CONTESTED DIVORCE

What makes a divorce contested, and how does the process work in Tennessee?

It is somewhat rare for a divorcing couple to agree on all aspects of their divorce at the beginning of the proceedings.  Therefore, although the majority of divorces end in a settlement of all issues, many divorces begin as contested divorces.

If you think your divorce may be contested and you would like to explore your options, you are invited to make an appointment to discuss your specific situation with an attorney.

At many law firms, and ours is no exception, hiring a lawyer to represent you in a contested divorce requires the payment of a retainer.  At our firm, funds are held in a trust account for your benefit until they are earned by the attorney.  As work is performed on your case, you are billed on a monthly basis for that work at the attorney's hourly rate.  Funds are then disbursed from the trust account to the lawyer when you are billed.  The amount of the initial retainer varies based upon the complexity and difficulty of the case. 

Below, the Tennessee contested divorce process is outlined.  Please keep in mind that every divorce is different, so not every divorcing couple will go through each of these steps.  The steps may also not occur in the specific order listed.  As with anything on my site, this outline IS NOT A SUBSTITUTE FOR AN ATTORNEY AND IT IS NOT LEGAL ADVICE.  It is merely an explanation, in general terms, of what a person might experience when going through a contested divorce proceeding in the state of Tennessee.

Filing of a Complaint for Absolute Divorce

A Tennessee contested divorce begins with the filing of a Complaint for Absolute Divorce and a Summons requiring a response within thirty (30) days of service of process.  The spouse who files for divorce first is known as the Plaintiff, and the other spouse is the Defendant. 

The Complaint contains facts about the case that must be included by statute.  It also lists all of the relief the Plaintiff is requesting from the Court.  The relief requested, usually listed in a section called "Prayers for Relief" or simply "Prayers," typically includes at least the following items, and sometimes a lot more: the granting of a divorce; the equitable division of assets and debts; the awarding of alimony, court costs, and attorney fees; and the adoption of a proposed parenting plan if the parties have minor children.

Service of Process

There are various methods of service of process.  I prefer to use a private process server, but many firms use the sheriff's office instead.  If the Defendant lives out of state, service via certified mail or via the Tennessee Secretary of State is potentially an option.  If the Plaintiff does not know where the Defendant is and cannot find the defendant after searching diligently for him/her, then the Defendant may be served via publication in a newspaper of general circulation such as The Daily News in Memphis.

Filing of an Answer and Counter-Complaint

After the Defendant is served with process, s/he will have 30 days to respond to the Complaint by filing an Answer.  In his or her Answer, the Defendant will either admit or deny each allegation contained in the Complaint.  Commonly, though not always, the Answer will be accompanied by a Counter-Complaint for Absolute Divorce, in which the Defendant tells the Court s/he also wants a divorce and requests relief from the Court similar to that requested by the Plaintiff in the original Complaint. 

If a Counter-Complaint is filed, the Plaintiff also becomes a Counter-Defendant and the Defendant also becomes a Counter-Plaintiff.  If no Counter-Complaint is filed, then after the filing of the Answer, the pleadings are closed and the case is said to be at issue.

Filing of an Answer to the Counter-Complaint

If a Counter-Complaint is filed, the Plaintiff/Counter-Defendant will have 30 days to file an Answer to it after it is served upon him or her (usually through his or her attorney).  After the filing of this Answer, the pleadings are closed and the case is said to be at issue.

Discovery

Discovery is a process by which each party sends certain requests seeking information that will allow them to assess the strengths and weaknesses of the other party's case.   Parties are permitted to discover not just information that would be admissible into evidence, but may make requests that are "reasonably calculated to lead to the discovery of admissible evidence."

Common discovery procedures undertaken in divorce proceedings include the following:

• Interrogatories
  • Interrogatories are written questions sent, or propounded, by one party to the other party. 
  • The other party must answer these questions in writing under oath.  They have similar force as testimony by a party, and what you say in your responses can be used for or against you at the trial.
  • Usually, your attorney will have you complete the first draft of your answers, then prepare formal responses for your review and signature.

