Divorce Q&A: Divorce Incorporated Memphis, Tennessee

Should I Consider Separation Before Divorce?

That is a personal decision for you to make.  If you believe your marriage may be salvaged with a some time apart and effort, then a period of separation may be appropriate.  However, I don’t believe there are any legal benefits.  I would base this decision on whether you think you and your spouse may be able to work things out and whether you are both willing to take whatever steps are necessary to make that happen.

What are common mistakes women make while going through a divorce?

  One common mistake that women tend to make when going through a divorce is being uninformed about the marital finances.  Many women allow their husbands to control the marital finances, including all of the support materials (bank statements, 401(k) statements, credit card bills, etc…), which may put them at a great disadvantage early on in divorce proceedings.  Information is key in a divorce.

 

Divorce Q&A From Divorce Incorporated, Memphis, TN

What is the significance of a military divorce and retirement benefits?

Military retirement is treated as property in a divorce. For any year of marriage overlapping with a year of service, that fraction of the retirement is considered marital property. There is a common misconception that a marriage must be over ten years for the spouse to get any portion of the retirement. This is not true. A judge can award the spouse of even a short term marriage a portion of the retirement. It is true, however, that only after ten years can the retirement come directly from DFAS. Otherwise, the court can order the servicemember to pay the ex-spouse directly.

 

My spouse and I have agreed to divorce. Our relationship remains on fairly good terms. Should we engage a single lawyer to represent both of us?

No, you should get your own lawyer. At a minimum you should hire an attorney to review the paperwork with you and to consult with you on your rights. If your spouse has a lawyer, that lawyer’s loyalties are all to your spouse. It is their aim to accomplish the most successful divorce possible for their client. Attorneys are there to advise and represent, even in an uncontested divorce. You do not want to put your trust in someone else’s hired professional.

Divorce Season

By Daniel P. Bryant, Attorney at Law

Tax season is divorce season. Each year reveals several months where divorce filings spike, but March seems to consistently peak highest at our offices. For many of those couples on the rocks who have wintered together for the last time, the IRS refund is the opportunity to have the extra cash to go see an attorney.

This yearly migration takes several patterns. For some it is a race, taking the money and launching an offensive on their spouse, the first volley of a nasty struggle. For others it is a spring outing, a last joint project for the unfortunately torn couple. Many will seek the most economical approach.

Only the most litigious of our society actually enjoy hiring an attorney. This sentiment is understandable, as we crop up most frequently at the worst times of your life, demand retainers, and often deliver difficult news. Divorce attorneys engender some of the most distaste. Some hopefuls will ask, “If I don’t want to get a lawyer, how do I do my own divorce?” No one has to get an attorney if they do not want to hire one. Can three years of law school, the bar exam, hundreds of contested hearings, and thousands of pleadings drafted, be summarized into a five minute telephone conversation?

Divorces come in all shapes and sizes. They all carry potential pitfalls. There is a difference between a divorce and a divorce done well. Attorneys are not just the mules that do the leg work. They are advisors, and they have experience in seeing the worst case scenarios. Undoing a poorly accomplished divorce is almost always harder than getting it right the first time. If you are wanting time with your children, alimony, a fair allocation of property and debts, support, or even just as clean a break as possible, it may be in your interest to talk to an attorney.

A divorce is a life-altering event. Hopefully, it rarely, if ever, happens to you. If it does, a professional can be of some assistance.

 

Divorce Q&A From Divorce Incorporated

I received a judgment for child support against my spouse. However he has just filed a petition in bankruptcy. Does his bankruptcy affect the judgment against him for child support?

  No, most domestic support orders cannot be bankrupted.  A judgment for child support is a type of domestic support order.  Alimony payments would be another type of domestic support order that cannot be bankrupted in most cases.  If the obligor attempts to terminate his/her child support obligation through the bankruptcy, he/she would have to give you notice of his action in bankruptcy court.  You could then challenge his claim.  Further, your domestic relations court should not enforce any order out of bankruptcy that purports to extinguish your child support, as such an order would be void.

When do you obtain a Criminal Court Order of Protection?

Orders of Protection, in Tennessee, are a civil form of protection.  Domestic abuse victims, stalking victims, and sexual abuse victims, are eligible to seek an order of protection against their abuser or stalker.  Once you obtain an order of protection, if the abuser violates the order, you have the right to call the police, and in most cases the perpetrator will be arrested.  Violating an order of protection is a criminal offense punishable by potential jail time.  Subsequent violations carry even heavier penalties.

What If I Have to Testify in Court?

