It is impossible to say exactly how much your divorce mediation will cost, as each mediator sets his or her own fees and sets how those fees are to be paid. In most cases, mediators will ask that each spouse pay one-half of their fee. The parties can agree to a different arrangement, such as 60-40 or one spouse pays the entire fee. If the parties cannot agree on how to pay the fee, either spouse can petition the court requesting an order forcing the other spouse to pay the mediator’s fee or a portion of it. Read More.
In most cases, the mediation session will be held at the mediator’s office. Your attorney should be present to advise you of your legal rights and to advise you of the consequences, pros, and cons of any proposed settlement agreement. Read More.
Our divorce was final last year, and we co-parent the children on a 50/50 week on/week off basis. Can I move out of state?
In Tennessee, once a parenting plan is established, if one parent wants to move more than 50 miles away from the other parent, he/she must send notice at least 60 days prior to the move. The notice must include a statement of intent to move, where you are moving, the reasons you want to move, and a statement that “absent agreement between the parents or an objection by the non-relocating parent within thirty (30) days of the date notice is sent…the relocating parent will be permitting to do so by law.”
If you are unable to reach an agreement on a new visitation schedule or if a petition is filed, you must file a petition seeking approval of the relocation. The other parent must file a response within 30 days, and if he/she doesn’t, you will be permitted to move. If the petition goes to a hearing, the could will consider whether the proposed move is in the best interests of the child(ren) according to the factors found in Tenn. Code Ann. § 36-6-108. Even if you have permission to move without a hearing, it is less likely that a 50/50 schedule will still work well with the additional distance between the parents, so it is likely that a new Permanent Parenting Plan would be required.
Mediation can be very helpful and save substantial costs in the event of a proposed relocation, but it can be a very difficult issue because it shifts the amount of parenting time significantly. If you are considering relocation or the other parent has told you he/she would like to move, you should consult with a lawyer to discuss your options and the best strategy to accomplish your goals in light of what is in your child(ren)’s best interests.
How old do my kids have to be to decide they want to live with me?
One of the many myths in family law is that when kids reach a certain age, they have the power to decide with which parent they want to live. While it is true that Tennessee law provides that the judge must consider “the reasonable preference of the child if twelve (12) years of age or older,” this is but one of 15 factors the court must consider. The court may also hear the preference of a younger child upon request, and the preference of older children should normally be given greater weight than that of younger children. The weight of the child’s preference will depend on the maturity level of the child, the reasons offered, and whether it appears that the child has been coached. All of this will be considered in conjunction to the other 14 factors found in Tenn. Code Ann. § 36-6-106(a) in making an initial determination on child custody or modifications to an existing Permanent Parenting Plan.
Deciding whether to put your child in the position to testify is not an easy one to make and should take into consideration the effect on your child. It can be a very difficult position for a child to be in, and often that can result in the child telling each parent what he or she wants to hear, resulting in unpredictable testimony at the hearing.
What is alimony?
In Tennessee, alimony may be awarded if one spouse is economically disadvantaged compared to the other spouse. There are four types of alimony: alimony in futuro (periodic alimony), rehabilitative alimony, alimony in solido and transitional alimony. One or more types of alimony may be appropriate depending on the facts and circumstances of a case. The court is required to consider all relevant factors, including:
(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek employment outside the home, because such party will be custodian of a minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and intangible;
(8) The provisions made with regard to the marital property, as defined in § 36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
We want a 50/50 custody arrangement. Does anyone have to pay child support since we are equally splitting time?
In Tennessee, child support is calculated according to the Child Support Guidelines. Many people believe that as long as they equally divide their time with the children, then child support is “canceled out.” That is only true if each parent earns the same amount of money from similar sources. The Child Support Guidelines take several factors into account, including income, self-employment tax, days spent with the child or children, childcare costs, health insurance premiums, and more. Typically, in a 50/50 co-parenting situation, one parent will still pay the other parent some amount of child support
What is a prenuptial agreement?
A prenuptial agreement (a.k.a. antenuptial agreement // a.k.a. “prenup”) is an agreement two people make in contemplation of marriage. These agreements only become effective when the parties actually get married. They can cover a number of limited situations (e.g. protecting certain assets or all assets, in the event of separation, divorce, death, or all of the above).
Sometimes people who are entering into a second or third marriage who have children they want to inherit from them have an interest in protecting some of their assets to be sure their children ultimately receive them. Some are painfully aware of how destructive and expensive a contested divorce can be and want to avoid that should things go south. Others may have a substantial estate they want to protect in the event the marriage does not end as they had hoped.
Prenuptial agreements are enforceable in Tennessee, but there are a number of ways to challenge their enforcement depending on the language of the agreement and the circumstances of the execution. It is important to hire someone knowledgeable and experienced in drafting and/or litigating prenuptial agreements if you are considering entering into an agreement or need to challenge or enforce one.
I inherited money from my Aunt Martha last year. Does my spouse have any claim to that money?
