FAQ

How long does it take to get divorced in Tennessee?

In Tennessee, a complaint for divorce must be on file with the clerk of the court at least ninety (90) days when there are minor children, and at least sixty (60) days when there are no minor children. Every case tends to be unique, and will depend on the issues to be addressed, the county where the case is pending, and other relevant factors as to how long it will take to finalize. You should review the facts of your case with an attorney to confirm the above timelines.

What if I don’t know where my spouse or the other party is, can I still pursue a court case?

Yes. We will have to attempt to provide them notice that we are pursuing court action, and can do so by publication in a newspaper where he or she was last known to live.

I heard Tennessee is a “no fault” state. Is that true?

No. Tennessee is a fault state and does consider marital fault in the consideration of alimony and the party to whom the divorce is awarded.

Is Tennessee a “community property” state?

No. Tennessee does distinguish between marital property and separate property.

What is separate property?

Generally, separate property is any asset owned before the marriage, or received during the marriage by gift or inheritance by one spouse. However, there are ways separate property can become marital property, so the facts of every case should be reviewed with an attorney.

What is marital property?

Generally, it is any asset acquired or any increase in value of an asset occurring during the marriage through marital efforts of either spouse. Again, the facts of every case should be reviewed with an attorney.

I don’t know what my spouse or my child’s other parent is earning. 

There are ways to gather such information, such as by subpoena or what is called written discovery. There is also an imputed amount Tennessee will use if your spouse or the other parent has absconded and refuses to provide financial support to your children or valid information regarding his or her earnings.

I have never worked and now my spouse says I have to get a job, is this true?

Possibly. Every case is unique and there are legitimate reasons, such as health related issues of you or a minor child, which may alter whether a judge will expect you to get a job. If you are able to work, judges do expect you to obtain some type of gainful employment, but will consider things such as your work history, age, health, and education level. Further, there is a list of factors a judge will consider to possibly award you alimony. If you feel you may be a candidate for alimony, please review the facts of your case with attorney Kay Church.

What can I do as a client to help you with my case?

It is always helpful to keep a list of all events you believe pertinent to your case in one place. Include with it back up photographs, text messages, and emails, as well as the specific details, dates and witnesses of each event. As the case develops, please add to it when information is fresh on your mind so all information is in one location. If your case is set for a contested trial, periodically review this in the weeks leading up to deposition and trial so you may refresh your memory.

Should I move out of the house/apartment before the divorce is final?

In a divorce setting, it is generally not a good idea to move out of the marital residence. There is a judicial preference to pay marital expenses first before apartments or temporary residence expenses are paid. Coupled with mounting legal expenses, very few people can afford to live outside the marital residence while the divorce is pending. There are certain grounds under which your spouse could be removed. It is very important that you review the facts of your case with an attorney prior to taking any action whatsoever in furtherance of moving out, such as signing a lease or rental agreement.

How often should I let my spouse or the other parent see the children while the divorce or custody case is pending?

In essentially every case, the parties voluntarily engaged in the activity that resulted in a child. Therefore, most parties are hard pressed to completely deny the other parent access to the child or children. Unreasonable denials can also be used against you at trial. However, it is always advisable to review any potential parenting schedule with a licensed attorney before you take any action whatsoever towards a voluntary parenting schedule. If a judge orders a parenting schedule, however, you must follow the orders of a judge even if you disagree.

I feel my spouse or the other parent is abusive. What can I do?

Tennessee law provides for avenues to keep victims of abuse and their children safe, such as Petitions for Orders of Protection. However, it will be very important to distinguish between disagreements, worry, and actual abuse with very detailed examples. Your testimony is a form of proof a judge will consider, even if you do not have recordings or photographs, although recordings and photographs legally obtained will usually help your case.

I feel I should be named the primary residential parent. Am I correct?

In Tennessee, there is a list of factors judges are required to weigh in deciding both child custody and parenting schedules. Tennessee Statutes also require judges to maximize both parents’ time with the children. Generally, judges look for who is the primary caretaker, such as who actually gets the child or children dressed; who prepares meals; who helps with homework, bathing, grooming; which parent volunteers in the child or children’s classroom; which parent takes the child or children to doctor/dentist appointment; which parent takes the child or children to extracurricular activities, and the like. Delegating these tasks to a third party such as a new spouse, grandparent, or other relative generally does not give you credit for these tasks. Paying for extra things for the children also does not generally equate to actually doing them for the child. Judges also strongly consider whether you are fostering a relationship between your children and the other parent. If you are not, this will weigh against you. It is very important to review the facts of your case with an attorney, as every case is unique.

Should I let the children know what is going on or how I feel about their other parent?

Be aware that children are sponges and pick up quickly on what is going on. Therefore, badmouthing their other parent to your friend on the telephone while your children are playing at the other side of the room is not wise. Likewise, comments such as, “we can’t afford that because your [other parent] is not giving us enough money each month/demanding I give them too much money each month,” should be avoided. Please keep in mind you never want to make your children feel guilty for loving their other parent. The ripple effect of this behavior, while it may give you a satisfying feeling at the time, has been shown to effect children into their adulthood and their own marital and parental relationships. Further, if you are coaching your children to say things in your favor, it usually will come out in litigation and do more harm to your case than good, and possibly cause you to waste a great deal of time and money.

