's order or ruling on the case to appeal. Normally this is done by filing a "Notice of Appeal." If either party chooses to appeal the trial court's ruling, in effect he or she is asking the Court of Appeals to find that the trial judge made a mistake of law. The time necessary for an appeal usually lasts between eight and eighteen months, depending upon the length of the trial and the complexity and number of legal issues involved. There is no time limit for the Court of Appeals to render its decision. Finally, following the appellate court's decision, either party may ask the Supreme Court of Tennessee to review that decision. The Supreme Court of Tennessee is not required to hear any particular case. In recent years, the Supreme Court has been hearing about twelve family-
Most divorcing parties believe that a divorce winds up immediately following a settlement or a ruling by the court. Rarely is that the case. In most divorces, there is a significant amount of work to be done after a Final Decree of Divorce is signed by the judge. Examples include, but are not limited to, the following: preparing, executing, and filing Quit Claim Deeds transferring ownership interest in real property; obtaining refinancing for real property; changing designated beneficiaries on life insurance policies and retirement benefits; drafting, reviewing, executing, and filing Qualified Domestic Relations Orders; transferring title on Certificates of Title for automobiles; and transferring possession of property as directed by the court or agreement of the parties. Divorcing parties are often surprised at the expense for completing these transactions.
Whether or not the terms of the divorce were agreed to between the parties or decided by the judge at trial, there may be need for modifications following the divorce. Child support is the most common example. A change in the obligor's income may necessitate an increase or decrease in child support. In many cases, alimony may need to be modified due to a change in cities, a change in employment, or other circumstances. Custody and visitation are other matters which can change as well. Check with your lawyer because some parts of the divorce can be changed and others cannot. An example of an item that cannot be changed by the court is property and debt division. Also, transitional alimony and alimony in solido most likely cannot be changed unless the court or the agreement has designated otherwise.
In the event that one of the parties fails to follow a court order, the other party may be forced to initiate legal action to enforce the order and compel an action or inaction by the non-
Elements of civil contempt include proving that an individual has the present ability to comply with a court order and is simply choosing not to comply. Elements of criminal contempt include proving that an individual had the ability to comply with the court order but chose not to do so. An example of civil contempt is when one party has the ability to sign over half of an IRA to a former spouse but chooses not to complete the paperwork as agreed to by the parties and/or ordered by the court. An example of criminal contempt arises when a party had the ability to pay court-
Initiating contempt proceedings should be a party's last resort. Strategic thought and planning should precede filing a petition for contempt to make sure that specific goals can and will be achieved during the process and to try to avoid unnecessary or ineffective litigation.
Another category of post-