If You Have To Testify  In Court

   Not many people enjoy the experience of testifying in court.  Sometimes, however, it’s absolutely necessary for to take the stand and testify.   The following are a few things to consider if you are going to testify.

• Dress appropriately for court appearances.   It may not be fair, but people judge others by the clothes they wear.   Women need to be cautious about wearing too much jewelry or make up.  It may be prudent to wear long sleeves to hide objectionable tattoos.  Do not wear a t-shirt to court.
• Do not chew gum.  Walk and stand up straight.   Try not to slouch in the witness chair.   When you speak, do not cover your mouth.  Speak up.
• It may be difficult to control your emotions when someone from the other side is testifying against you, but do it anyway.   Do not roll your eyes, shake your head, or mouth things to the person on the stand.   None of this is helpful in the slightest.  THIS IS NOT A TELEVISION SHOW.   Behavior that gets attention on Judge Judy may well cost you your case in real court.
• When possible, look at the Judge when you speak.   Remember, that’s the person you want to convince, not the attorneys in the case.
• Be polite.   It makes a favorable impression with the Judge.   Answer ‘Yes Sir’ or ‘Yes Ma’am’ to attorneys and address the Judge as ‘Your Honor’.
• The other side may try to bait you into giving an angry or smart aleck answer – don’t do it.   Losing your cool may cost you the case.
• TELL THE TRUTH.  It’s likely to come out anyway and it’s better coming from you than the other side.   And if the other side catches you in a lie, the Judge will not believe anything else you say.   Of course, it also helps if you’ve told your attorney the truth as well….hopefully before the day of court.
• Listen carefully to the question before you attempt to answer.   If you ask, the attorney will repeat a question for you.
• Do not state something as fact when you aren’t sure.   If you are estimating, let the Court know it’s a guess.
• If you don’t know the answer to a question, it’s always acceptable to say, “I don’t know.”
• DO NOT VOLUNTEER INFORMATION to the other side.   When their attorney asks a question, answer only that question.
• If the other attorney asks if you’ve discussed the case with your attorney, tell them that you have.   There’s nothing wrong with that.   If the other side asks if your attorney told you what to say, respond that they told you to be truthful.

Compiled By: Carl E. Seely, Attorney at Law

Divorce Incorporated

Can I Take My Child On Vacation If I’m Separated? Divorce Q&A

Can I Take My Child On vacation If I’m Separated?

Yes.  The law provides that a parent has the right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than two (2) days, an itinerary including telephone numbers for use in the event of an emergency; however, nothing in the law prevents a parent from taking the child anywhere.  The only exception would be where the parties have agreed not to take the child or children on vacation or where the court has specifically prohibited the act.

Do you have to make a certain amount of annual income to have a pre-nup? What is involved in the details?

No.  There is no income requirement for a prenuptial agreement.  Prenuptial agreements are ordinarily designed to protect the parties’ assets being brought into the marriage and to prevent litigation in the event of divorce.

Getting Stuck with Debt in Divorce

By Daniel P. Bryant, Attorney at Law and Angela Middleton, Paralegal

Divorcing parties typically want to get awarded more marital property than their spouse.  They want the house, cars, furniture, money, and other items.  These are the tangible objects to which they may cling, victorious in the wreckage and rubble of their marriage.  At the same time, in a consumer age of credit and desire, marriages are just as capable of growing debt as they are of acquiring goods.

Divorce does not dissolve debt.  The judge must divide and assign responsibility for these onerous obligations.  Debts incurred during a marriage are considered marital debts.   Tennessee is an “equitable distribution” state.  This classification does not mean that debts are divided equally.  It means that the court considers several factors before making a fair assignment of the debt between the parties.

There are four factors that Tennessee courts use in determining an equitable division of debt in a divorce.  These factors are:

1. The debt’s purpose;

2. Which party incurred the debt;

3. Which party benefitted from the debt; and

4. Which party is best able to repay the debt.

Alford v. Alford, 120 S.W. 3d 810 (Tenn. 2003)

No one wants to get stuck with debt.  Knowing how a court is likely to handle them is critical in making a fair settlement and in preparing for trial.  Your attorney will know best how to approach the debt you and your spouse accumulated.

This Week’s Divorce Q&A From Divorce Incorporated

How is military marriage separation different from regular separation?

First, service members are given protections through the Service Member’s Civil Relief Act.  When they are deployed or otherwise not available, soldiers and sailors are often able to invoke this protection to delay a case until they are available.  Service members are often required by the regulations of their respective branches of service to provide support to a spouse even absent a court order when separated but still married.  Military retirement pay is treated somewhat differently than most civilian pensions.  The nature of military service frequently complicates custody and visitation arrangements.  Military members may seek permission from the court to transfer their parenting time to a relative while deployed.  These are just some of the differences.  It is best to speak to an attorney about your individual case.