Is it okay to start dating while the divorce is ongoing?

In a divorce, do not begin any type of romantic relationship, regardless of whether your spouse has. Friendships can easily appear as a romantic relationship for both opposite and same sex relationships. I have even seen cases whereby a spouse was held to have engaged in the fault-based ground of “inappropriate marital conduct” by having too close a relationship with the spouse’s pastor. “Hanging out” with a group of friends at their home and spending the night to avoid driving after consuming alcohol can appear to be an affair. Likewise, having people over at your home and someone spending the night to avoid driving after consuming alcohol can also appear to be an affair. During the litigation process, you will likely be asked under oath, pursuant to penalty of perjury, whether you have ever had any intimate contact with anyone other than your spouse, including kissing, holding hands, touching of the genitals, etc. Therefore, do not start dating until a judge declares you divorced.

Is it okay to have my new boyfriend/girlfriend around the children pending divorce?

NEVER expose your children to anyone with whom you are having a romantic relationship until your divorce is final. This includes having the person come to your home after the children have gone to bed. If you are already in a relationship, stop it now, including but not limited to telephone calls or emails, regardless of whether you are actually engaging in intercourse. Don’t do anything you want to hide, period.

What if I am already in a relationship with someone new, can I continue the new relationship while the divorce is pending?

No matter how much you think your spouse doesn’t want to be with you, extra marital relationships will inflame his or her sensitivities and make the divorce process much longer and more costly than it has to be. A $2,500 case can easily turn into a $25,000 case. Your spouse will be entitled to find out every detail of your relationship and subpoena your significant other into a deposition, into court or join them as a third party. If you are already in a relationship, stop it now regardless of whether you are actually engaging in intercourse.

What if I am only talking to someone on the phone or emailing them?

Do not call, text message, or email someone of the opposite or same sex with whom it could appear you are in a romantic relationship. During the litigation process, you will very likely be asked under oath, pursuant to penalty of perjury, to list every telephone number and email address you have ever maintained or used during the marriage. Changing your email address and/or telephone number will not prevent discovery of these acts. Subpoenas to the telephone/cell phone company or computer forensic searches will likely reveal what you think you have hidden or deleted. While “Pay as you go” cellular telephones may not keep records of calls made and received, you will very likely be asked under oath to list all cellular telephones you have used and every person you have called. In short, don’t try to outsmart your spouse’s attorney and don’t do anything you want to hide, period.

My spouse is sending me harassing text messages that I believe help my case. What should I do?

Take clear photographs or screen shots of text message screens and identifying information (i.e. your spouse’s telephone number on the screen, time/date stamp, etc.) if you feel the text message would be helpful to your case. The actual content of a text message is often not stored by the cellular telephone company and is often lost forever once the message is deleted from your cell phone. While the company’s records will often show incoming and outgoing texts, they rarely include the content of the messages. Emails tend to be the best method to capture written correspondence.

Can I record conversations I have with my spouse without their knowledge?

Audio recording of a conversation is legal in the State of Tennessee, provided you have one party to the conversation’s consent to record it. For example, you have your own consent to record you and your spouse talking. But you cannot leave a hidden recorder on and walk out the room hoping to catch your spouse saying something to someone else.

Can I put a GPS tracking device on my spouse’s vehicle?

It is a crime in the State of Tennessee to place a GPS tracking device on a vehicle without the approval of all owners of the vehicle. However, while it is illegal, keep in mind your spouse could have done this to your vehicle.

How should I handle social networking (i.e., Facebook, Twitter, Instagram) pending divorce?

Be leery of what you post on a social networking site or what someone posts about you. Example, posting your status as “looking for a romantic relationship” before your divorce is final is not wise. Nor is it wise for your significant other to post pictures of the two of you or that he or she is in a relationship. Again, stop all extra martial relationships, regardless of whether you are actually engaging in intercourse.

I posted things to social networking already, can I take it down?

You may remove postings, photographs, or even deactivate your account. However, it could be considered destruction of evidence to delete or destroy any such photographs or postings. Please review this issue with a licensed attorney to make certain you do not engage in the destruction of evidence.

Are there any specific purchases I may have normally made in the past which I should not make while the divorce is pending?

Avoid dining at restaurants with “Bar” in the title or spending funds at a wine/liquor stores. Bank/credit card records are easily subpoenaed. Otherwise, normal expenditures in keeping with what you did during the marriage are not a problem, provided you keep records of them.

My friends/family want to help me out financially while the divorce is ongoing. Is this okay?

If you accept financial assistance from anyone for any reason, be sure to sign a Promissory Note. While you can be sued if you default on the note, the absence of the Note creates the presumption of a gift and could result in those funds being imputed to you as additional income.

May I contact my spouse’s attorney directly?

Do not contact opposing counsel for any reason without the advice of an attorney.

