|Posted on January 19, 2016 at 3:30 PM||comments (2)|
Tennessee is a hybrid state, allowing fault based and no fault divorces. This means that one party can allege grounds for divorce. There are 14 fault based grounds for divorce in Tennessee, and one no fault ground call irreconcilable differences. In a fault based divorce the complainant must prove the grounds alleged to the same civil standard as any other case. This is called preponderance of the evidence. This simply means does the evidence tend to show that the allegations are true based on the facts and evidence presented. This is the lowest standard of proof in a civil court.
Most divorce cases in Tennessee start with a fault based allegation and also include the no fault ground of irreconcilable differences. The vast majority of divorces that start with a fault based ground settle and the divorce is granted under the irreconcilable differences no fault ground. The reason this occurs is simple, to enter a divorce in Tennessee that is a no fault or irreconcilable differences, all the issues in the divorce must be settled before the case is presented to the judge. This means the assets and debts of the marriage must be divided, a parenting plan and child support calculation must be completed, if there are children; and any issues of spousal support (alimony) must be settled.
The document that starts the divorce process in Tennessee is called the complaint. This document will state (1) that the parties resided in Tennessee for six months prior to filing the complaint. In Tennessee, one of the parties must have resided in the county where the action is filed for this six month period; (2) that there are assets and debts of the marriage that should be equitably divided; (3) if there are children of the marriage, a statement that there is no current action pending with regard to the children and who should be awarded custody of the children: (4) if there are children of the marriage, a temporary parenting plan will also be attached to the complaint; (5) the grounds for divorce.
The complaint may also address a request for attorney fees and payment of court costs.
The party filing the complaint is called the Plaintiff.
2. Answer and Counter Complaint
The person whom the complaint is served is called the Defendant. Service in Tennessee is typically accomplished by personal service by the sheriff or a private process server. In some cases service can be made by certified mail. The Defendant has 30 days to file and serve upon the Plaintiff’s attorney an answer to the complaint and if needed a counter complaint. If a counter complaint is served upon the Plaintiff, the Plaintiff has 30 days to answer the counter complaint.
The answer addresses each statement made in the complaint by either admitting or denying the allegations made in the complaint. A counter complaint generally will state different grounds for divorce, demands regarding custody, ECT. The answer to the counter complaint is limited to admitting or denying the allegations made in the counter complaint.
3. Statutory Injunctions
Tennessee law provides mandatory statutory injunctions that apply to both the Plaintiff and the Defendant. These injunctions are designed to protect the parties’ interests in the assets of the marriage, and prevents one party from depleting assets such as bank accounts and insures that debts such as mortgage payments are made.
Upon the filing of the complaint, the injunctions are enforceable against the Plaintiff, once the Defendant is served, the injunctions are enforceable against the Defendant.
4. Parenting Class
Tennessee law requires parents of minor children in a divorce attend a parenting class. This class is designed to teach parents how to manage, and facilitate a co-parenting environment during and after the divorce.
If the parties to the divorce cannot settle all the issues related to the division of assets, debts, child custody and support, and spousal support, Tennessee law requires that these issues be referred to mediation, before they can be tried in court. Mediation is a meeting in which a neutral third party with specialized training works with the parties to arrive at a settlement.
In the event that the parties have not settled all the issues through negotiations or mediation, then a trial will be held in front of the judge. The judge will decide the issue based on the proof and testimony presented in open court.
7. Marital Dissolution Agreement
The document that sets out the division of assets and debt, etc. is called a marital dissolution agreement. It is a contract between the parties that they have agreed to, and it is entered by the court and incorporated into the final decree of divorce. Generally, the marital dissolution agreement addresses the following:
1. Division of Assets:
a. Real Estate
c. Personal Property
d. Bank Accounts
e. Business Assets
f. Retirement Accounts
2. Division of Debt:
a. Credit Cards
b. Personal Loans
c. Student Loans
e. Business Debt
3. Custody, Child Support, and Parenting Time
a. Generally, in Tennessee Custody is Joint Custody with One Parent as the Primary Residential Custodian
b. Child Support is based on Both Parties’ Income and Other Factors Such as Who Pays for Health Insurance and Child Care
c. Parenting Time (Visitation) is Usually Agreed Upon by the Parties, But the Court Will Set Parenting Time If Not Agreed Upon.
8. Final Decree
The last step in the process is the final decree. This document is the official court document that the judge signs to end the marriage. This document will incorporate the marital dissolution agreement, parenting plan, child support and spousal support documents. The divorce is entered in the records of the court and will become final 30 days after entry. Tennessee law allows either party to appeal the divorce for thirty days, even if the divorce ends under the irreconcilable differences, no fault, ground.
One final provision of Tennessee law persons seeking divorce should be aware of is the mandatory waiting period. Divorces cannot be granted in Tennessee for 60 days after filing without children, and 90 days after filing with children.