Divorce Frequently Asked Questions

 In Tennessee, property division during a divorce is a three-step process. Property and debts owned and owed by you and your spouse must be identified, classified, and divided between the two of you. Identification is simply making a list of what is owned and owed by your spouse and you. Classification is the second step, and is the determination of whether each individual asset or debt is separate property or marital property. Generally speaking, separate property means you owned or owed it before the marriage, or were gifted or inherited the property during the marriage; Marital property and debt are those which were bought and taken on during the marriage. Often times, marital property and debts are said to make up the “marital estate”

 Division is the final and most complex step. In Tennessee, the marital estate is to be equitably divided between parties based on Tenn. Code Ann. § 36-4-121(c) which contains 13 factors to be considered. It is important to note that equitable does not mean equal. Rather equitable means fairly based on the 13 factors, which include things like the duration of your marriage, the ability of each of you to be gainfully employed and continue to earn income and assets after the divorce, the contribution of each of you to the marriage (and stay-at-home parents/homemakers are given credit for their contributions in that way), the value of your separate property, and other factors affecting the equities between the two of you. 

 Additionally, your separate property cannot be awarded to your spouse nor can your spouse’s separate property be awarded to you.

 Finally, it is important to add that property and debts can be tangible and intangible. So, everything acquired during the marriage, with the exceptions of gifts and inheritances, from the kitchen table and the family pets to credit card balances and retirement accounts will be considered in determining an equitable distribution of the marital estate. 

 This answer is provided for general informational purposes only and does not constitute formal legal advice. It should not be relied upon for use in any specific legal proceeding or matter. The outcome of any specific legal issue depends on the unique facts and circumstances, and details not discussed here can greatly impact your situation. To discuss your individual legal needs and case specifics, please consult with me directly.

 This question is answered in part by my answer to the question “How will our property and assets be divided?”. However, because assets like houses and cars have titles and oftentimes are security for loans from a bank, they can be a little trickier. 

 For example, if you or your spouse owned a house before you were married and the deed only included yours or your spouse’s name, but during the marriage both names were added to the deed, the property is likely to be considered marital property. 

 A second common example is when there is debt on either the house or the car which is owned before the marriage. Imagine that you own a house with a mortgage balance of $100,000 on the day of your marriage to your spouse. In the years after your wedding day, you pay the mortgage off. Upon a divorce, your spouse is likely entitled to some portion of the $100,000 in equity that was built during the marriage. 

 Finally, if you and your spouse have children together, whichever of you is named primary residential parent could have an effect on who receives the house as judges will often try to keep the children’s home as stable as possible by awarding the primary residential parent the marital home.

 This answer is provided for general informational purposes only and does not constitute formal legal advice. It should not be relied upon for use in any specific legal proceeding or matter. The outcome of any specific legal issue depends on the unique facts and circumstances, and details not discussed here can greatly impact your situation. To discuss your individual legal needs and case specifics, please consult with me directly.

 This question is answered in part by my answer to the question “How will our property and assets be divided?”. Retirement accounts are often referred to as deferred income accounts, meaning that although it is not an asset that you can use (without penalties, at least), it is nonetheless income you are earning. 

 Just like assets bought during the marriage, starting or adding to a retirement account during the marriage makes all or part of the account marital property. Further, if one spouse substantially contributes to the preservation and appreciation of a retirement account of the other spouse that was started before the marriage, the portion that is preserved and appreciated can be deemed marital property. In other words, if your spouse has a retirement account before your marriage which he or she continues to contribute to during the marriage and/or you help the account continue to grow, the contribution and growth during the marriage is likely marital property to be divided just like other assets. 

 It is worth noting that your contribution to the growth of the account does not have to be adding money directly to the account. It can be financial support in other areas of the marriage or being a homemaker, among other things. See Tenn. Code Ann. § 36-4-121(b)(2)(D). See also Snodgrass v. Snodgrass, 295 S.W.3d 240 (Tenn. 2009).

 This answer is provided for general informational purposes only and does not constitute formal legal advice. It should not be relied upon for use in any specific legal proceeding or matter. The outcome of any specific legal issue depends on the unique facts and circumstances, and details not discussed here can greatly impact your situation. To discuss your individual legal needs and case specifics, please consult with me directly.

 The Tennessee Department of Human Services is charged with creating the child support worksheet which is used to determine a parent’s child support obligation. At its most basic level, the worksheet is an excel spreadsheet that takes both parents’ monthly incomes and the number of days each child will spend with each parent, and calculates the obligation of one parent. 