What is temporary alimony?

Temporary alimony, often called “pendente lite” alimony, is support paid before a final hearing or before a final order in a divorce case.  It is not child support but spousal support.  Its purpose is to keep the financially less fortunate spouse afloat while the case is still active.  It is to pay bills and to maintain assets.  Frequently, one of the opening acts in a divorce case is a request for temporary alimony.

 

Parental Relocation: Can My Ex Take My Child and Move?

By Daniel P. Bryant, Attorney at Law and Angela Middleton, Paralegal

We often get calls from terrified parents wondering if it is legal for their spouse, former spouse, or ex-boyfriend/girlfriend to move out of state and take their child/children with them.    The answer can be somewhat complicated, and like a lot of issues with the law, it depends.    If the caller is legally married to the other parent and no action has been filed in court, then both parents have a legal right to take their children anywhere they want without permission from the other parent.  It is important when you are considering a divorce with children to get the complaint filed with the court as soon possible.  Every divorce, once filed, causes a temporary injunction to issue that prevents both parents from relocating more than one hundred (100) miles away or out of state with the child without permission from the other parent or the court.

Unmarried parents are protected under Tennessee’s Parental Relocation statute IF the initial custody of the child has been determined.   The Parental Relocation Statute ,Tenn. Code Ann. § 36-6-108, states that the parent relocating must give the other parent written notification sixty (60) days prior to any move of fifty (50) miles or more.  The parent who wants to relocate must also include the purpose for the move, where the parent is moving, and notification that the other parent has thirty (30) days to file an objection to the move through the Court.   The moving parent then has the opportunity to file a petition to attempt to block the move.

As a parent, should you decide to move or if your child’s other parent decides to move, it is important to speak with your attorney quickly to know your rights and obligations.

Today’s Q&A From Divorce Incorporated

I have been married less than a year, can I get divorced?

Yes, in Tennessee there is no minimum period in which a person must “try marriage” before proceedings with a divorce.  Conversely, there is no separation period required.  A couple can get married, initiate their cohabitation, file for divorce the next hour, and continue to live together, both through the proceedings and after the divorce.  A large number of divorces are those couples married less than a year.

Can my wife’s behavior (She can be a bit erratic) be used to improve my financial claims?

   Yes, erratic, irresponsible, or selfish financial decisions by one spouse can play a factor in the equitable distribution of marital property.  One who “dissipates” assets, squanders their value, can be penalized in the property division phase of a divorce.  The acquisition and preservation of assets can also play a factor.  The financial contributions of each party is taken into consideration as are the roles of parent and homemaker.  Those who perform their roles are looked on more favorably by the court.  The spouse who has hurt the family finances can be penalized for such conduct. 

Cohabitation Defined by Tennesssee Law

By Daniel P. Bryant, Attorney at Law

And Angela Middleton, Paralegal

The divorced, for emotional reasons, often become preoccupied when their ex shacks up with a new love, flame, or fling.  This concern sometimes becomes a legal question.  Some alimony provisions terminate when the recipient begins “cohabitation.”  Cohabitation can play a major factor in whether to make an initial award of spousal support.  It can jeopardize a custody case if one is cohabitating with a harmful third party.  Therefore, what is cohabitation?

Cohabitation is not a defined term in the Tennessee Code, but Tennessee courts have given us some guidance.  The Tennessee Court of Appeals tells us that cohabitation is similar to marriage, roles are divided in the household, mutual reliance, comingling of goods, and the other trappings of marriage signal cohabitation.  See Don Mabee v. Gayle Mabee, M2012-02430-COA-R3-CV (Tenn. Ct. App. 2013).  In other words, dating is not cohabitation.  Occasionally spending the night is not cohabitation.  A romance is not cohabitation.

If your case or your outlook involves “cohabitation” or any cousin thereof, it is important to know what the terms mean.  Your attorney can help you with these words.  If you are making an agreement, you can always choose to define your terms very specifically and not have to crack open on the dictionary three years later.

FREE LEGAL CLINIC CO-SPONSORED BY DIVORCE INCORPORATED

Each second Saturday of the month, Memphis Area Legal Services operates a legal clinic for indigent clients at the Benjamin Hooks Public Library in Memphis.  This past Saturday, January 11^th, Divorce Incorporated co-sponsored the clinic along with the large multi-state law firm of Baker Donelson.   More than 44 attorneys, paralegals, legal assistants and law students volunteered several hours of their time to provide legal advice at no charge to more than 90 clients.   Issues ranged from family law problems to consumer issues to questions about having criminal records expunged.  