What happens to your inheritance when you go through a divorce? The answer to this is officially the most common answer given by lawyers anywhere ever: “It depends.” Under Tennessee law, the property received as a gift or an inheritance is separate property, as opposed to marital property. However, it is possible for separate property to become marital property through transmutation or commingling. If you receive an inheritance and put it in an account under your name only, without your spouse’s name listed on the account, there is a much higher probability that the inheritance will retain its status of “separate property.” However, if you deposit the money into a joint account, use the money to pay down the mortgage on your marital residence, or use it as start-up capital for a new business you and your spouse are beginning, the odds are greater than the inheritance has become marital property through commingling or transmutation. These matters depend on the facts specific to your case.
My ex is the worst. How am I supposed to facilitate our children’s relationship with the other parent?
When you are going through a divorce, and once you are divorced, it is very important that the child is able to freely love and have a close relationship with the other parent. (As with almost every issue in family law, this is also case-specific, and there are some situations where it is not possible or appropriate for a child to maintain a close relationship with one or both parents). The child feels like each parent is a part of him or her, so when one parent criticizes the other to the child, the child can feel like you are really insulting him or her.
The court is directed to consider all relevant factors in determining a custody arrangement, including this one: “Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.” Tenn. Code Ann. § 36-6-106(a)(2). The first page of the Permanent Parenting Plan entered in divorce and custody cases includes this language: “The mother and father will behave with each other and each child so as to provide a loving, stable, consistent and nurturing relationship with the child even though they are divorced. They will not speak badly of each other or the members of the family of the other parent. They will encourage each child to continue to love the other parent and be comfortable in both families.”
Going through a divorce and learning how to co-parent with someone with who you were once married or romantically involved involves growing pains and can be incredibly difficult. If you need to vent about your ex-spouse, consider seeking therapy or speaking with a close friend you can trust. No matter how old your child is or how close you are with your child, do not use your child as a sounding board to vent about the divorce or your frustrations with your child’s other parent.
What is mediation?
Mediation is one form of alternative dispute resolution (“ADR”). In mediation, the mediator is a neutral third party who works with both sides, typically in separate rooms, to try to help you get your case resolved. If you participate in mediation and get your case resolved, you do not have to go to trial. It is also possible to go to mediation to resolve some of your issues to simplify and narrow down what must be tried in court.
The process of mediation is protected in that anything that is said or presented at mediation cannot be mentioned at trial should the case not settle and proceed to trial. Also, the mediator cannot be subpoenaed as a witness at trial.
Many cases are resolved without going to mediation or trial. If your family law case is headed for trial, you typically must go to mediation before you can get to trial. There is a good reason for this, as mediation has an incredible success rate. While there is some conflict and tension involved in a mediation (because everybody is there to resolve a dispute), the atmosphere is much more relaxed than at trial. In mediation, parties have control over how their case is resolved, unlike at trial. If there are family traditions and customs that you want to include in your parenting plan or marital dissolution agreement, you have the opportunity to do that, whereas at trial, the judge is not necessarily going to consider those things. Mediation can also save money if you are able to resolve your case without spending significant fees on the litigation process.
Does my spouse have any right to my retirement account? I earned all of that money through my job.
Many people assume that their retirement accounts are not marital property and are not subject to division in the process of a divorce, because the other spouse did not earn the money or do the work required to have accumulated savings in their retirement account through work.
In Tennessee, marital property is typically going to include any assets that either spouse acquires during the marriage, with the exception of separate property, which includes inheritance and gifts, as long as they have not been commingled with marital property or transmutated into marital property. The specific details of your particular situation may have a large bearing on whether any one piece of property will be categorized as marital property or separate property. Generally, a retirement account funded by earnings from employment or business ownership during the marriage will be deemed marital property, although the balance existing at the time of marriage, if any, will be considered in determining the marital portion of the retirement account. The same concepts applies to pensions to the extent that the entitlement to the pension is the result of employment during the marriage.
Marital property is to be divided equitably by the court according to the factors included in Tenn. Code Ann §\ 36-4-121.
As with most matters in family law, these issues must be evaluated on a case-by-case basis, and your results may vary depending on the facts of your case. This is not legal advice, but rather general information regarding a general issue. If you have specific questions regarding your own situation, call Lisa Hall at (865) 292-2228 or email her at [email protected] to schedule a consultation and case evaluation.
My spouse and I can’t agree on anything. Does this mean we are going to trial?
Getting a divorce requires a certain meeting of the minds and compromise, which can seem pretty far-fetched in situations where the marriage is broken often because spouses no longer see eye-to-eye or are unwilling to compromise. Most people who come to us want to find an amicable resolution to their case. The trial is one way to get your case resolved, but it gives all the power to the judge who will never be as familiar with your background, family traditions, needs of your children, etc., as you and your spouse are. It can also be very expensive to go to trial, and the adversarial nature of trial will often require you and your spouse to take positions that are hurtful to the other, which can have lasting effects on the co-parenting relationship going forward, not to mention the stress of going through it.
