Prenuptial Agreements:
Prenuptial Agreements in Tennessee are generally written agreements made prior to the wedding vows that the husband and wife enter into with full knowledge of all assets and debts currently in existence. These are valid and binding contracts that will be upheld by the Court's so long as complete and truthful disclosure has been given to each party. These are typically used when one party has considerably more assets that the other, or, stands to gain considerably more assets that the other in the future.

Domestic Violence:
Divorce cases that involve issues of domestic violence require highly experienced attorney's in the field of domestic violence law. These cases often start after an episode of physical violence in the home resulting in one party applying for an Ex Parte Order of Protection at the local courthouse. An Order of Protection may later be merged into the divorce court. An Order of Protection prevents the aggressor from coming about the victim(s). Order's of Protection may also involve issues of child support, spousal support and which spouse lives in the marital residence.

Grounds for Divorce:
In Tennessee, there are several grounds for divorce. Irreconcilable Differences is the only no fault ground for divorce. The fault based grounds are Impotency, Prior Existing Marriage, Adultery, Desertion, Infamy, Felony Conviction with Confinement, Attempt on Life of Spouse, Refusal to follow Spouse to Tennessee, Pregnancy by another at the time of Marriage, Habitual Drunkeness or Drug Abuse, Inappropriate Marital Conduct, Indignities and Abandonment and Non-Support.

Divorce Procedure:
For Contested Divorces, one party files a Complaint for Divorce. The non-filing party has 30 days to file and Answer. If no Answer is filed within 30 days, the original party may move (ask) the Court to grant him/her what was requested in the Complaint based on the non-filing party's failure to Answer within the time allowed by law. Court's routinely grant such a request. If, however, an Answer was filed, then the divorce proceeds like any other civil case. There will be a period of time for discovery and settlement negotiations. If the case cannot be settled, then the matter may be set for trial, either by Judge or by Jury. Tennessee Rules of Civil Procedure govern the case along with Tennessee Rules of Evidence.

For an Uncontested Divorce, it is most common that one party files for a divorce based on Irreconcilable Differences, while both parties sign a Marital Dissolution Agreement and, when needed, a Permanent Parenting Plan. The parties will also sign a Judgment of Divorce and appear before the Court for approval. In some circumstances, the party's sign and file Affidavit's requesting the Court to grant the divorce in their absence. In both Contested and Uncontested Divorces, the divorce Complaint must be on file for 60 day in cases without children and 90 days in cases with children before the Court can grant a divorce.

Divorce Timeline:
The timeline for a divorce in Tennessee varies depending on whether the divorce involves children. If there are no minor children, Tennessee requires that the divorce Complaint be on file for at least 60 days before the Court can grant the divorce. If there are minor children, then Tennessee requires that the divorce Complaint be on file for at least 90 days before the Court can grant the divorce. If the case is contested, you can expect that the timeline will be much longer, in some cases, more than a year.

Venue and Jurisdiction:
Venue refers to the physical location of the Court that will hear your case. For example, if the parties lived in Davidson County prior to the separation or filing, then Davidson County would be the proper site for filing the divorce. However, venue can be waived. For example, if the party's to a divorce wanted to be divorced in Rutherford County instead of Davidson County, they could simply waive venue and file the Complaint in Rutherford County. It should be noted, however, once venue is waived and an action is filed, any future modification of the divorce decree must be filed in that county. In the previous example, if the party's filed in Rutherford instead of Davidson, then any future modification must be filed in Rutherford.

Jurisdiction refers both to the Court having jurisdiction and the state having jurisdiction. In Tennessee, the proper courts are typically the Circuit and Chancery courts in each county. However, there are certtain other courts who also may have jurisdiction to hear a divorce case. As for the state jurisdiction question, this refers to whether the party's have resided in Tennessee for longer than 6 months, or whether the divorce must be filed in some other state.

Marital Dissolution Agreements:
Marital Dissolution Agreements (MDA's) are written contracts specifying the agreements of the parties in an effort to settle some or all of their property issues, spousal support issues, financial and retirement issues and tx issues. These contracts are typically drafted in anticipation of a the Court granting a divorce, but are not normally signed until the divorce Complaint is filed, or sometime thereafter. If the grounds for divorce is Irreconcilable Differences, then the parties must enter into a written MDA pursuant to T.C.A. Section 36-4-103. The MDA will be incorporated or adopted in the decree of divorce and will be enforceable in the future under the Court's powers to enforce its judgments. If there is a dispute prior to the MDA being adopted by a final decree, then the MDA can be enforced under contract law.

Permanent Parenting Plans:
In 2001, Tennessee required a Permanent Parenting Plan (PPP) to be filed in every new divorce involving children. A PPP is simply a document that sets forth the names of the parents, the names and dates of birth of the minor children, the parent who is named the primary residential parent, the number of days each child spends with each parent, the residential sharing time schedule (including holidays, school breaks and summer), decision making authority, transportation arrangements, special provisions (i.e. supervision, alcohol, etc.), health insurance requirements, life insurance requirements, child support and how to handle future disputes.
Additionally, at the time a contested divorce is filed, the law requires the filing party to provide a Temporary Parenting Plan that proposes how all those items previously mentioned should be handled by the Court. Upon filing an Aswer, the Defendant also is required to provide his or her own Temporary Parenting Plan. The Court will later decide which to approve, or create a new PPP.

