The Process of Divorce

THE FIRST STEP: COMPLAINT

The first step in the divorce process is for one spouse or the other to file a "Complaint" for divorce (often called a petition for divorce). This is the "pleading" or official legal document that is filed in the courthouse that begins the divorce. The person who files for divorce first is Plaintiff; alternatively, the other spouse will be the Defendant. The complaint is required by statute (law) to disclose certain statistical information such as the date and place of your marriage, if any children were born during the marriage, etc. Along with the complaint, a summons will be filed as will a Notice of Mandatory Injunction. Those three items, once filed, must be served upon the other party so that he or she has notice that the proceedings have begun. There are certain requirements for service of process that, if not met, can result in the divorce not being granted. Generally, a Sheriff's Deputy or a private process server will serve the Complaint and Summons on the other party. On occasion, parties come pick the documents up from our office and the law allows them to sign a Waiver of Service of Process, acknowledging receipt of the lawsuit. This can also be done via mail.

Once the other spouse is served with the complaint, he or she has thirty (30) days to file an "Answer" which is that spouse's official response to the complaint for divorce. The answer will generally admit or deny the allegations set forth in the complaint and many times the other spouse will file a "Counter-complaint," which is a counter-suit that is basically the same as the original complaint except that the allegations are made against the Plaintiff.

FAULT AND THE COMPLAINT FOR DIVORCE

Generally, litigants in divorces allege in their complaint's both fault based grounds and "irreconcilable differences," a no fault ground. The fault based ground is usually "inappropriate marital conduct" which is designed to be a catch all provision for various types of behavior. Other fault based grounds include adultery, etc. It is important to remember that just because a complaint contains the allegation of inappropriate marital conduct or another fault based ground, it does not necessarily mean that fault will become a central issue in the case or that the granting of a divorce will be contested. Also note that there are legal reasons for including certain allegations and requests for relief from the Court which may or may not have a likelihood of success. For example, a parent who files for divorce may not actually be seeking custody of a child or child support from the other spouse but may request in the Complaint for Divorce that a child support payment be paid by the other parent. In almost all Complaints and Counter-complaints, attorneys include requests that the Court order every possible relief even if the requested relief is not realistic. This is done to protect the litigants because you cannot obtain relief from the court that you do not "plead" or ask for in the complaint or counter-complaint, therefore attorneys include all possible requests as a matter of standard practice.

INJUNCTION

A temporary injunction is generally issued automatically in each divorce case. This injunction is designed to maintain the status quo. It generally prevents the sale or transfer of certain assets, prevents the dissipation of marital funds and enjoins the parties from threatening physical harm against the other and from harassing each other. The injunction is effective against both parties at the same time. It is important to make sure you understand the terms of the injunction if one has been issued in your case because if the injunction is violated, the person violating the court order can be incarcerated for contempt of court.

DISCOVERY

If the parties do not immediately begin settlement negotiations, the next phase of the divorce lawsuit is called discovery. Discovery is the process by which attorneys and the parties obtain the necessary information and facts about the case including a complete picture of the parties debts and assets. Both parties may file Interrogatories, which are written questions which must be answered under oath, and Requests for Production of Documents, which requires the other party to provide certain documents listed within the request such as tax returns, bank statements, credit card statements, etc. The answers and documents must be produced within 30 days but often it takes longer than 30 days to gather the information.

The discovery process can be burdensome and very frustrating. Often times, discovery requests ask for bank statements, tax returns, etc. going back several years. The documents can be difficult to obtain and the process can be lengthy and expensive. The extent of discovery usually depends on the size and make-up of the marital estate. For example, if one of the parties owns a business which has many employees and produces significant income, the other spouse will most likely hire an expert to determine its value.

In some divorces, attorneys and the parties agree to "informal discovery." This can reduce costs significantly and generally consists of each attorney requesting certain documents from the other spouse (i.e. current brokerage statements, etc.) Many times attorneys advise against informal discovery because the documents and information produced by an opposing party are not produced under oath. When a party answers discovery under oath, that means that the person is representing to the court that the information is the truth and therefore subjects himself/herself to the criminal penalty of perjury. If one spouse lies or omits assets under oath during the discovery process, the other spouse may be able to use that lie or omission to reopen the divorce and go after a portion or all of the assets that were not revealed.