 Other factors can be included into the worksheet like health insurance premiums, work-related childcare, child support obligations of other children (whether such children live in the parent’s home a majority of the time or not) and recurring uninsured medical expenses. 

 Usually, the obligation amount produced by the worksheet is what courts will order. However, there can be deviations in special and extraordinary circumstances, such as if one parent pays the other parent’s rent or mortgage. 

 This answer is provided for general informational purposes only and does not constitute formal legal advice. It should not be relied upon for use in any specific legal proceeding or matter. The outcome of any specific legal issue depends on the unique facts and circumstances, and details not discussed here can greatly impact your situation. To discuss your individual legal needs and case specifics, please consult with me directly.

 Child custody can be determined in two ways. The first and easiest way is obviously for you and your child/children’s other parent to come to an agreement. The second way is for a judge to decide after a hearing. 

 If you and your child’s other parent are able to come to an agreement, a Permanent Parenting Plan can be drafted, entered, and be court ordered. There are several details that you might not think about that will need to go into a plan. A Tennessee Permanent Parenting Plan is based on what is found here: https://www.tncourts.gov/sites/default/files/docs/final_parenting_plan_-_2021.01.04.pdf

  If you are unable to come to an agreement between each other, a judge will determine custody after a hearing. During a child custody hearing, a judge is obligated by statute to determine the child’s best interests and use such as the standard to determine and allocate parenting responsibilities. Best interests are determined by using the non-exhaustive list of factors found at Tenn. Code Ann. § 36-6-106(a)while trying to maximize each parent’s participation in the child’s life. A few examples of factors on the list are: which parent has performed the majority of the parenting responsibilities relating to the daily needs of the child; what is each parent’s work schedule; what are the physical, emotional, mental, and moral characteristics of each parent; what is the child’s preference, if more than 12 years old; has either parent been abusive to the child, the other parent, or anyone else. Although judges often address each factor and declare that each favors one parent over the other or that it is neutral or inapplicable, it is not as simple as a tally calculator and whoever has the most factors favoring them wins. Judges will weigh all of the factors to come up with a parenting plan. 

 This answer is provided for general informational purposes only and does not constitute formal legal advice. It should not be relied upon for use in any specific legal proceeding or matter. The outcome of any specific legal issue depends on the unique facts and circumstances, and details not discussed here can greatly impact your situation. To discuss your individual legal needs and case specifics, please consult with me directly.

Perhaps this question is best answered by beginning with what could potentially need to be addressed in a divorce. Marital property and debt will have to be equitably divided. Child custody and visitation would have to be determined. Spousal and child support need to be calculated. The majority of these issues and the processes for doing so are addressed in other FAQs on my website. 

 Logistically, in Tennessee, there is a mandatory “cool down” period of 60 days if you and your spouse have no minor children together, or 90 days if you do. In other words, from the date of filing for divorce, you must wait 60 or 90 days before you can officially be declared divorced, regardless of whether your divorce is contested or uncontested.

 Now to answer the question, a contested divorce is one in which you and your spouse cannot agree on how to address the issues of property division, child custody, or support. In this case, a hearing would need to be held so that a judge could address the issues. Additionally, before submitting the issues to a judge at a hearing, mediation could be beneficial in getting the issues resolved, which would then result in an uncontested divorce. If your issues are complex, a judge will often take them under advisement and issue a written ruling granting a divorce some time, like 30 days or more, after the hearing. 

 An uncontested divorce, as I just alluded to, is one where you and your spouse agree to the terms of your divorce, such as property division, child custody, and support. Your agreement would be incorporated into legal documents, such as a Marital Dissolution Agreement (“MDA”) and a Permanent Parenting Plan. An MDA is contractual in nature and binding once signed by both parties even before the cool down period is over. 

 Finally, in my experience many divorces that begin contested end up uncontested as the parties wind up settling. So, even if your divorce has been pending for some time, you and your spouse can come to an agreement on terms and I can incorporate that agreement into the appropriate legal document(s). 

 This answer is provided for general informational purposes only and does not constitute formal legal advice. It should not be relied upon for use in any specific legal proceeding or matter. The outcome of any specific legal issue depends on the unique facts and circumstances, and details not discussed here can greatly impact your situation. To discuss your individual legal needs and case specifics, please consult with me directly.