What is a divorce?
Divorce starts with marriage. Marriage can be two things: first, it can be a bonding between two persons and the covenant; second, it’s always a contract between two persons and the State. An attorney licensed by the State, only deals with the two persons and their relationship with the State. By virtue of being married, certain rights and obligations occur that must be undone in the divorce. As a married couple, these two persons can own real estate, personal property, cars, bank accounts, debts, and other things together. They can have rights in pension plans, investment accounts, 401(k)s, and intellectual property together. A divorce is the process of undoing all these connections, dividing what I refer to as the “marital estate” in an “equitable” manner. In addition, if the couple has children, then the issues of parenting and child support must be addressed. Finally, in some cases, the issue of alimony must be considered.
What is an “uncontested divorce?"
An uncontested divorce, known in the law as “irreconcilable differences,” simply means that the parties have agreed on all matters relating to the division of their assets and debts, and all matters relating to their children. They must complete a document called a Marital Dissolution Agreement, which divides their assets and debts, and, if there are children, a Permanent Parenting Plan. These are submitted to the court for the judge’s signature and no appearance in court is necessary.
He/she committed adultery. Does that mean that he/she gets nothing?
Adultery is one of several “grounds,” or fault-based reasons for getting a divorce. Others include abandonment, bigamy, impotence, habitual drunkenness and inappropriate marital conduct. They do not affect the division of the marital estate or the parenting plan. The only possible effect of having grounds is on alimony, and its effect there is likely to be minimal.
What is “no fault divorce?
In “no fault divorce” neither party is declared to be at fault for the failure of the marriage. Failure could include adultery, bigamy, abandonment, etc. These divorces are granted on the basis of “irreconcilable differences.” This type of divorce usually takes three to four months to complete and is relatively inexpensive.
How long does it take to get a divorce?
The statutory waiting periods for a divorce are 60 days with no children and 90 days with children. How long any particular divorce actually takes is unpredictable. A favorite saying is that, on a good day, about 30% of getting a divorce is legal issues and 70% is personalities. On a bad day, the personalities can dominate time. And sometimes the personality is not the other spouse. Sometimes it can be the other attorney or even a client. Trust and communication are important issues in a divorce. If the parties can still talk with each other with respect even during this difficult time, then the process will go much faster and with less lasting damage to the parties and to their children. Obviously, that doesn’t always happen. Sometimes, bitterness can linger and the parties go back to court over and over which adds to the emotional baggage and cost.
Can I leave my house? Will I be accused of “abandonment"?
The ground of abandonment is stated in the law as, “The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide.” Therefore, if the spouse has a good reason to leave – if there is a danger in remaining, for example – that is not abandonment. If the spouse leaves for no good reason – to be with a boyfriend or girlfriend, for example, and refuses to pay his or her share of household bills, that is abandonment. But, again, it makes no difference in the division of the marital estate and has no direct effect on the outcome of parenting.
How is visitation figured out? He says he’s going to get full custody of the children. Is that possible?
This can be a very complex matter. To start, the word “custody,” which implies ownership of the children, is no longer used in the laws relating to parenting. Instead, one parent is called the Primary Responsible Parent and the other is referred to as the Alternate Responsible Parent. In every case involving children, a Parenting Plan is completed, which lays out all aspects of visitation, including routine day to day visitation, holidays, Summer, Christmas, and Spring and Fall breaks. It also specifies how transportation is to be handled. It states whether the Mother or Father, or both parents, will make major decisions regarding the children. It discusses child support (see below), which parent will provide health insurance, who gets the income tax exemption, and several other things. All these matters must be decided, either by the parties or by a judge. Unless a parent is clearly dangerous to the children, he or she will be allowed to see them.
What are the options for parenting?
A lot of time is spent on this aspect of a divorce and it can, obviously, be a difficult subject for the parties to agree on. The options are almost endless and there are many factors to be considered. To truly answer this question, I need to know the specifics of your situation.
How is child support determined?
Child support is mandatory. One parent can’t refuse to pay it, and one parent can’t choose not to accept it. The amount can’t be decided by the parents; the amount is computed by putting into a spreadsheet called a Child Support Worksheet the gross monthly incomes of the parents, the number of days of visitation each parent gets, the amount, if any, paid by one parent for daycare, the amount, if any, paid by one parent for the children’s health insurance, and the amount, if any, of child support paid for other children. These numbers are put into the Worksheet and the number that one parent will pay to the other is computed. A judge can agree to deviate from this number for good reason, such as one parent is paying a significant amount for transporting the children or for school costs.
When might alimony be necessary?
Alimony is likely only in longer term marriages where there is a significant difference in income between the spouses. There are several factors in determining whether alimony will be paid and the amount that will be paid, but the courts have stated clearly and repeatedly that the two overriding factors are one spouse’s ability to pay and the other spouse’s need. Consider a case where the couple had been married for over 20 years and the husband made about $70,000 a year and the wife made about $11,000 a year. The husband, by his own admission, made about $1,800 a month more than he could spend, so the judge awarded the wife that amount in alimony. It had little to do with one of the spouse’s fault, but nearly everything with the wife’s need.
How is our property going to be divided?
Tennessee law calls for the marital estate to be divided "equitably," which means fairly, not equally. There is no formula for fairness. The longer a couple is married, and the more they have, either in assets or debts, or both, the more complicated and intertwined their marital estate is and the more difficult it will be to figure out how to undo it. Hopefully, they can figure it out themselves, or maybe with the help of their attorneys, and maybe with the additional help of a third-party neutral (see Collaborative Divorce). If they can't figure it out for themselves, a judge will do it for them based on the testimony he or she hears. Sometimes this is necessary, but, fortunately, this is infrequent. Most of the time, the parties can do this themselves, though sometimes it can take a long time, cost a lot of money and be emotionally draining.
What happens if we own a house?
The factors to consider are the equity in the home, the amount owed on the mortgage, the monthly payments, the incomes of each of the parties, the desire of one or the other of the parties to keep the house, and that person’s ability to refinance the mortgage into their name. Every situation is different and will require some significant discussion.
What are my options in proceeding with a divorce or collaborative divorce?
Call the offices of Ken Phillips Family Law. Briefly explain the details of your situation or set up an appointment for a more in-depth conversation with Ken Phillips. Our number is 615-461-7174