Sometimes there is no other choice – either you have both dug your heels in on an issue, or your spouse refuses to compromise on an issue that is equally as important to you, or there are unresolved feelings that make it hard for one or both of you to evaluate issues objectively and pragmatically. That being said, there are many opportunities to resolve your case prior to going to trial. Most cases headed for trial will go through the mediation process first, and mediation has a tremendous rate of success. Cases are also often settled between the lawyers without going to mediation, and a fair amount of cases are discussed and essentially settled between the spouses, in which case lawyers are retained to draft the documents and finalize the details, etc. The odds are that you will ultimately get your case settled without the need for a trial, but it makes sense to hire a lawyer with trial experience just in case. You are not able to bargain from power of strength if you are not ready and willing to go to trial if necessary.
When can I date?
One of the realities you will learn when you hire a #lawyer is that you won’t always like the #advice you are given. We are here to advise and protect you and that includes protecting you from bad decisions that will hurt your case. You may like it in the moment if your lawyer only tells you what you want to hear, but you won’t always like the end result. Having said that, you are #married until you are #divorced. Even if you have moved out. Even if your spouse has moved out. Even if your spouse is already dating. Even if your spouse is already engaged. (Yes, that happens). Even if your spouse is in jail. Even if your spouse is a terrible human being. One of the #grounds for divorce is #adultery, and if you start dating, you could be found to have committed adultery and thus establish grounds for divorce for your spouse.
Also, #fault can be considered by the judge in awarding #alimony, so you could prejudice your case by #dating before the divorce is final. Does it happen? All. The. Time. But the best decision is to wait. Get into counseling. This process can be really tough and getting support to process and manage your feelings and start to move forward is vital, no matter who you are or how friendly your divorce is. This too shall pass, for sure, and it is our goal to make it as painless as possible and to provide advice that is in your best interest, even if it is not the advice you want at the moment.
Can I bring a family member or friend to meet with my lawyer?
Many new clients appear for their initial consultation with a family member or friend for moral support, as a second set of ears, or to help fill in the gaps of their story that they may forget to tell. We understand that coming to see a lawyer about a potential divorce can feel intimidating, especially if this is your first experience hiring a lawyer or with the legal system. However, communications with a lawyer are protected by rules of confidentiality and the attorney-client privilege, which encourages clients to communicate openly and honestly with their attorneys, even when the subject is embarrassing or legally damaging. Lawyers need this information for effective representation and to advise their clients going forward.
If someone accompanies you to the consultation, the protections offered by attorney-client privilege are jeopardized. Also, clients are often more comfortable speaking openly about everything – the good, bad and ugly – without friends or family members, no matter how close, in the room. So, it’s really best to come to your appointments alone for the most comprehensive and helpful consultations. These are really important meetings where we can identify the legal issues, advise you, and often come up with a strategy and a plan. If you are considering divorce but have not yet made a decision, these meetings can also help you understand your rights and what a divorce would likely look like should you decide to proceed. We can also discuss the best timing to file or what steps you can take to put yourself in the best position should you or your spouse decide to file for divorce.
How long does it take to get a divorce in Tennessee?
In Tennessee, there is a minimum waiting period of 60 days from the date the Complaint is filed if there are no minor children of the marriage. If there are minor children, there is a minimum 90-day waiting period. Agreed divorces are often resolved in that 60 to 90-day time period, if they are not already agreed at the time of filing, but some cases take longer to negotiate and resolve. If your case goes to trial, it will likely be several months and can take a year or more before the case is tried. If you would like to discuss the specifics of your situation, please call Lisa Hall at (865) 292-2228 or email at [email protected] to schedule a consultation and case evaluation.
My spouse and I agree on the divorce. Can we just hire one lawyer to represent both of us?
We frequently get calls from people who want us to represent both spouses in the divorce. For many reasons, we cannot represent both parties. As your lawyer, we are your advocate and advisor and it is our duty to represent you and your interests only. Even if you want to resolve your case amicably, your interests are adverse. You also want to make sure that your communications with your lawyer are #privileged and #confidential, which can only happen if you are communicating with your lawyer alone. We love to help our clients resolve their cases as quickly, efficiently, and amicably as possible, but not without making sure our clients are fully advised and protected. We do often represent one party in a divorce and prepare all of the paperwork, which the other party signs, but we make it clear that we do not represent the other party.
What are the grounds for divorce? What if I don’t want a divorce?
There are several grounds for divorce in Tennessee. A divorce based on the grounds of “irreconcilable differences” requires agreement as to all aspects of your divorce, including grounds, #custody, child support, #alimony, property division, and all other details. Other grounds include inappropriate marital conduct, impotence at time of marriage, bigamy, #adultery, desertion, conviction of infamous crime, attempt on the life of the other spouse, pregnancy by another person at the time of the marriage without the knowledge of the husband, #abandonment, and lengthy separation with no minor children. Tenn. Code Ann § 36-4-101. If the divorce is contested, one of these grounds must be proven. However, in most cases, if a spouse wants a divorce, he/she will usually be successful in getting a divorce. Every situation is unique, so you will want to speak to a lawyer to see if you can stop the divorce from happening. If you are considering divorce or you have learned that your spouse wants a divorce, call (865) 292-2228 or email Lisa Hall at [email protected] to discuss your options. We are here to help!