 

Tennessee Divorce Q&A From Divorce Incorporated

 

In Tennessee If I have been married less than a year, can I get divorced?

Absolutely.  There is no limit on the amount of time you’ve been married to get a divorce.

I own a company. Do I have to reveal the existence of the company and its accounts to my wife as part of any financial proceedings?

If your Wife or her attorney requests that information as part of the discovery process, then yes.  The information is discoverable.

WHO CANNOT GET MARRIED IN TENNESSEE?

By Daniel P. Bryant, Attorney at Law And Angela Middleton, Paralegal

“Here in Hollywood you can actually get a marriage license printed on an Etch-A-Sketch.” Dennis Miller

Much ado has been made about the recent ruling by a Federal Judge who overturned a portion of Utah’s polygamy statute.  All states have laws against polygamy/bigamy, and the ruling has left many wondering if this was a step toward legalizing polygamous marriage.  The portion of the statute that was struck down by the Judge had to do with the prohibition of a third party cohabitating with a married couple.  It was not struck down on the basis that polygamous marriage is a right, but rather that people have a right to live in their home with who they want i.e., a certain right to privacy (and that the law unfairly targeted the religious).  Brown v. Buhman (2:11-cv-652).  The prohibition against polygamous marriage stands firm in Utah and elsewhere.

Marriage regulations vary state by state, so while Tennessee does not allow bigamy or polygamy; it does not have a provision against a married couple living with another person.  Tennessee has its own set of restrictions on who can and cannot marry.   In Tennessee, you must be eighteen (18) years of age to marry, or sixteen (16) with parental permission.    Someone wishing to marry under sixteen (16) would have to get approval from a judge.     Tennessee does allow first cousins to marry, but any closer relation (mother, father, sister, brother, niece, and nephew) is prohibited.  Same-sex marriage is not recognized in Tennessee, so only a man/woman couple may be issued a license.    The validity of a marriage can also be challenged when anyone drunk, insane, or mentally incompetent gets married.   And of course, a license should not be issued to anyone already legally married.

 

Happy Holidays From Divorce Incorporated

On behalf of each and every member of the Divorce Incorporated staff we would like to wish our clients a safe and happy holiday season. Please enjoy this time with family, friends and loved ones.

Happy holidays,

Divorce Incorporated.

 

This Week’s Divorce Q&A, from Divorce Incorporated

What factors affect custody?

The overarching concept in custody cases is the best interest of the child.  There are ten enumerated factors on best interest in the statute, but anything going to best interest is relevant.  Some of the most important factors are the ability to care and provide for the child, the existing ties between the parent and child, the history of who has been the primary caregiver, the stability of the parent, continuity in the child’s life, mental health of the parent, the character of any person living with the parent, any history of abuse toward the child or other person, the willingness of a parent to facilitate the relationship between child and other parent, and sometimes the preference of the child.  The court is also supposed to develop a parenting plan that maximizes participation of both parents in the child’s life, as long as that participation is consistent with the statutory factors. 

What does pendente lite mean?

Pendente lite means pending litigation or before litigation.  It is a term that attorneys and courts use to mean anything before the final trial or hearing on a matter.  In the family law context, it is most frequently used in terms of temporary support.  Pendente lite alimony is temporary alimony sought while the case is still pending.  Pendente lite child support would be temporary child support while the case is awaiting a final hearing.  The term can also be used for custody, allocation of debts, and other matters.

 

Today’s Divorce Q&A From Divorce Incorporated Memphis

What is a post-nuptial agreement?

A post-nuptial agreement is similar to a prenuptial agreement (a prenup in common speech).  But unlike a prenup which happens before a marriage, a post-nuptial agreement takes place after a marriage.  Post-nuptial agreements cover the same aspects of separation that a prenup covers.  They control the distribution of property upon divorce, the allocation of debts, and the obligation for spousal support.  Postnups are scrutinized by the court to ensure proper execution.  There are several technical requirements for the language and execution of such agreements.  Therefore, it is important to have an attorney help you with these potentially life-altering legal documents.   

If credit cards are in only one spouse’s name, are such credit card debts incurred during the marriage also the responsibility of the other spouse?

Debts that arise during a marriage are marital debts.  This designation is true even if only one of the spouse’s names appears on the debt.  Credit card debts are no different.  As a marital debt, it is subject to a divorce action.  The judge can assign the debt to one of the parties or split the debt in some form, not necessarily fifty/fifty, between the parties.  The court will make this assignment on the basis of what is equitable, not equal.  If you are in the better position to pay the debt, if you benefitted from the debt, or if you were a part of the debt being incurred, there is a good chance that you will have to bear some responsibility for the credit card debt.

