The attorneys at Kane & Crowell are professionals who handle all aspects of family law in Wilson County, Smith County, Macon County, Trousdale County, Dekalb County, Jackson County, Sumner County, Kane and Crowell are experienced divorce lawyers located in Lebanon and Mt. Juliet, Tennessee.
Usually, by the time you have met with the attorney in our office, you have already tried counseling and working on your marriage. Most parties that meet with us are ready to file. For those people that have never been divorced, there may be stress in starting the divorce process. For those who have already been divorced, there may be regret about getting divorced again.
Divorce is never easy and can be worsened by an angry or spiteful spouse. The best way to approach a divorce is to be informed and prepared. Many people who file for divorce often have no clue about the other party’s finances. It is imperative that you begin to work out what assets are in your name, your spouse’s name or in both of your names. Also, you should find out what debts you have, who they are with, and how much is owed on each debt.
During the pendency of the divorce, notify the banks, charge cards, and others that you are going through a divorce and some accounts should be closed. Do not cut off utilities, cable, or stop paying ongoing bills and do not dispose or dissipate assets. The actions you take are meant to protect the marital estate, not ruin it.
Hiring an attorney is an important factor in pre-divorce planning. You should have a good rapport with your attorney and feel he/she answers your questions as completely as possible. You should also feel that your attorney is surrounded by a good team.
Discuss with your attorney the strategy for filing for divorce fìrst. There are advantages and disadvantages to this tactic, and your attorney can explain them to you.
We do a lot of divorces and for this reason, we highly recommend “pre-nups”.
A Prenuptial Agreement is a legal document that sets out the terms of how you will divide your marital property if you ever divorce. While no one wants to think of this prior to marriage, a good prenuptial agreement can save you a substantial amount of money if you ever divorce.
While we can do either for you, both can end up taking longer and costing more than a simple divorce.
We can certainly review current Tennessee Law with you to determine if you qualify for either, but most often, divorce may be your only option or your most economical option.
There are 2 types of divorces in Tennessee.
With uncontested divorces, you will meet with us and advise how you want the divorce settled. You don’t need to pay the additional expense of a mediator.
We negotiate for you and advise what is a fair settlement under Tennessee law. We will prepare all your legal divorce paperwork, including dividing your marital assets, debts, custody, child support, and prepare any Quitclaim Deeds that are necessary. These are usually handled with a short court appearance with you and your attorney.
You and your spouse must be in agreement though (or at least reasonable) so we can help you formulate a fair settlement.
If you and your spouse cannot reach an agreement on divorcing, then you will have a contested divorce. That means, at least at first, the matter may end up in court. Sometimes, your spouse just needs one or two court appearances before they realize they should have settled.
If you don’t know where your spouse is and want a divorce, there are legal methods to achieve the divorce very quickly as well. We call these default divorces. These are usually handled without court appearance. But for about 40% of couples, trial is necessary to finalize the terms of the divorce.
A contested divorce takes more time and can cost more. However, our goal is to get you divorced and not spend all your money fighting over minor matters. The main things in divorce are your kids, dividing assets and debts and possibly alimony. Our team of lawyers has been practicing law for more than two decades. We take pride in doing a good job for all our clients.
Below you will find information for those partaking in a contested divorce. Much of what you will find below will not pertain to those of you whose cases we handle as uncontested divorces.
If you have children, by law you and your spouse must attend a parenting class or take a class online. THIS IS FOR BOTH CONTESTED AND UNCONTESTED CASES. We do not recommend that you attend together.
We will issue Discovery. Discovery will include written questions known as Interrogatories and Request For Production of Documents. Basically, these are questions we will ask your spouse about his/her allegations, his/her witnesses, his/her income, his/her debt, his/her assets. Your spouse has thirty (30) days to answer them. Once discovery is complete, we are ready for mediation.
Our courts require we attend mediation before going to trial.
Your attorney will attend mediation with you. You, your attorney, your spouse and your spouse’s attorney will meet with a mediator. A mediator is usually another attorney with mediation training. We will attempt to settle your case with the mediator.
If settlement cannot be reached with the mediator, then your matter will be prepared for trial. Waiting for trial dates can be a long process, and we will probably talk often about minor matters that come up between you and your spouse until the trial is heard.
Not only do we attend mediation with our clients but our office handles mediations for those needing it. Our Attorney Mary Alice Carfi is a mediator.
Once parenting time is determined, then we turn to the issue of child support. The number of days each parent spends with the child will be used to calculate child support. The court will look at your income and your spouse’s income. They will look at who pays health insurance, extra curricular costs, whether or not you support other children or have other children in your home.
Primary Residential Parent and Parenting Time.
The court can award sole custody or joint custody. Each Judge has their preference and their way in which they usually award visitation and custody. Disagreements over custody will put you right in the middle of a contested and expensive divorce.
A few years ago, our legislature changed the wording of “custody”, “joint custody” and “visitation”. It is now called Primary Residential Parent and Shared Parenting and Parenting Time. However, we find most everyone still refers to these matters as custody and visitation.
The legal standard in deciding who will be named Primary Residential Parent is what is in the best interest of the children.
After determining who will be the Primary Residential Parent or if this will be a Shared Parenting arrangement, the court will determine the other party’s parenting time or visitation.
When it comes to property division, it is your job to tell us about all your assets and provide us with copies evidencing ownership of these assets.
The Court will first determine if your property is separate property or marital property. Fault is not a factor in property division.