Depositions are another common form of discovery. Depositions allow your attorney to evaluate your spouse as a witness and how he or she will likely react in a courtroom if the matter proceeds to trial. Depositions provide an attorney the opportunity to ask your spouse nearly any question they want to ask. The deposition process can be expensive because in addition to attorney's fees, there are court reporter's fees for attendance and transcription of the deposition. Attorneys often spend a great deal of time preparing for a deposition and the deposition itself may take several hours. Depositions may take place early in the case or late in the process. It depends on a variety of circumstances. For example, in some cases, depositions are taken of both spouses, fact witnesses, experts, etc.

CHILDREN

See "Child Custody, Visitation & Support" for more information.

In a divorce, the court must evaluate several factors in making decisions regarding children. The court's primary consideration is what is in the "best interests of the child." One parent must be designated the Primary Residential Parent (custodial parent) and the other parent will be the Alternate Residential Parent. To settle all issues related to the children, the parties much agree on a Permanent Parenting Plan. That Plan designates a Primary Residential Parent and provides for the number of days each parent will spend with the child. It also sets forth a default schedule for the children and sets forth the child support obligation. Many items are included in the Parenting Plan including decision making, life insurance, health insurance for the children, etc.

If you have children and are going through a divorce, the court will require you to attend a parenting class which is supposed to be taken by both parents as soon as possible after the filing of the divorce complaint. This class provides insight for divorcing parents in how they can assist their children through the divorce process.

A Divorce is a negotiation.

In its simplest form, a divorce is a negotiation from start to finish. The process by which a divorce reaches a negotiated settlement varies from case to case. In a divorce without children, the parties must agree and sign a Marital Dissolution Agreement, which is the document that divides the parties' debts and assets, provides for alimony, if any, attorney's fees, etc. This document is the formal settlement agreement. If the parties have children under the age of 18 (minor children), the parties must agree upon both a Marital Dissolution Agreement and a Permanent Parenting Plan to settle the divorce. Learn more on our Children Services Page.

MEDIATION

Many divorces are settled in mediation. The mediation process is very beneficial in family law cases because it allows parties to reach creative settlements that are less likely to occur at trial. This creativity can occur because both parties maintain control of the decision making in their divorce, rather than having those decisions made by the court. The mediator's job is simply to work with all parties involved to facilitate a settlement.

See “Mediation” for more information about the process and benefits of mediation.

TRIAL

If the parties cannot reach an agreement in mediation or otherwise, there is no choice but to have a trial. A trial should always be a last resort. In addition to the outcome being uncertain, trials are both expensive and unpleasant. We often tell clients two people will benefit if the case proceeds to trial: both attorneys. Sometimes there is no choice but to go to trial due to a spouse's refusal to cooperate or agree to a reasonable settlement. However, we work as hard as we can to negotiate favorable settlements for our clients so they can avoid a trial.

Maintenance/Alimony

One question many people have when going through divorce is, "Will alimony be ordered in my divorce?" Well, the short answer is that it depends.

For instance, in most cases, alimony payments ― also known as spousal support or maintenance ― are largely determined based upon 1) the need of the recipient spouse and 2) whether the other spouse has the ability to pay. While these are certainly the two most important considerations, it is important to be aware that a court may review several other factors as well when determining the appropriate amount, duration and type of alimony to award, if it awards alimony at all. These factors include:

• The number of years the marriage lasted
• The standard of living the spouses enjoyed during the marriage
• The age as well as the mental and physical conditions of each spouse, including any physical disabilities
• The earning capacity and financial resources of each spouse, including any current or future income from retirement accounts and pensions
• The separate assets or property of each spouse, which are not subject to property division during divorce
• The education and skill of each spouse, and whether further education is necessary to achieve a reasonable earning capacity
• The contributions of each spouse to the marriage, both in terms of income/money and as a homemaker
• The degree to which it would not be feasible for a spouse to seek employment because he or she is the custodian of the couple's children
• The fault of either spouse for the divorce, but only if the court considers it appropriate
• Any relevant provisions of a prenuptial agreement, if one was executed

DIFFERENT TYPES OF ALIMONY

There are many types of alimony that a court may award during divorce proceedings, each with their own distinct features, durations and end dates.