To view a blank form click on Permanent Parenting Plan to view one.

Parent Education Class:
A Parent Education Class, sometimes call Transparenting, is a required class for all parents going through a divorce in Tennessee. This class is a minimum of 4 hours in length. This class is intended to educate the parents on how to protect and enhance the minor children's emotional development through the divorce process. The class is also intended to educte the parents on the divorce process to help them better understand what is happening. The classes should also include education on issues such as the alternative dispute resolution process, counseling, and domestic violence issues. This class is intended to be purely educational in nature and in no way intended to be individual therapy. Most classes allow both parents to attend the same session, though this not a requirement. Upon completion of the class, each participant will be given a certificate of completion for filing with the Court. Parents in divorce have until 60 days after the divorce has been granted to file a certificate with the Court. If a parent fails to file a certificate, the Court may punish that parent through the Contempt powers of the Court.

For more information and to take an online Parent Education Class, go to www.tnparentingclass.com.

Child Custody in Divorce:
In divorce cases, there are many factors for a Court to consider in determining the best possible residential sharing time of the minor child(ren). Pursuant to T.C.A. Section 36-6-404(b), there are 16 factors that Courts are required to consider in determining the child's residential schedule. these are:

1. The parent's ability to instruct, inspire and encourage the child to live a life of service and to compete successfully in society;

2. Tha nature of the child's relationship with the parent;

3. The willingness and the ability of the parent to encourage a close relationship of the child with the other parent;

4. Willful refusal of the parent to attend a court-ordered education seminar;

5. The willingness of each parent to provide the child with food, clothing, medical care, education and other necessary care;

6. The degree to which the parent has been the primary caregiver of the child, defined as the parent that has taken the greater responsibility for performing parental responsibilities;

7. The love and emotional ties betweent the parent and the child;

8. The emotional needs and development of the child;

9. The character and the physical and emotional fitness of each parent as they relate to his or her ability to parent, or to the welfare of the child;

10. The child's interaction and interrelationships with siblings and significant other adults, as well as the child's involvement with his or her physical surroundings, school or other significant activities;

11. The importance of continuity in the child's life and the length of time that the child has lived in a stable, satisfactory environment;

12. Evidence of physical or emotional abuse to the child, or to the other parent or any other person;

13. The character and behavior of any other person who resides in or frequents the home of a parent and such person's interaction with the child;

14. The reasonable preference of teh child, if 12 years of age or older. The court may hear the preference of a younger child. The preferences of older children should normally be given greater weight than those of younger children;

15. Each parent's employment schedule. The court may make accommodations consistent with those schedules;

16. Such other factor deemed relevant by the court.

Under the catch all factor listed in 16 above, there are too many possibilities to list in this setting. It is best to discuss your particular circumstances with a competent attorney. The Reeves Law Firm can help. Contact us today for a free consultation regarding your custody rights in divorce.

Child Support:
Child support in Tennessee is determined under the Shared Income Model. The reason for this is that both parent's have a co-equal duty of support, based on their means and ability. This approach determines the gross income of each parent and then applies the percentage responsibility for each parent to support the children. For example, if Mother makes $5,000 gross monthly and Father makes $5,000.00 gross monthly, then each parent is obligated to provide for the support of the minor child(ren) on a 50/50 basis. Additionally, the number of days each parent spends with each child is determined, along with health insurance for the child(ren), day care costs for each child(ren), other recurring medical expenses and any other children supported by either parent either in their home or for which they pay child support. Once all of these items are determined, there is a formula used to detemine the amount of child support. The state has developed a worksheet to help in making all necessary calculations. The online worksheet can be found here.

Deviations from the amount required in the Income Shares Worksheet are sometimes allowed, but are disfavored.

Alimony:
There are several different types of alimony in Tennessee. These are:

Alimony in solido, or lump sum alimony, is typically a definite amount paid to the disadvantaged spouse based on the unique circumstances of the parties.

Alimony in futuro is typically an awardof alimony based on periodic payments, perhaps monthly or yearly, that would end upon remarriage of the disadvantaged spouse or death of obligated spouse.

Statutory Rehabilitative Alimony pursuant to T.C.A. Section 36-5-121(e)(1) is the preferred method of awarding alimony in Tennessee. This method is intended to rehabilitate the disadvantaged spouse in a relatively short period of time to allow a period of time to obtain education and/or training so that that person's ability to earn an income has been increased or rehabilitated.

Transitional Alimony was establsihed by the state legislature in 2003. This type of alimony is awarded when rehabilitative alimony is not necessary, but the economically disadvantages spouse needs assistance adjusting to the economic consequences of divorce.

