Frequently Asked Family Law Questions

Frequently Asked Family Law Questions

Going through a divorce is an emotionally stressful and confusing time. Whether you are filing for divorce or your spouse has served you with divorce papers, you will likely have many questions that you need answering. At the Law Office of Lords and Cate, LLC, we can answer your questions and help you through this difficult time. The following are some frequently asked family law questions from clients:

Q: I want a divorce, what do I do first?

Consult an attorney. You will want to speak with an experienced family attorney to fully discuss the facts of your case in order to understand your options and the potential timeline for filing your divorce.

Q: Once I have decided I want a divorce, what is the process?

For an uncontested (irreconcilable differences) divorce:

  • Meet with The Law Office of Lords and Cate, LLC to begin preparing the paperwork,
  • File divorce petition with the court,
  • Prepare a Marital Dissolution Agreement and a Permanent Parenting Plan (if there are children involved),
  • After the waiting period (90 days when there are minor children, 60 days if not), a court hearing for the judge to approve,
  • Final Decree is entered (if judge approves).

For an contested divorce:

  • Meet with The Law Office of Lords and Cate, LLC to begin preparing the paperwork,
  • File divorce petition with the court,
  • Provide the other spouse with notice (serve them with the divorce papers) of the filing,
  • The other spouse will have 30 days to file an Answer to the divorce petition,
  • The discovery process begins. This is the fact finding process that includes requests for production of documents, interrogatories, depositions, etc,
  • Depending on the case and what was learned through the discovery process, motions may need to be filed,
  • Trial,
  • The court issues a Final Decree. The court will have decided whether or not to grant the divorce, on what grounds to grant it, how the property is to be divided, and custody/visitation of any minor children.
Q: If my spouse and I file for an uncontested divorce, can we hire just one lawyer?

Technically there isn’t anything wrong with representing both parties in an uncontested divorce However, there is a chance that the parties won’t be able to agree on everything and the divorce will become a contested matter. In that case, both parties will need to hire an attorney. If both parties have already agreed on everything and simply want the legal work done, one of the spouses can hire The Law Office of Lords and Cate, LLC and we will complete the legal work while only representing one of the parties.

Q: What is the difference between a contested and an uncontested divorce?

An uncontested divorce is when both parties agree to divorce, and file under “irreconcilable differences.” When the parties file uncontested, they have agreed on every single element of the divorce such as custody arrangement and property division. A contested divorce is a when the parties cannot agree on at least one or all of the elements of the divorce. Such as the grounds for the divorce, parenting time, custody, property division, or alimony. In a Contested divorce, the judge will make the decision as to each element.  It is not uncommon for a divorce to begin as an uncontested divorce but quickly become contested.

Q: How long will the divorce take?

The short answer, it depends, but there are waiting times that cannot be waived. When filing an uncontested divorce, if there are minor children involved, there is a 90 day waiting period from the date the divorce complaint is filed, and 60 days if there are no minor children. If you are filing a contested divorce, it could take up to two years to complete.

Q: How much will the child support payments be?

Child support must be set according to the Tennessee Child Support Guidelines which follows an “income shares” model for determining the amount to be paid. You can get an estimate of the expected child support payment here.

Q: If we have equal time with the children, will either of us have to pay child support?

Short answer, yes. The judge will order child support payments. The same calculations will apply for establishing child support payments when the parenting time is unequal.  

Q: What is a Marital Dissolution Agreement?

A Marital Dissolution Agreement is a document used in uncontested divorces where divorcing parties agree to the division of their assets and liabilities. Basically, it is a contract to end the marriage.

Q: Can I start dating while waiting for the divorce to be completed?

No, while the divorce is pending, even if you are living apart, you are still married and this is viewed by the court to be improper marital conduct and adultery. If you start dating someone else, this could negatively impact the outcome of your divorce.  

Q: How do the courts determine who will have custody?

In Tennessee, the parent with custody of the children is known as the Primary Residential Parent. When determining custody, the courts try to determine what is in the best interest of the child. The court considers all the relevant facts as well as the following factors:

  • The location of the parents residences,
  • The child’s need for stability,
  • The strength, nature and stability of the child’s relationship with each parent, including whether one parent has performed the majority of the parenting responsibilities relating to the daily needs of the child,
  • Each parent’s pr caregiver’s past and potential for future performance of parenting responsibilities,
  • Refusal to attend a court ordered parent education seminar may can be considered, by the court, to be a lack of good faith effort in the proceedings,
  • The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care,
  • The degree to which a parent has been the primary caregiver, meaning the parent who has taken the greater responsibility for performing parental responsibilities,
  • The love, affection and emotional ties existing between each parent and the child,
  • The emotional needs and development level of the child,
  • The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child,
  • The child’s interactions and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities,
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment,
  • Evidence of physical or emotional abuse to the child, to the other parent or to any other person,
  • The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child,
  • The reasonable preference of the child if twelve (12) years of age or older,
  • Each parent’s employment schedule,
  • Any other factors deemed relevant by the court.
Q: Will I receive/pay alimony?

Alimony is based on the theory that spouses have a duty to provide temporary support upon separation. Whether alimony will be granted is entirely up to the court and depends on the circumstance of each case. If the court finds that one spouse is economically disadvantaged relative to the other spouse, the court may award support. Some of the factors the court considers when awarding alimony are:

  • Duration of the marriage,
  • Ages, health, mental condition of the parties,
  • Earning ability of the parties and economic disadvantage,
  • Obligations, needs, and assets of each party,
  • Income, including pensions, profit-sharing plans, retirement plans, disability benefits of each party,
  • Education and training of each party,
  • Need and ability for future education and training,
  • Responsibility for child care in the home,
  • Property division,
  • Standard of living enjoyed in the marriage,
  • Contributions of each party to the marriage,
  • Relative fault

This is not an exhaustive list, because the court will basically take everything into consideration when it comes to alimony. Tennessee appellate court consider need and the ability to pay to be the most important factors to consider.

Q: How will the property be divided?

Rather than dividing the property down the middle in a 50/50 split, Tennessee is an equitable distribution state. This means that marital property is divided in a fair and equitable manner. Equitable division does not mean equal division. First, we have to determine what is marital property and what is non-marital property. Non-marital property generally consists of any property owned prior to marriage, whether it is real or personal property, gifts, and inheritances. But if the property becomes comingled with marital property, the court may consider it part of the marital property. Some of the factors the court will consider for equitable division of property are:

  • Duration of the marriage
  • Age, physical and mental health or each party,
  • Vocational skills of each party,
  • Employability of each party,
  • Earning capacity of each party,
  • Esparate estates of each party,
  • The contribution of one party to the education, training, or increased earning power of the other party,
  • Contribution of each party to the acquisition, preservation, appreciation, depreciation, or dissipation of the separate and marital assets of the parties, including contribution to the marriage as homemaker, wage earner, or parent.
  • How the property was acquired,
  • Improvements to the property made by one or the other spouse,
  • Gifts between parties,
  • Agreements between parties
    • Prenuptial,
    • Reconciliation,
    • After separation
    • Postnuptial agreement

These are just a few of the many factors considered by the courts, but basically, the court will consider all relevant factors.