Separate property is property a spouse usually acquired before the marriage or through an inheritance or gift that the spouse kept separated from the other spouse. Unless you can prove this item somehow became marital property through transmutation or commingling, the court will allow that party to retain his or her separate property. Transmutation or commingling can occur in many ways, including putting your spouse’s name on a bank account or Deed. We will discuss this if it is an issue in your divorce.
Marital property is property you acquired during the marriage. Marital property can also include an appreciation in the value of your spouse’s separate property.
Marital property means all real and personal property acquired by either or both spouses. Sometimes, a spouse’s separate property may become marital depending on how the parties treated it during the marriage. Marital property may also include recovery in personal injury cases, workers compensation and disability actions.
Tenn. Code § 36-4-121 (c) In making equitable division of marital property, the court shall consider all relevant factors including
(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 (1) 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 homemaker, wage earner or parent, with the contribution of a parry as 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 with 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.
The court will consider these factors in determining division of debt:
During your marriage, most of your debts were probably incurred jointly. That means you are both legally responsible for the debt. The Court will determine who pays what. However, if your spouse does not pay the debt, the creditor can still sue you over the debt. You can then file a Petition for Contempt and have your spouse held in contempt for his/her failure to pay the court-ordered payments if this were to happen.
Alimony is based upon the relative needs and resources of the parties.
The State of Tennessee sets out criteria for establishing alimony in its statutes:
Alimony is the payment from one spouse to another for financial support. There are different reasons the court might order alimony and there are different types of alimony that may be awarded.
Rehabilitative Alimony is alimony for a limited duration which is intended to allow the spouse to rehabilitate themselves, by going to school, etc.
Another type of alimony is Alimony in Futuro. This is for longer marriages where one spouse should be entitled to live in the custom they lived during the marriage and may be too old or ill to return to school or work. Transitional Alimony is awarded when the court finds one spouse to be economically disadvantaged and needs assistance from the other spouse because of the divorce. Homemakers may be entitled to this type of alimony. All of these types of alimony cannot be modified by the Court after a divorce.
Alimony in solido is a lump-sum award paid over a period of time and cannot be modified. It is a type of property settlement paid over time. It is non-modifiable.
Living with someone after the divorce or remarriage may cause the alimony to stop. Death of one of the persons paying or receiving alimony will terminate alimony unless the divorce agreement says otherwise.
If we get to trial, that will mean we have done Discovery, Mediation and Preliminary Hearings, and there is no way to settle this matter.
We prepare extensively for trial. We use the worksheets and documents you have provided to me or helped me access, at your trial. Trials can be expensive because of the preparation time and also because of the trial time. Also, sometimes if we are at the trial phase, we also have experts who will testify on your behalf and they expect to be compensated for their time and testimony.
The only time fault comes into play is to determine alimony. However, judges are human and although, by law, fault does not come into play in the division of marital property, it certainly can affect the judge’s decision on all matters.
Courts will listen to the evidence presented to determine custody, division of the marital assets and debt and alimony.
When you prove something in court, you do so through witness and records. I will need a list of all your witnesses we will need for trial. I will need their names, address and phone numbers. I will need a synopsis of what information they can testify about.
We can issue subpoenas to have witnesses attend court and get off from work.
We will use subpoenaed documents to also present evidence of debts and assets.
We will also use subpoenaed documents of school records, medical records, or bank records in custody or alimony related matters.
There will be a Court Reporter present at your trial taking down everything anybody testifies to and the Judge’s ruling, in the event we need to later appeal the Judge’s ruling. A Court Reporter charges you for her time in Court and charges you if you request a copy of the Transcript of the trial after the hearing.
Usually, at trial the Plaintiff’s side will go first. You will testify and all your witnesses who support your allegations of custody and division of the marital estate will testify. Your attorney will ask them questions. Your spouse’s attorney will also ask them questions. No parties, except those who have already testified, can be in the courtroom during the trial. You can not discuss the testimony of the trial with those waiting outside to testify, until they too have testified.
Always dress appropriately for court. Tell your witnesses to do the same.
Do not wear excessive jewelry or make up.
Answer clearly and he serious when you answer your questions. Do not cover your mouth or aver your eyes.
Do not interrupt the Judge. Look at the Judge when you speak to them.
Do not react to the other witnesses testimony.
Control your temper.
Be sure you understand all questions before you answer them. On cross examination most questions can be answered yes or no or I do not know. Do not volunteer information,
The progress of the trial is determined by the judge and only the judge. It can take one morning, one day or several weeks. After hearing all the proof, the judge will make a ruling. The ruling will be written into a Final Decree of Divorce by the attorneys.
If you disagree with the ruling, you have thirty days to file an appeal of the case with the Court of Appeals. An Appeal can last between (1) year and eighteen (18) months.
If you want your maiden name restored, we can handle that in the Final Decree. A Final Decree may not end the case. After the ruling, we may need to prepare Quit Claim Deeds, Qualified Domestic Relation Orders for division of retirement polices and transfer personal property between the parties
In preparation for the trial, we will review all the major issues of your divorce.
Custody, visitation and child support are often the most important issues in any divorce where children are involved.
We charge a non-refundable retainer and bill against that retainer on contested divorces. We charge a flat rate fee on uncontested divorces.
Each case is different. Obviously, if you have no children or a short term marriage, our legal fees will be different from someone who has much more to handle.
You may return to the court after the divorce for many reasons. Those include child support increases or reductions, change of custody, increases or decreases in alimony, contempt of court for failure to abide by the Final Decree or when one party with custody wants to move away with the child.
After a divorce, it is important to change your Wills, beneficiaries on any life insurance policies, and designations on any Powers of Attorney or Trusts. We can help you do this.