In determining whether to award alimony in a given case, Court's are required to consider certain factors pursuant to T.C.A. Section 36-5-121(i)(1-12). These factors are:

1. Relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;

2. Relative education and training of each party,the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earning capacity to a reasonable level;

3. Duration of the marriage;

4. Age and mental condition of each party;

5. Physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;

6. Extent to which it would be undesireable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;

7. Separate assets of each party, both real and personal, tangible and intangible;

8. Provisions made with regard to the marital property;

9. Standard of living of the parties established during the marriage;

10. Extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;

11. Relative fault of the parties, in the court's discretion; and

12. Other factors, including tax consequences, as necessary to consider the equities between the parties.

Of course, there are many things to be considered when presenting an alimony case to the Court and only a competent attorney experienced in this area can fully advise you on this issue.

Division of Assets:
In determining which party will be awarded certain assets, the Court must first determine which assets are considered separate property and which assets are considered marital property. Separate property consists of any assets owned by a party prior to the marriage, or property acquired during the marriage in exchange for separate property, income and appreciation of property owned prior to the marriage, property acquired at any time by gift, bequest, devise or descent, and pain and suffering awards or other like compensation. Once an asset is deemed separate property by the Court, it s no longer considered in the division of assets. Marital property is generally all other property acquired during the marriage including income and appreciation of separate property if the Court finds that each party substantially contributed to its preservations and appreciation. Also, if the Court finds that any separate property has been commingled or transmuted, then separate proeprty can become marital property for purposes of division of marital property. Commingled simply means that an asset has inextricably mingled with marital property or separate property of the other spouse. For example, assume husband inherited $100,000.00 during the marriage. At the moment of inheritance, this would be separate property. However, if husband places this money into an existing joint account used by the party's, he has commingled the funds such that it is now impossible to tell the genesis of one dollar from the next in that account. The doctrine of transmutation occurs when the parties intend to use separate property as marital property. For example, assume wife brings into the marriage her own house that she owned for years before the marraige. During the marriage, however, the couple sales the house and uses the equity realized to jointly purchase a marital residence. Wife looses her sole interest in the equity realized from the sale of her house.

Once the Court has determined marital assets, then it must divide them equitably. Notice this is not equally. Equitably is determined by applying certain statutory factors pursuant to T.C.A. Section 36-4-121(c), as follows:

1. The duration of the marriage;

2. The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;

3. The tangible or intangible contribution by one party to the education, training or increased earning power of the other party;

4. The relative ability of each party for future acquisitions of capital assets and income;

5. The contribution of each party to the acquisition, preservation, appreciation, depreciation, or dissipation of the marital or separate property, including the contribution of a party to the marriage as a homemaker, wage earner or parent, with the contribution of a party as a homemaker or wage earner to be given the same weight if each party has fulfilled its role;

6. The value of the separate property of each party:

7. The estate of each party at the time of the marriage;

8. The economic circumstances of each party at the time the division of property is to become effective;

9. The tax consequences to each party, costs associated witht the reasonably foreseeable sale of the asset and other reasonably foreseeable expenses associated with the asset;

10. The amount of social security benefits available to each spouse; and

11. Such other factors as are necessary to consider the equities between the parties.

Of course, once the marital property has been determined, the Court must arrive at a valuation of each asset. In some cases, the value will be relatively easy to identify, yet other assets may require testimony from experts in order to arrive at a value. Marital fault is not allowed to be considered as a factor in determining how to divide assets or debts.

Division of Debts:
Tennessee law provides that marital debts may be divided between the parties in the same manner as marital property as discussed in the section above. The Court must first determine what debts are marital rather than separate. When practical, debts should be assigned to the same party who received the corresponding asset. For example, if Husband was awarded a motorcycle that was still owed on, then Husband should pay that debt.

Pendente Lite Matters:
Pendent Lite matters are simply means pending the lawsuit. In simple terms, a pendente lite motion requests the Court to grant some relief that only exists until the trial can be had and a full Order takes its place. Most often, pendente lite motions request the Court to set temporary child support or spousal support. In some cases, the motion may request that the Court determine certain asset issues (i.e. who lives in the marital residence pending the divorce) and debt issues (i.e. who pays what debt). These issues can be raised in the initial Complaint or by later motion before the trial has occurred.

Attorney Fees:
As in other types of cases and other states, Court's have no authority to award attorney fees to the prevailing party absent statutory authority. This means that unless the state has passed a law allowing attorney fees to be awarded in certain types of cases, the Court simply cannot award them to either party. In Tennessee, there are 5 types of family law cases wherein the state has specifically allowed attorney fees to be awarded. These are:

1. Pendente lite support;

2. Alimony;

3. Enforcement of any decree of child support or the adjudication of custody at any time;

4. Parental relocation matters; and

5. Uniform Child Custody Jurisdiction and Enforcement Act (interstate cases).

Tax issues:
There are many tax issues that may be triggered in a divorce. The transfer of property, sale of marital residence, payment or receipt of alimony, dependencey exemptions, child tax credits, filing status and attorney fees are some of the major tax issues that may come up. To understand your specific situtation, talk with an attorney or CPA.