• Requests for Production of Documents and Things
  • Requests for Production of Documents and Things are exactly what they sound like.  They are formal requests that are sent, or propounded, by one party to the other party.
  • The other party must produce, or let the other party inspect and copy, any document or thing requested that is relevant to the litigation or "reasonably calculated to lead to the discovery of admissible information." 
  • Commonly requested documents in divorce litigation include bank records, credit card statements, telephone bills, tax forms, employment records, financial statements, deeds, emails, social media profiles, and so on.
  • Usually, your attorney will have you gather whatever requested documents and things you have in your possession, and then she will prepare your formal responses.

• Requests for Admissions
  • Requests for Admissions ask a party to admit or deny certain facts in an attempt to narrow the issues that will have to be litigated.
  • If the party does not respond within thirty days, the admissions can be deemed admitted.

• Subpoenas
  • A subpoena is a court order requiring a person or legal entity (such as a company or corporation) to appear to testify, produce certain documents, or both.  Although subpoenas can be issued to parties in a case, more commonly, subpoenas are used to secure testimony and evidence from non-parties, such as banks, employers, witnesses, etc.
  • A subpoena ad testificandum (order to "testify under penalty of law"), sometimes just called a subpoena, is a court order requiring testimony either at a deposition (see below) or at a trial or hearing.
  • A subpoena duces tecum (order to "bring with you under penalty of law") is a court order requiring certain evidence to be produced.  This is how a lawyer can obtain documents directly from a third party, such as an employer or credit card company.
  • Subpoenas are court orders and their violation may be punishable by contempt, depending on the circumstances.

• Depositions
  • A deposition is a proceeding where the testimony of a witness, called the deponent, is recorded by a court reporter.
  • Depositions usually occur at the office of one of the attorneys.
  • There are two types of witnesses: fact witnesses and expert witnesses.  A fact witness testifies to things he or she has seen or heard.  An expert witness testifies in his or her area of expertise.  The most common expert witnesses in a divorce trial are psychologists who have performed mental evaluations on the parties or their children, vocational rehabilitation experts to testify to the earning capacity of each party, appraisers, accountants, and other financial experts.
  • In most contested divorces, only the parties (husband and wife) and any expert witnesses are deposed prior to trial.  Most fact witnesses are simply subpoenaed to appear at the actual trial to testify.
  • However, almost anyone with discoverable knowledge about the case could be deposed, including adult children of the parties, paramours (boyfriends or girlfriends of the parties), or other third-party fact witnesses.
  • Appearance at deposition by a party to the case is usually secured by sending a notice of deposition to that party's lawyer.
  • To take the deposition of a non-party, a subpoena is used.
  • A rarely-used procedure similar to interrogatories is a deposition upon written questions.  Using this procedure, a lawyer or party can require a non-party to respond to written questions under oath.

• Physical or Mental Evaluation
  • After one party files a motion asking for it, a court may order a party (or a person under the custody of a party, such as a child) to submit to a physical or mental evaluation.
  • Mental evaluations of parties and their children are frequently conducted when child custody is at issue.
  • Common reasons for a physical evaluation in the context of a divorce include
    • DNA testing to determine a child's paternity,
    • drug testing of a parent,
    • psychological evaluation of both parents to evaluate parental fitness,
    • psychological evaluation of a child or children to determine their needs and best interests related to custody, and
    • evaluation of claims that a person is disabled or that his or her employment prospects are limited by his or her physical condition, which can have an impact on child support and spousal support (alimony).

Pretrial Motions and Requests for Temporary Relief

At any time after the Complaint is filed, either party may file a motion or petition asking for a temporary order granting certain relief pending the outcome of the case.  Such temporary relief is often called pendente lite ("pending the litigation") relief.  In addition, either side may file other motions designed to gain certain information or move the case forward in some way.  Common motions and requests for relief filed prior to trial include the following:

• Motion for Support Pendente Lite
  • Child Support - usually to be paid by the Alternate Residential Parent to the Primary Residential Parent
  • Spousal Support, or Alimony - to be paid by the economically advantaged spouse to the economically disadvantaged spouse
  • Attorney Fees

• Petition for Adoption of a Temporary Parenting Plan
  • While a divorce is pending, each parent has equal rights of access to and custody of each of the minor children until a court orders otherwise.
  • The parties may reach an agreement about who will exercise what parenting time until the divorce is finalized, but sometimes they cannot.  If they cannot, then they may ask the judge to decide.  Typically, the judge will order the parties to attend mediation before holding a hearing about parenting.

