Divorce Defaults

I am an attorney that practices law in Middle Tennessee. www.jamesphillipslaw.com.  If you need self-help legal, go to invisiblelawyer.com.

Many of my clients are very concerned about the length of time that it takes to get a default judgment. They see this as the quickest and easiest ways to get rid of a troublesome spouse.  In a divorce, a complaint is filed with the court.  After the complaint is filed, the complaint must be “served” on the defendant spouse.  This can be accomplished in a variety of ways, but basically what this means is that the complaint for divorce must reach the hands of the defendant.  Once the defendant has the complaint, they have thirty days to respond or they are subject to a default judgment.

The default judgment can be both a good and bad thing.  In Tennessee, default judgments are looked upon by the Courts with disfavor.  This means the preferred method of resolving cases is that they are either settled through agreement by the parties or they are litigated in front of a judge who will render a final decision.  Because of this, many default judgments are thrown out by the opposing party getting an attorney and filing a rule 59 or rule 60 motion to set the final decree aside.

A default judgment in my county, Montgomery County, is a pretty easy thing to get.  If the defendant does not show up, the court has a hearing where the plaintiff, my client, will testify to the basic correctness of the complaint and establish fault.  The plaintiff will bring two witnesses who testify to the truth-fullness of character of my client and after they ask the court for what they want and establish the fault, the hearing is over and the divorce is granted.

This may not go so well if the other party shows up to contest the default.  Although I have seen judges go forward and grant the default judgment even if the opposing party arrives at the hearing, generally, they will stop the default and give the opposing party a week or so to file their response to the original complaint.   If an attorney is hired, they can whip up a response to a complaint in just a few minutes to defeat the default.

Also, when I am getting a default judgment for my client, I always suggest that they not try to bury the other party.  I will usually suggest that the Parenting Plan is fair and would not seem overly coercive.  This is because even in a default judgment the Judge has a requirement to keep the best interest of the children in the forefront.  Also, any request for alimony or a complete grant of all property can be looked upon with disfavor from the Judge.  The judge may not feel that they can make this kind of ruling without the other party being there.

All in all, a default can be a quick and efficient way to get a final decree in a Tennessee divorce.  The problem is that they are still subject to attack later.  They can be defeated at a hearing on the cause and they do not grant the complainaint everything they might otherwise get at a contested divorce trial.

Visitation Issues in Divorce

During a divorce, if the parties have children, visitation will generally be an issue.  Obviously there is less of an issue when the divorce is uncontested than when it is contested.   The best plan for the kids is almost always to have the two parents come to some kind of agreement.  Regarldless of whether or not the parents can agree on whether or not they can live together, they should spend some time and think about how to best resolve the visitation for the benefit of the kids.

In a divorce case, there are generally four different ways that visitation is established: (1) by agreement of the parties, without any signed or written court order; (2) an agreed order, signed by the presiding judge; (3) an agreement worked out at mediation and held until the final hearing; and (4) a contested hearing on a motion for visitation which results in court ordered visitation from the judge.

If the mother and father are going to come to an agreement, the best idea is to look at the best interests of the children. The best type of plan will maximize each parent’s time, creating quality time with the children.  Kids are busy these days and parents need to work out a plan that considers school, outside activities, day care, vacation, sports, church, etc. Also, remember, teenagers may prefer to spend a good deal of their time with their friends rather than the parents.

Typically, in Tennessee, the parenting plans are alternating weekends for the day to day schedule.  Sometimes, the non-residential parent will also have an alternating week where one of the weekday evenings is spent with the children.  Six weeks of visitation in the summer is typical, with the parents creating some clause to allow for each parent to be able to spend an extended holiday with the kids.  The major holdiays are alternated.

Sometimes  you need to be careful what you wish for.  I have had parents complain that the were not getting enought visitation.  They say that the other parent is denying them visitation.  Then, we go into court and set up a system for monitoring the visitation and find out that it is my client that is not exercising the visitation.  Now, the problem becomes that the judge will punish that parent for wasting the court’s time when they aren’t really going to follow the plan.

Divorce in Tennessee

I am an attorney that practices law in Middle Tennessee. www.jamesphillipslaw.com.  I start every blog on divorce with this disclaimer: Nothing in this blog constitutes establishing an attorney-client relationship.  Also, this blog is general advice and commentary and should not be construed as a substitute for either the need for getting specific advice from a lawyer or from hiring a lawyer.  In Tennessee, Divorces are complex and require the hiring of a lawyer.

There are two types of divorce in Tennessee.  Essentially, the common usage is “uncontested” and “contested” divorces.  What this really means is this: (1) an uncontested divorce is based on irreconciliable divorces, which essentially means the parties agree that they will no longer be able to stay married; and (2) a contested divorce is based on fault based grounds, which means that somebody done somebody wrong.

Ok, what does this really mean? 