I want to let my spouse know we are serious. Is it okay for me to let them know what we’ve discussed?

It is generally not advisable to discuss your legal strategy or anything else you have discussed with your attorney with your spouse. While this is a very serious process, a good analogy for litigation is a poker game. Telling your spouse what we are planning to do and why (or why we did something in the past) is analogous to revealing your hand during a poker game. Further, failure to maintain a “poker face” can harm your case in that if your spouse senses you are overly anxious to settle. Therefore, “silence is golden” tends to be the best practice across the board.

If I think I can help speed the process along, is it okay to talk to my spouse or my children’s other parent about the case?

As long as you review the terms with an attorney first, productive conversations attempting to settle your case are acceptable. However, bullying matches of threats of what the judge will and will not do or what your attorney or their attorney said are strongly discouraged. If your spouse attempts to initiate such a conversation, it is generally best to advise them to have their attorney call your attorney and say no more.

I have been served with an Order of Protection. Now what?

Should an ORDER OF PROTECTION be entered in your case, do not communicate with the opposing party in any way or for any reason, other than through your attorney. This includes telling your spouse he or she should not be contacting you or sending message through a third person such as family members. Order of Protection = No communication, PERIOD.

How long must I follow a court order?

All court orders must be followed. Failure to follow a court order can result in your being held in contempt of court (which can include incarceration). Requesting a modification of a court order does not alleviate your obligation to follow the court order until such time as a new court order is signed by the judge. You can be held in contempt while a request for modification is pending.

The other parent hasn’t allowed me to see our children. Do I still have to pay child support?

You are required to follow all court orders, even if the opposing party is not. As stated above, you can be held in contempt for your failure to follow a court order, regardless of what the other party is or is not doing.

Is it okay to talk to my friends and family about my case?

It is generally not advisable to discuss your case with friends, family, etc.  There is no confidentiality in your or your attorney’s conversations with these persons and anything said can be brought out in court. Further, friends and family are not attorneys and, thus, their well-intended advice often causes unnecessary stress in the litigation process. Every case is unique, so comparing the results of a case a friend received to what you can expect to receive in your case is typically not a productive or accurate prediction.

I want to move more than 50 miles from the other parent or to another state. May I?

Tennessee has a specific relocation statute that requires specific steps to be taken 60 days prior to relocation if you are a parent exercising any interval of parenting time. Tennessee Court of Appeals opinions have held that this statute must be followed precisely. It is very important to discuss with an attorney if you are relocating or believe the other parent is planning to relocate prior to taking any actions.

I am not related to a child who I feel is being abused or neglected. Is there anything I can do?

Any suspected child abuse should be reported to the Department of Children’s Services. Also, Tennessee law does provide an avenue for any private party who has knowledge of the facts to file an action to protect a child who is being abused or neglected. If you believe this is the case, please review the facts of your situation with attorney Kay Church.

Can I get custody of my grandchildren?

It depends. Tennessee does recognize grandparent visitation rights. Parents will have a superior parental preference to custody of their own children. There are also separate actions, such as Dependent and Neglected actions, Guardianships, Terminations of Parental Rights and Adoptions that should be explored. However, it is very important to review the facts of each case with attorney Kay Church.

Do I really need a Will, Power of Attorney, or Living Will?

There are very specific requirements for a document to be legally considered a Last Will and Testament in the State of Tennessee. Further, there are additional requirements for signing of a Last Will and Testament such that it becomes admissible into the probate process. Therefore, if you are married, own a home, or have any significant debt (including school loans), it is always advisable to have a Last Will and Testament drafted by an attorney.
A Power of Attorney and Living Will are very advisable, as they direct how your affairs – including life-saving methods – are handled in your incapacity. Kay Church offers a competitive flat fee package to prepare these documents on behalf of clients.

Do I need a pre-nuptial agreement?

Most likely. Pre-nuptial and post-nuptial agreements are designed to protect assets in the event of a later divorce, and typically benefit the party with the most assets entering into the marriage. As unromantic as it may sound, a marital estate is a business entity that will be dissolved in the event of a divorce. A pre-nuptial or post-nuptial agreement can also avoid extensive legal fees, as well as the emotional toll, of the divorce process. Kay Church is happy to discuss the pros and cons of such agreements in a free initial consultation.

How much is this going to cost?

Outside of flat fee meetings and document preparation, the final cost of contested litigation is unpredictable. It will depend on how much time is spent on your case. Kay strives to keep all clients’ costs down while balancing giving each client the best possible legal representation. Kay does offer a free initial consultation where she can discuss what she feels the cost will be, based on the unique facts of each case. Your free initial consultation can be by telephone or in person. She also provides monthly statements so clients can assess the cost of their case as it progresses. Consolidating questions and using a separate counselor for the emotional aspects of the divorce process will also aid in reducing your overall legal cost.

Do you accept payment plans?

No, we unfortunately do not accept payment plans. We do accept credit cards, which will allow clients to make smaller payments to their credit card provider. Further, we can refer you out to a preferred lender to obtain a small line of credit to finance the legal process.