FAQs

Will I have to go to court at any time during my divorce?

If the divorce is uncontested and a marital dissolution agreement is filed, only the petitioning spouse must go to court for the final hearing. In that case, only a few standard questions are asked in front of the judge before the judge rules on the final decree.

Disputes regarding the division of property, child custody, spousal support or any other terms of the divorce do not automatically require court intervention. In many cases, they can be resolved through arbitration, mediation or third-party negotiation (such as an attorney).

What is a marital dissolution agreement (MDA) in a divorce?

A marital dissolution agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. These agreements usually cover property division, child custody, child plans, debt division, spousal support and any other relevant issues related to the divorce.

How much will it cost to file for divorce?

The cost of a divorce is determined by how complex the case is and whether or not the issues in the cases are contested. An uncontested divorce is naturally going to cost less than a contested divorce. In other words, the more adversarial the divorce, the more expensive the divorce will be in the long run. In addition to attorney fees, you will also have the expense of court filing fees and other expenses incurred during the divorce.

The filing fee for a divorce petition or complaint is approximately $200-$350 in most counties. These fees are collected by the government and are in addition to any service or legal fees. The filing fees are in addition to the amount charged by your attorney.

If your state laws require mediation, you and your spouse will be responsible for those costs. If there are large assets to split, a business to be valued, or property to be appraised, you may need to assistance of a divorce financial analysis. This is another expense you and your spouse will be responsible for.

Who receives custody of children in a divorce?

The court will take into consideration what they feel is in the “child’s best interest.” The court will take into consideration a number of issues when considering custody. Issues such as who the child is living with at present, the relationship with each parent, and a parent’s ability to care for and provide for the child; however, most courts are moving toward equal or shared parenting.

In an uncontested divorce, the parents must decide on the custody of any minor children. Custody is divided into physical custody (where will the children live) and legal custody (who will make important decisions regarding the children’s health, education, etc.). Both physical and legal custody can be either joint or sole. Even if one parent will have sole physical custody, the other parent still has visitation rights, if requested. If custody and visitation are not agreed upon in Tennessee, the courts will utilize a list of fifteen factors to determine the “best interests of the child.”

What are the legal requirements for divorce?

Under most state laws, a divorce (or “dissolution”) action must be filed and decided in court. Many states have a “no-fault divorce” policy. In other words, the courts are not concerned with which spouse was guilty of marital misconduct. Tennessee is not a “no-fault” state! “Fault” is a factor when calculating spousal support, but not in property division.

The following legal requirements are necessary to file for divorce in most states:

Residency

The spouse filing for divorce must have resided in the state and county for a certain period. Six months is a common state requirement, and three months is typical at the county level. Tennessee requires six months residency in order to file and have proper jurisdiction; however, in some rare circumstances Tennessee may obtain emergency jurisdiction within a shorter time period.

Waiting Period

Most states have a mandatory waiting period from the filing to the finalization of a divorce. In other words, you cannot file and finalize a divorce on the same day. The average waiting period is 6 months but can be anywhere from 0 to 12 months. After the waiting period, the divorce is finalized and both parties are free to remarry. Tennessee requires 60 days from the time the Marital Dissolution Agreement is filed when there are no children from the marriage and 90 days if there were children conceived within the marriage.

Legal Grounds

States generally recognize two legal grounds for divorce: (1.) irreconcilable differences and (2.) separation. “Irreconcilable differences” simply means there are marital difficulties that cannot be reconciled and have led to the permanent breakdown of the marriage. Tennessee recognizes several grounds for divorce such as habitual drunkenness, adultery, inappropriate marital conduct, and several others.

Whether or not you can sue for any “grounds” depends on what state you live in. Most states have adopted no-fault divorce laws meaning a divorce action can be brought against a spouse without the need for a reason. Be sure to check with a local attorney to find out what your state’s laws are concerning grounds for divorce.

On the other hand, if your spouse had cheated the negative behavior can come into play during divorce settlement negotiations. For instance, if a cheating husband/wife spends marital funds on the other woman/man the courts will take this into consideration when considering how marital assets are divided. A competent divorce attorney will be able to answer any questions you have about how your local court deals with such situations.

Jurisdictional Requirement

An action for divorce must be filed with the proper court. The appropriate court is typically in the county where either the wife or husband has resided for at least 6 months prior to filing for divorce.

What allowable deductions factored into alimony?

The following are deductions typically allowed against gross income:

  • State and federal income taxes that accurately relate to the tax status of the parties
  • Contributions to Social Security (FICA)
  • Mandatory union dues
  • Health insurance premiums
  • Necessary job related expenses

What happens if we reconcile and want to cancel the divorce?

You and your spouse can dismiss the divorce after the papers have been filed. Simply request a dismissal form from the county clerk anytime before a judgment has been entered. If no response has been filed, the petitioner alone can file the dismissal form. If a response has been filed, both spouses must sign the dismissal form.

Do I have to pay alimony in a divorce?

Spousal support, as it is now commonly called, used to be known as “alimony.” Spousal support is not mandatory in most states, but can be ordered by a judge under certain circumstances. State laws differ from state to state when it comes to the issue of spousal support. Your attorney will be able to advise you on how it is normally handled in your state. One issue that most states take into consideration is the earning ability of the wife, whether she was a stay at home mom, and how much she contributed to her husband’s career. As a general rule a wife is considered a dependent spouse if she makes less money that her husband and is substantially dependent upon him for her maintenance and support; however, this applies to either a wife or husband.

If a spouse will face hardships without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage.

However, other factors also need to be considered. For example, spousal support should most likely not be considered if:

  1. The marriage was for a short duration (less that two or three years), and
  2. Both spouses are employed and self-sufficient
  3. This does not mean the parties cannot agree on spousal support