 

Divorce Q&A: Divorce Incorporated, Memphis

Will my spouse be forced to move out of the house or if I move out of the house, is that “abandonment”? 

 

                Both of you have the right to live in and enjoy the marital home, subject to certain basic restraints.  If your spouse is abusive, threatening or in some other way interferes with your use and enjoyment of the marital home, then you may apply to the court for an Order, granting you exclusive possession of the marital home, based on that behavior.  Absent some very offensive behavior, most courts will not require a man or woman to leave the marital home.

                If you choose to move out, that act does not constitute “abandonment”.  Obviously, when parties are not getting along, one of them may want to leave the marital residence.  He or she will not forfeit his or her marital interest in the home by moving out.  However, once you choose to leave, it’s time to think about filing for divorce.  If you leave your spouse and do nothing to contribute to the marital household for a period of months or years, you may be abandoning some property interests and will certainly be giving your spouse grounds for divorce.

 

How do I show that my spouse has Plenty of  money to pay for attorney fees, Alimony, etc.?

                The best way to show that your spouse has the ability to pay alimony and attorney’s fees is to bring the proof to court.  Bank statements, paycheck stubs, tax returns, IRA or 401(k) statements, and nearly any other document that evidences ownership rights in something of value may be used.  If the money is “off the books” so to speak, you may have to show a pattern of spending, or a “lifestyle” if you will.  This might include things that your spouse regularly pays for that would tend to show that he makes a certain amount every month.

 

Your Divorce Q & A, Divorce Incorporated, Memphis

Do you have any advice on How to Tell Your Spouse You Want a Divorce?

 I don’t think there is a “one size fits all” answer to this question.  It may depend on your spouse, the relationship between the two of you, whether or not you’ve discussed the idea before, and a whole host of other factors.  I would suggest speaking with an attorney, who you’re comfortable with about the situation and how to approach it.  Sometimes, telling a spouse you want a divorce sets a number of things in motion on the other spouse’s part that you need to be ready for.  Being prepared and having the advice of counsel so that you can anticipate some of those things is very important.

 How Can You Go Through a Divorce with Just One Attorney?

A divorce is an adversarial proceeding.  Most attorneys will not, and ethically should not, represent both parties in a divorce action.  Ordinarily, when parties get divorced with the use of one attorney, the attorney represents one of the parties.  The other party is just coming in to the attorney’s office to review and sign paperwork.  He or she does not have representation in that scenario.  The attorney’s allegiance is to the party who hired him.  It’s always best to have your own attorney when your children, assets and liabilities are at stake.

Attorney Fees in Divorce and Family Law Cases

By Daniel P. Bryant, Attorney at Law and Angela Middleton, Paralegal

Nobody likes paying an attorney up front.  The personal injury lawyers muddy the waters with their flashy, “I don’t get a dime until you’re paid,” ads.  However, family law does not work this way.  First, the Rules of Professional Responsibility do not allow for any type of contingency fee in most family law cases.  Your divorce attorney or custody attorney could be punished if he or she accepted such a pay arrangement.  Second, a lot of these cases do not promise a pot of gold or even money at all.

Many clients and potential clients ask, “Isn’t there a way to make my spouse/ex-spouse/father or mother of my child pay for my attorney?”  The answer is potentially.  Of course, the better phraseology is, “make my spouse/ex-spouse/father or mother of my child reimburse me for attorney fees.”  You will have to pay your attorney a retainer to take your case.  You may, as part of the ruling, get an order for your opposition to pay your attorney fees.

In the United States, courts typically follow the “American Rule” when it comes to attorney fees.  That rule is: Each side pays for their own attorney.  However, there may be exceptions.  Attorney fees can be available if there is a contract in dispute that provides for attorney fees.  Fees can also be available if there is a specific statute authorizing them.

Family law cases have such a statute.  Tenn. Code Ann. § 36-5-106 provides that the prevailing party in a divorce, custody, or support case, may recoup attorney fees from the loser.  This is not mandatory, however.  The judge carries the discretion to award the fees or not.  Typically, a judge will consider how valid the claims were by each side, whether one side caused unnecessary delay or baseless litigation, and other factors such as the needs of both sides.

If you want to have your attorney’s fees paid for you, first, hire an attorney.  The attorney will know how to properly request the fees.  Bring your case efficiently and without frivolous litigation.  Also, win, and be a clear winner.