What Are The Phases Of Divorce?

When you meet with our attorneys for your initial consultation at The Landers Firm, PLC, we will discuss your situation in detail. It is best that you think about your goals and bring us financial documentation. From there, we can discuss the phases of divorce, which include:

A. Generally

Once you have completed the consultation, retention, filing, and service processes, the phases of a divorce are generally as set out below, and you should keep in mind the following general time frames:

  • If you have minor children, the time that must pass from the date you file your "Complaint for Divorce" until you are legally able to request a final hearing is 90 days. This does not mean that anything happens on the 90th day or that your case is actually ready for a final hearing at that time. This simply means that if your case is either ready for a final hearing or fully settled prior to 90 days passing, we must wait until the 90th day has passed to have a final hearing before the Court.
  • If you do not have minor children, then the time that must pass from the date you file your "Complaint for Divorce" until you are legally able to request a final hearing is 60 days. This does not mean that anything happens on the 60th day or that your case is actually ready for a final hearing at that time. This simply means that if your case is either ready for a final hearing or fully settled prior to 60 days passing, we must wait until the 60th day has passed to have a hearing before the Court.

B. Discovery

The first formal phase of any lawsuit after the filing of a Complaint for Divorce is called "discovery" because that's what parties and lawyers are doing – discovering everything they need to know about the parties, the finances, the children, the family income, etc. We will either organize you to look for specific items, or we will ask specific questions directly to your spouse so that we are provided answers and documents that tell us what we need to know – including answers about financial issues and relationship situations. After the exchange of written data, then things like depositions may occur.

C. Identification, Classification, And Division Of Assets And Liabilities

Through the information-gathering process involved in discovery, we will use what we learn to construct a true picture of your financial circumstances, and we'll place those details in a format that you will be very comfortable with and understand well and that will help the Court in making findings for every asset or liability in your case.

The first determination that the Court will make is whether the item in question is "marital" or "separate." Generally, separate assets are those that one of you had prior to your marriage, that you inherited, or that were given to you as a gift, and which you continued to hold separately. With a few exception, increases in value to those separate items will also be separate unless marital efforts or money earned during the marriage has been used to cause the increase in value. Separate assets are typically retained by their original owner. There are, of course, special exceptions that apply to special circumstances.

Marital assets are nearly everything else, including things like closely held businesses or professional practices.

An unusual marital asset is called "dissipation," which is generally a sum expended by a spouse on inappropriate things such as dating or traveling with others outside the marriage, gambling, illegal drug use, or inappropriate alcohol use. Dissipation is carefully calculated with concrete records and then funds can be "awarded" to the spouse who used the funds in question as though those dollars actually still existed.

The division of marital assets occurs without considering the fault of a party ("grounds for divorce"), and the guiding principal of division is that the Court is to achieve "equity" with the division, but "equity" does not necessarily mean "equal."

D. Incomes And Monthly Budgets

Knowing the details of your family's income, including what each spouse earns if they work outside the home, is very important for handling alimony and child support requests, and each party will be required to provide a detailed roster of anticipated monthly income and expenses typically using between 12 and 18 months of records to achieve a monthly average.

E. Child "Custody"

Also during the discovery phase we will learn about your child-related issues and work with you to determine what we believe is the best arrangement for your child or children. But, the Court will not use the phrase "custody" in your case. The terms now utilized under Tennessee law are "Primary Residential Parent" and "Alternate Residential Parent." However, these titles do not hold the significance one might think. In fact, regardless of who holds these titles, each parent's specific rights to make decisions on the education, health, and extracurricular activities of the children will be identified depending on the circumstances of your case.

F. Child Support Awards

If "minor children" are involved, then the Court will want to know the following in order to make a ruling on the issue of child support. Each of these items, as well as others that are not mentioned here, can affect child support in complicated ways:

  • Each parent's gross income.
  • Each party's parenting days with the minor child or children.
  • The cost of the children's portion of health and dental insurance.
  • The cost of a child's special needs, including things like monthly medications, tutoring, etc.
  • The cost of any work-related day care expenses for a minor child.
  • The cost of any special lessons or activities, such as travel or camp.
  • The cost of any private school expenses for a minor child.

All of the foregoing can be placed on a Tennessee Child Support Worksheet, which then calculates the child support for us. The amount calculated on the worksheet is what the Court considers "guideline child support." Deviations upward or downward from the "guideline" amount may be approved by the Court in special circumstances.

Remember that "minor children" are defined typically as children of any age with special needs, and those children without special needs who have not yet turned 18 years of age and graduated from high school. If a child has accomplished both of those things, then he or she is no longer a "minor child" subject to a Court's order of support. Fortunately or unfortunately, this means that our courts are not able to award college tuition and college-related expenses unless it occurs with the consent of both parties. Therefore, it is very important that you speak with your lawyer before obligating yourself for college expenses as this type of obligation cannot be modified later — even if there is a change in your financial circumstances.

G. Alimony Or "Spousal Support"

To calculate alimony, which is also called "spousal support," the Court is governed by many factors, the most important of which are "need" and "ability to pay." While there are no hard and fast rules, you can typically assume that the longer the length of the marriage and the greater the disparity in the parties' earning capacities, the greater and longer the alimony award. Conversely, the shorter the marriage and the closer the parties' earning capacities are, the less likely it is that there will be a significant alimony award or any at all.

If minor children are involved in your case, then the Court will do the calculation set out under the "Child Support" paragraph above to determine the amount of child support the payor must pay monthly. Using that sum, the Court will then take the payor's gross monthly pay, subtract the appropriate, required taxes and the required child support payment, and then subtract his or her "reasonable monthly living expenses" to achieve the payor's "net available income." A similar calculation will occur for the spouse requesting spousal support, all of which is followed by a "need" and "ability to pay" analysis.

There are several different types of alimony available in Tennessee, all of which depend on the circumstances of your individual case.

H. Informal Settlement Discussion

Once we are well educated about all the facts of your case, with your assistance and involvement we will attempt to resolve your case directly with the other side. If this is successful, and it often is, your settlement documents will be promptly drafted.

I. Mediation

If we are unable to resolve your matter through informal settlement negotiations with the other side, we will attempt settlement through a highly successful process known as "mediation." Mediation involves the use of a well-trained mediator with strengths appropriate to your case, who will meet with both sides on a scheduled date, and use his or her best efforts as an educated neutral to resolve your issues. By law, parties to a contested divorce are required to participate in mediation with the exception of a few limited situations as set out by statute.

J. Trial

If we are unable to resolve your matter through informal settlement negotiations with the other side or through mediation, we will then begin the trial preparation phase, which involves much detailed work and preparation for a presentation of your issues to your Court.