• Rehabilitative alimony: Payments intended to help a disadvantaged spouse enjoy a similar standard of living while he or she increases his or her earning capacity, which is often done by seeking additional education. These payments often last for a set duration of time, and will typically end when the court considers the recipient spouse "rehabilitated" or when either spouse dies.
• Transitional alimony: Payments that last for a predetermined amount of time and are intended to help a disadvantaged spouse adjust to his or her new economic circumstances.
• Periodic alimony (alimony in futuro): Long-term payments intended to help a disadvantaged spouse who is unable to achieve an earning capacity that will allow him or her to maintain a similar standard of living. While these payments continue for a long time, they will terminate if the recipient spouse dies or gets remarried.
• Lump-sum alimony (alimony in solido): A total lump-sum amount calculated at the time of divorce and paid in installments over a long period of time. This type of alimony cannot be modified and even the death or remarriage of the recipient spouse does not terminate the payments.

Keep in mind, however, the information contained above pertains only to alimony laws in Tennessee. If you have questions about alimony in Mississippi, contact us today.

Collaborative Divorce

A Collaborative divorce is a voluntary dispute resolution process which provides an alternative to litigation that allows parties to resolve their disputes with dignity, respect, and the guidance of specially trained collaborative professionals.

HOW IT IS DIFFERENT FROM A TRADITIONAL LITIGATED DIVORCE

In every Collaborative case, the parties sign a Participation Agreement stating that they will not engage in litigation. Each party is represented by a Collaborative lawyer, and they may also engage the help of specially trained child specialists, mental health and financial professionals, if needed. The primary goal of a Collaborative divorce is to help parties reach an agreement together, using interest-based negotiation to create a win-win result. This team approach can save time, money, emotional distress, and relationships. If at any point the case becomes contested and litigation is initiated, the Collaborative lawyers must terminate their representation of the parties. This incentivizes parties to work together to reach a mutually acceptable settlement outside of Court, and it takes away the fear and threat of litigation that can cloud the divorce process.

CHOOSING COLLABORATIVE DIVORCE

Choosing to participate in a Collaborative Divorce may be right for you if you want to maintain and encourage mutual respect between your partner/ex-spouse; if you want to co-parent with your partner/ex-spouse and protect your children from the harm that is typically associated with litigated disputes; if you want to maintain control over the decisions and final outcome of your case rather than letting a stranger (ie. a judge) make these decisions for you.

For more information on Collaborative Law, contact the Collaboratively trained attorneys at Thomas Family Law .

Prenuptial Agreements

PRENUPTIAL AGREEMENTS

Whether you are seeking to invalidate a prenuptial agreement or, alternatively, wishing to have one enforced, we will explain your legal rights and litigation options. Let us help protect your rights so you can move forward with your life.

Couples often execute prenuptial agreements before marriage ― as well as postnuptial agreements during marriage ― in an attempt to preemptively address legal issues that may arise should they ever decide to divorce. In fact, you can use these agreements to tackle many divorce-related issues, including property division, property ownership and alimony, just to name a few.

However, it is important to remember that just because a couple has signed a prenup does not mean it is necessarily enforceable. In fact, under Tennessee law, several important conditions must first be met before your prenuptial agreement will be considered valid, including:

• The agreement must be entered into freely or voluntarily
• The agreement must be made in good faith
• The agreement must be made without the existence of duress or under influence
• The individual signing the agreement must have knowledge of the assets of the spouse who is requesting that the agreement be signed

In order to meet these requirements, the party proposing the prenuptial agreement should make every attempt to provide the contract to the other party well in advance of the marriage ― at least 30 days. Also, he or she should make an all-inclusive disclosure of his or her assets to the other party, as well as allow this other party to consult with a lawyer before signing the prenuptial agreement.