• Motion for Appointment of a Guardian ad Litem
  • If you have children and child custody is expected to be a disputed issue, one of the parties may move the Court to appoint a guardian ad litem ("GAL").  A GAL is an attorney tasked with investigating the case and then advocating for the children's best interests.  According to Tennessee Supreme Court Rule 40A, in custody cases, courts are supposed to appoint GALs sparingly, but in my experience, if one party requests appointment of a GAL, the Court will grant the request fairly frequently.  The parties are typically responsible for the GAL's fees, which are billed and priced similarly to those of a divorce attorney.

• Petition for Exclusive Use of Marital Home
  • Tennessee law does not require parties undergoing a divorce to live in separate residences.  In fact, many couples continue to reside together even after the divorce is granted (until a home can be sold, for instance).
  • However, in certain situations, continued cohabitation of the parties would be unsafe and improper.  In those cases, the filing of a Petition to force the other spouse to move out may be necessary.  Courts are generally unwilling to grant such requests unless there is a very good reason and there is sufficient evidence to support that reason.

• Petition for Order of Protection
  • If one party is a victim of domestic violence or physical abuse by the other party, s/he may petition the divorce court for an Order of Protection. 

• Motion for Scheduling Order or Trial Date
  • There are a lot of reasons why a divorce case can move slowly.  Sometimes, one party drags his or her feet about getting a divorce.  This may be because that party does not want a divorce, because that party is happier staying married but physically apart, or because that party is waiting for some triggering event before the divorce is finalized (the completion of 10 years of marriage, immigration status adjustment, the arrival of a car accident settlement, graduating from school, etc.).  Sometimes the case drags on because one attorney is too busy to handle his or her caseload appropriately.  Sometimes the parties do not provide their attorneys with the information necessary to move forward. 
  • Whatever the reason for slow progress, a motion for scheduling order or a motion to obtain a trial date can help give the parties goals for moving the case toward resolution.  A scheduling order is an order setting forth deadlines for various parts of a divorce - written discovery, depositions, mediation, etc., and an eventual trial date.

• Motion to Compel Discovery
  • This motion asks the Court to order the other party to respond to discovery requests if those requests are late.

• Motion in Limine
  • This motion asks the Court to order the other party not to present certain arguments or evidence at the trial.  It is usually filed close to the time of trial.

Mediation

Mediation is "an informal process in which a neutral person conducts discussions among the disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute."  Generally speaking, if one party asks the Court to order mediation, the Court will grant the request unless there is a very good reason why it should not.

There are different methods of mediation.  The most common method in Memphis, Shelby County, and the surrounding area is called shuttle mediation.  In shuttle mediation, the parties are each in separate rooms with their attorneys and the neutral person, called a mediator, goes back and forth between the rooms to try to bring the parties to a settlement. 

Another mediation style sometimes used in the Shelby County area is facilitative mediation.  In this type of mediation, the attorneys, their clients, and the mediator are all in one room.  There are advantages and disadvantages to each style of mediation, and the parties can consider what is best for their particular situation when selecting a mediator or suggesting one to the Court.

The advantage of mediation over simple informal settlement negotiations between the attorneys is that it gets the parties and their attorneys in one place at one time, so settlement offers get immediate feedback from the other side.  This can result in successful resolution more quickly than writing letters back and forth or even scheduling phone conferences between the attorneys.

Trial

If you are unable to reach a pretrial settlement, your case will proceed to trial.  At trial, you and your spouse will present evidence through documents and witnesses about all the issues you were unable to resolve together prior to trial.  Most divorce trials take approximately one day, and the vast majority take less than a week of in-court time. 

The judge or chancellor will then decide who is entitled to be awarded a divorce, on what ground(s), how the debts and assets of the marriage will be divided, whether there will be any alimony and how much, what parental decisionmaking responsibility and parenting time each parent will have for each of the children, what child support will be awarded, and any other outstanding issues related to the marriage. 

The judge or chancellor may not grant the divorce on the day of trial, but may want to take a while to think about property division or some other aspect of the divorce.  If this is the case, you may have to wait on an order or a letter ruling from the judge or chancellor.  DO NOT MAKE PLANS FOR A WEDDING DATE TO A NEW SPOUSE BASED ON YOUR TRIAL DATE.

After a Final Decree of Absolute Divorce is entered (signed by the judge or chancellor), you will be officially divorced.  You should consult with your attorney about your rights and responsibilities after the entry of your Final Decree.