Once the word “divorce” is spoken to a spouse by a spouse, the seed has been planted. Many clients often worry about when is the right time to contact a divorce attorney. The correct answer is: as soon as possible. Being informed about the divorce process, applicable laws, and available strategies to protect your goals is critical in deciding how to move forward, even if moving forward means remaining married. 

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Each marriage is unique and it’s best to learn how the law applies to the specific facts of your matter. Please review the basics of divorce below but do not solely rely on them without consulting an attorney.

 

Uncontested v. Contested. Tennessee law requires that a divorce be based upon at least one “ground”. For an uncontested divorce, the ground is usually irreconcilable differences. Those two words simply notify the Court that the parties agree they no longer need to be married. If parties choose to file uncontested, each party should consult with independent counsel. Uncontested means that both parties agree on each facet of the divorce, including (if applicable) division of marital assets and debts, parenting arrangements for children, alimony, and child support.

If the parties can not agree on all facets of the divorce, the divorce is contested. There are many grounds for a contested divorce and each may require different types of evidence to prove the ground. You may file a divorce pro se (without an attorney) but it is highly advised against. Pro se parties are not always aware of the evidentiary rules, procedural rules, relevant statutes or case law, and other limitations that could silence their argument before it is ever heard by a Judge. Even though the laws of this state and country recognize the right to be married and be a parent as fundamental, a party to a divorce is not appointed an attorney if they can not afford one, unless it’s regarding a very limited issue like contempt. If you cannot afford an attorney, there are several organizations that offer legal aid. Through the help of the organizations, you may be able to work with a pro bono attorney who will represent you either for free or at a reduced rate.

 

The Cooling-Off Period. Many states, including Tennessee, implement a waiting period intended to be a “cool-off” time for the parties. This can be frustrating if one or both parties want to be divorce immediately. If the parties do not have minor children, the waiting period is sixty (60) days after the divorce is filed. If the parties have minor children of the marriage, the waiting period is ninety (90) days after the divorce is filed. There are steps that can be taken during the waiting period to separate the lives of the parties and reflect a divorced life before the divorce is finalized by the Court.

 

Discovery and Mediation. Each divorce requires an equitable division of marital assets and debts. It is best practice to not divide the marital estate until each party is well-informed of the totality of the estate. The southern euphemism to explain this is “we can’t slice the whole pie until we know all of the ingredients to cook the pie.” The investigative process to determine the ingredients is called Discovery. There are many methods to discovery that can be utilized including serving questions on the adverse party to answer under oath, serving statements on the adverse party to be admitted or denied under oath, deposing the adverse party to answer questions, in person, under oath, serving subpoenas compelling witnesses to testify and/or provide evidence.

 

Once the client is well-informed of the totality of the marital estate, the parties must attend mediation. Tennessee law requires mediation in a divorce under most circumstances. Mediation is when each party and their attorney meet separately with a third-party (mediator) and try to settle the issues in the matter. Mediation is usually successful and can usually settle at least one issue which cuts down on the issues to be heard at trial and saves the client money. Attendance of mediation may be mandatory, but settling is not required. Each party must participate in good faith.

 

The Divorce Trial. If the case does not settle in mediation or before the trial begins, the parties will attend trial during which each party’s attorney will make legal arguments, if applicable, regarding child custody, child support, equitable division of marital assets and debts, alimony, relocation, and other related issues. Each party usually asks at least one witness to testify on their behalf. Some cases include more complicated issues like high wage earners or high asset marital estates. Clients may need at least one expert to testify regarding income, business valuations, partnerships, tort liability, appraisals of marital property, standard of living, etc. It is best to consult with an attorney that is well versed in the intricacies of all facets of divorce.

 

Alternatives to Divorce. Each case is unique to their own facts and divorce may not be the best solution to remedy the issues in the relationship. Tennessee law allows for a legal separation which entitles the parties to act as though they are divorced without being divorced. Legal separation allows the parties to split up their marital estate. The primary difference between a divorce and legal separation is that divorce is absolute and the final step in ending the marriage. Legal separation does not end the marriage. If parties choose to legally separate in accordance with Tennessee law, they can always choose in the future to reconcile or move forward with the divorce. The major limitation of legal separation is the inability to marry another person.

 

Other alternatives to divorce include marital agreements and annulments. Most people have heard of a “prenup”, yet Tennessee law recognizes two other marital agreements: Postnuptial Agreement (“postnup”) and Reconciliation Agreement. Each of those Agreements result in the parties moving forward with their marriage with new terms to protect each party. Annulments are recognized by Tennessee law but are extremely rare. It is best to consult with an attorney that is well versed in legal separation and marital agreements.

 

Divorce and related actions can be beyond emotionally taxing for clients. The process can become extremely complicated, fairly quickly. Even parties going through an uncontested divorce can benefit from experienced legal counsel. While the unknown is challenging, having an experienced attorney to zealously advocate for you helps relieve the anxiety and pressure. Ms. Grewe provides a personalized service that meets each client’s needs and will guide you through the processes of family law with expertise, empathy, and excellence.