Divorce & Custody
The attorneys at Kane & Crowell, PLLC are professionals who handle all aspects of Family Law. We practice Family Law in Wilson, Smith, Macon, Trousdale, Dekalb, Jackson, and Sumner Counties. Our experienced divorce lawyers are located in Lebanon and Mt. Juliet, Tennessee.
Usually, by the time you have met with an attorney in our office, you have already tried counseling and working on your marriage. Most parties who meet with us are ready to file. If you have never been divorced, you may feel stressed about starting the divorce process. If you have already been divorced, you may feel regret about getting divorced again.
We know divorce is never easy and can be worsened by an angry or spiteful spouse. However, the best way to approach a divorce is to be informed and prepared. Unfortunately, you may have no clue about your spouse’s finances, which is often the case in divorce. Therefore, it is imperative you identify 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.
What Should I do?
During the pendency of the divorce, here are some action items to consider;
- Notify banks, credit card companies, and others that you are going through a divorce. It may be necessary to close certain accounts.
- Do not cut off utilities, cable, or stop paying ongoing bills.
- Do not dispose of or dissipate assets.
Moreover, the actions you take are meant to protect your marital estate, not ruin it.
Hiring an attorney is an important factor in pre-divorce planning. It is important to develop a good rapport with your attorney and feel your questions are being answered as completely as possible. Additionally, you should feel your attorney is surrounded by a good support team.
First, discuss with your attorney the strategy for filing for divorce. There are advantages and disadvantages to using the right strategy, and your attorney can explain these to you.
We do a lot of divorces; therefore, 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 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 divorce.
Annulment & Legal Separation
While we can do either for you, both can end up taking longer and costing more than a simple divorce.
We can review current Tennessee Law with you to determine if you qualify for either option. Most often divorce may be your only option or the most economical option.
Uncontested vs Contested Divorces
There are 2 types of divorces in Tennessee.
For an uncontested divorce, 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.
Your attorney will 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, and child support. If necessary, Quitclaim Deeds can also be prepared. In short, uncontested divorces are usually handled with a short court appearance with you and your attorney.
Furthermore, if you and your spouse are at least in reasonable agreement we can help you formulate a fair settlement.
However, if you and your spouse cannot reach an agreement on divorcing, then you will have a contested divorce. Typically, this means the matter may end up in court. Oftentimes, after one or two court appearances your spouse will want to settle out of court.
Too, if you don’t know where your spouse is and want a divorce, there are legal methods to achieve the divorce quickly. We call these default divorces. These are usually handled without court appearance. However, 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.
We Can Help!
At Kane & Crowell our goal is to get you divorced and not spend all your money fighting over minor matters. The main things in a divorce are your kids, dividing assets and debts and possibly alimony. Our team of lawyers have 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 this information will not pertain to those of you whose case will be an uncontested divorce.
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. Typically, a mediator is another attorney who has obtained mediation training. We will attempt to settle your case with the mediator.
However, 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. Therefore, 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. Kane & Crowell Attorney, Mary Alice Carfi, is a mediator.
Once parenting time is determined, 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. Your income and your spouse’s income will be considered by the court. 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.
The Divorce Process
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 of your assets. You will also 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.
Moreover, separate property is property a spouse usually acquired before the marriage. Such as through an inheritance or gift the spouse kept separated from the other spouse. Unless you prove this item became marital property through transmutation or commingling, the court will allow that party to retain the property separately. 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. It 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. Recovery in personal injury cases, workers compensation and disability actions may also be considered marital property.
Tennessee law sets forth criteria to determine how marital property will be divided:
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) Age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) Tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4) Relative ability of each party for future acquisitions of capital assets and income;
(5) 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) Value of the separate property of each party;
(7) Estate of each party at the time of the marriage;
(8) Economic circumstances of each party at the time the division of property is to become effective;
(9) 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) 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:
- Whose debt it is;
- Why it was incurred;
- Who benefited from the asset purchased or debt monies;
- Who will ultimately receive the asset purchased;
- Who can afford to pay the debt;
During your marriage, most of your debts were probably incurred jointly. That means both of you are 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 it. If this were to happen, you can file a Petition for Contempt and have your spouse held in contempt for failure to pay.
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:
- Relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
- The 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;
- Duration of the marriage;
- Age and mental condition of each party;
- Physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
- The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
- Separate assets of each party, both real and personal, tangible and intangible;
- Provisions made with regard to the marital property as defined in 36-4-12 1;
- The standard of living of the parties established during the marriage;
- 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;
- Relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Different Types of Alimony
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. As well as the spouse 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. This spouse will need 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.
The Trial Process
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. At your trial, we will use the worksheets and documents provided by you. Trials can be expensive because of the preparation and trial time. Also, sometimes if we are at the trial phase, we have experts who will testify on your behalf. These experts 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 can affect the judge’s decision.
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. Subsequently, I will need their names, address and phone numbers. A synopsis of what information they can testify about will also be needed.
We can issue subpoenas to have witnesses attend court and get off from work.
Subpoenaed documents will also be used to 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 states in their testimony. The Judge’s ruling will also be documented, in the event we need to later appeal the Judge’s ruling. A Court Reporter charges you for her time in Court. You will also be charged if you request a copy of the Transcript of the Trial or 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. All witnesses may also be questioned by your spouse’s attorney. 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.
What You Should Do
- 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 eyes.
- Do not interrupt the Judge. Look at the Judge when you speak.
- Do not react to the other witnesses testimony.
- Be polite.
- Control your temper.
Be sure you understand all questions before you answer them. On cross examination most questions can be answered yes, no or I do not know. Do not volunteer information.
Always Tell The Truth
The progress of the trial is determined by 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.
Attorneys Fees, Costs, Expenses, Time.
We charge a non-refundable retainer and bill against that retainer on contested divorces. Uncontested divorces will be charged a flat rate fee.
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.
After The Divorce
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.