An uncontested divorce is basically a divorce by agreement.  The essential requirement for an uncontested divorce is that the parties (husband and wife) have an ability to agree on the division of their stuff.  Basically, they have to split money, accounts, cars, retirement, houses, alimony, taxes.  Everything that the parties have acquired together; operative word together, during the time they have married is up for grabs and can be equitably divided.  Now, the division of marital property has some caveats.  If a party owned something before the marriage, it may not be divisible because it is separate property.

Once the parties can has out an agreement, they will then document this agreement in the form of a Marital Dissolution Agreement (MDA).  This agreement has some specific requirements and generally must comply with the rules established by each local court in each Tennessee County.

If children are involved, then for the divorce to be uncontested, the parents will have to agree on a parenting plan.  In Tennessee, a parenting plan consists of several things: a day to day schedule for visitation, a holiday schedule (major holidays, summer, spring, fall and winter break), a determination of financial requirements through child support, life insurance and health care, and also a division of the tax credit.  The parenting plan is usually very specific and is designed for the time when the parents may have a dispute.  The parenting plan is a guide to fall back on, but does not necessarilly have to be the rule.

Once these two documents are completed and the statutory waiting period has ended, the parties can be divorced.  This is done through a final decree and notice of hearing.

The main thing to remember is that an uncontested divorce requires the agreement of the parties.

If the parties can’t agree, the divorce becomes contested.  This is usually a knock down drag out fight.  The pattern in a contested divorce normally involves these parts: (1) filing of a contested complaint, (2) motions involving support, paternity, possession of the home, custody etc, (3) mediation, (4) interrogatories, (4) depositions, (5) trial preparation, (5) trial brief and (6) trial.  Some time there will also be a requirement for a forensic accounting if there is a dispute over where all the money has gone.

Generally, the filing of the divorce complaint begins the process.  In a contested divorce fault-based grounds will be alleged and the other party will need to be served the paperwork.  What this means is that a process server, postal worker or sherrif will need to get the paperwork into the other party’s hands.  Once this is done, they have thirty days to respond to the paperwork.  After thirty days, if there is not response, the filing party may fiile a motion for default. 

If the party responds with an answer and “counter-complaint,” then the original filing party must file an answer to the new filings.  At this point, generally it is on like donkey-kong.

Most of the the time the next thing that happens is the filing of motions.  These are requests to the court for relief.  The requests are asking for the Court to do something of a temporary nature to set the terms of how the couple is to live until the final decree.  For example, many times one party or the other will file a Motion to Set Support. This can be in the form of Alimony or Child Support or Both. Once the Court orders support, the order will normally last until the final hearing and is not meant to be ongoing beyond that.

Mediation is also becoming a necessity.  Mediation is designed to get the parties to resolve the divorce through the use of an neutral attorney or a Rule 31 mediator.  Mediation can be done with or without the participation of the party’s attorney.  Generally, what takes place is that the parties sit down in one room and try to hash out the terms of the divorce.  The goal here, once again, is to create a Marital Dissolution Agreement and Parenting Plan (see uncontested divorce).  If the party’s can’t come up with a complete agreement, many times it is helpful if they just agree on parts of the divorce.

Interrogatories are also normally filed.  These are written questions to the other side that are required to be answered as part of the discovery.  They are sworn to and must be answered truthfully.  As part of the interrogatories, there is a request for production of documents.  This also each side to flesh out their file and get anything that they may need for trial.

After the interrogatories are returned, the lawyers may want to schedule depositions.  Depositions are conducted with a court-reporter present.  This is a question and answer session where the lawyer can ask questions of your spouse and have the answers recorded.  The answers are under oath and lying in a depostion is perjury.  The court reporter is expensive and charges for each page of the transcript, so sometimes clients who don’t have a lot of money to spend on a divorce may want to forgo the depositions unless they believe they are a vital part of the discovery proceedings.

Trial preparation will require preparation of witnesses, filing of trial briefs, preparation of evidence for the court and preparation of the client.  This is done after the evidence is gathered through discovery and will follow the rules of the local court.

A divorce trial can be disappointing for the client.  Many times clients are more concerned with vindication and justice than they are with the distribution of their assets.  The judge is generally less interested in sorting out the fault than he or she is in splitting the parties’ stuff and creating a parenting plan that is in the best interest of the child.

What the judge wants is what is going to happen in trial, so for the most part, the lawyers will spend a limited amount of time having clients and witnesses testify about adultery, abuse, etc.  The real crux of the argument will be on issues such as equitable division of property, custody of the kids, alimony, attorney fees, and the granting of the divorce.

Once the judge rules, the Court will put out an order that outlines all of the issues that were brought up in the final hearing.  This order becomes final and the parties are divorced.

If one side or the other disagrees with the ruling, the have a limited amounted of time to appeal and may go to the next higher court to ask that court to grant relief.

Also, later on down the line, as things change, one party or the other may want to reopen the divorce to have the judge review some or all of the determinations.

In my experience, a contested divorce should never be handled pro se in Tennessee.  Pro se is when a client represents themselves.  There are just too many issues and a divorce in Tennessee can be too complex for a client to represent themselves.  They will be at a serious disadvantage in front of the judge.

I hope this helps.  If you need an appointment, www.jamesphillipslaw.com.