If not all of these conditions are met, the prenup may be unenforceable ― and you will need to speak with an experienced attorney at Thomas Family Law.

Domestic Violence & Orders of Protection

A charge of domestic violence is very serious and must be pursued or defended with thoughtful and competent representation. Often domestic violence actions are emergency matters that require immediate attention and a good understanding of the court system to achieve needed protection. Generally, emergency orders are entered by the court without any notice to the alleged abuser. Under Tennessee law, the order is referred to as an Order of Protection. In Mississippi law, these orders are referred to as Domestic Abuse Protection Orders. In order to obtain an Order of Protection (TN) or a Domestic Abuse Protection Order (MS), the victim must file a petition with the proper court. These are civil matters and not the same thing as the often concurrent criminal prosecution of the alleged abusive acts.

At Thomas Family Law our attorneys are versed in the letter of the law pertaining to domestic violence allegations. Whether you are petitioning or defending, you need an experienced attorney to advise you and guide you through this process. If you find yourself dealing with instances or allegations of domestic violence, we are here to help you navigate the system to obtain the maximum protection possible.

Post-divorce disputes, commonly referred to as post-judgment or post-decree matters, include enforcement of divorce judgments and orders as well as modifications of those judgments.

We are well skilled at presenting convincing evidence and making arguments to the court on all aspects of post-divorce disputes

Post-divorce disputes, commonly referred to as post-judgment or post-decree matters, include enforcement of divorce judgments and orders as well as modifications of those judgments. Enforcement actions may become necessary when a party is late playing support, creates problems with visitation, or does not fulfill a duty imposed by the court or agreed to in a settlement agreement. Modifications of child support and/or maintenance may become necessary if a party’s income changes or the needs of the other party or the children increase. When a court orders modifiable or reviewable maintenance in a Judgment for Dissolution of Marriage, at some point in the future the parties’ circumstances will be reviewed by the court to determine if additional maintenance is warranted. In other circumstances, whether authorized by a judgment or by a statute, termination of maintenance may be appropriate.

Divorced parents may also seek court intervention to resolve issues regarding their respective contributions to the college expenses of their children. These types of post-decree financial disputes often require the same level of complex financial analysis and expertise as the pre-decree phase of the case. Thomas Family Law’s Tennessee child support lawyers are well versed in these types of disputes and are effective at achieving the best results for clients in post-divorce litigation.

Other changes in circumstance that are addressed in post-judgment litigation are those situations in which a parent desires to change parenting time or parental responsibilities or to move with a child a substantial distance, otherwise known as “removal”. At times, these disputes are as complex as the original parenting disputes during the original divorce case. Post-decree parenting responsibility and parenting time modification cases can involve the appointment of a Child’s Representative and may even require a psychological evaluation of the family to determine what is in the best interests of the children.

Thomas Family Law's attorneys are experienced and effective in dealing with these very difficult and, at times, high stakes, post-divorce disputes. More important Thomas Family Law is well skilled at presenting convincing evidence and making arguments to the court on all aspects of post-divorce disputes. How well the message is delivered is of equal or greater importance than the substance of the message itself.

Post-Divorce Disputes

In Mississippi, the tort claim of alienation of affection allows a plaintiff to sue a third party for damages where the plaintiff's spouse's affections have been diverted by a responsible third party. To recover, the plaintiff must be able to prove 3 Things: (1) wrongful conduct by the third party; (2) loss of the spouse's affection; and (3) a causal connection between the conduct and the loss (of affection). It is not necessary to prove actual adultery occurred between the plaintiff's spouse and the third party; however, proof of adultery gives rise to a legal presumption of malice, which permits an award of punitive damages. Damages for alienation of affection include damages for loss of consortium, as well as, physical and emotional injuries. A plaintiff may also recover for other expenses caused by the defendant's conduct, including lost wages, medical bills, private investigator's fees, and attorney's fees. Deborah H. Bell, Bell on Mississippi Family Law § 1.09[3][a], 27 (2d ed. 2011).