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.

Divorce Q&A: From the Law Office of Divorce Incorporated, Memphis, Tn

What is the “cooling off” period in Tennessee?

The “cooling off” period is a statutory scheme, implemented by the Tennessee Legislature, to give divorcing couples some time to reconsider ending their marriage prior to the divorce becoming final.  Currently, Tennessee law provides that a divorce complaint must be on file with the court for a minimum of sixty (60) days for divorcing couples without children of the marriage and ninety (90) days for divorcing couples with children of the marriage before the court may grant the parties a divorce.

 

What is the Discovery Process and do you implement this at your firm?

The discovery process is a series of exercises intended to gather information. It may include Interrogatories (a lawyerly word for questions), Requests for Production of Documents for Inspection and Copying, Requests for Admissions, Depositions, as well as, other unique tools, depending on the facts and circumstances of the case. Discovery is a very common process in any contested legal matter. We certainly utilize the discovery process at our firm.The “cooling off” period is a statutory scheme, implemented by the Tennessee Legislature, to give divorcing couples some time to reconsider ending their marriage prior to the divorce becoming final. Currently, Tennessee law provides that a divorce complaint must be on file with the court for a minimum of sixty (60) days for divorcing couples without children of the marriage and ninety (90) days for divorcing couples with children of the marriage before the court may grant the parties a divorce