Communicating with your attorney in a divorce

If you have questions or concerns, you may text me at (931) 217-7648. My name is James Phillips. In a divorce, it’s critical to communicate with your attorney. Many law firms have developed a model where they communicate with their clients through the use of paralegals. The lawyer does not consider him/herself responsible for the relationship with the client. This damages the attorney – client relationship. In a divorce, the client should expect to have direct contact with his or her attorney. The reason for this is that so much of what is said between the attorney and the client is directly related to what may happen at trial.

Divorces can be messy, hurtful, and expensive. For the person getting divorced, the divorce will typically be one of the most traumatic events of their lives.  Although paralegals are helpful, and in most firms, vital to the production of documents, they are generally not the best members of the law firm to be directly communicating with the client.  When the client’s main line of communication is the paralegal and not the lawyer, the divorce lawyer will frequently not have a good handle on the issues that concern the client. This can become a complete breakdown if there is an client perceived emergency and the client has no faith in the lawyer.

This line of communication is also critical in the attorney-client relationship because the client a lot of times is worried about things that they should not be worried about.  As the attorney and client establish a relationship over time, the attorney frequently educates the client, so by the time they get to the final hearing, the client has a clear expectation as to how trial unfolds.

For example, in a divorce/custody case, one of the ways that I do this with my clients is by educating them on the Tennessee Best Interests of the Child Test. I know that from the beginning of our relationship, they are concerned with the eventual outcome as it relates to the primary custodian of the children. So, right from the start, I see my role as an educator.  Most of the times, I am the only one of the two of us that has gone through the divorce process and I have done it thousands of times.  My knowledge provides comfort as a guide. I use my clients concerns as a means to educate.  Whenever a concern arises as to parenting, I will go over each element of the BIOTCT and explain how at trial we will be building a case around each one of the factors.  This will relieve the client’s anxiety because they will understand why certain pieces of information are more important to me as a lawyer.  Eventually, they begin to focus our conversations on the important legal issues because I have communicated directly to them.

Since paralegals don’t go to try, they generally have a very good understanding of the law, but will not always have a grasp on how that will play out in Court.  They can also have more information about the client and the client’s needs than the lawyer if they are doing the majority of the communication.

If you are spending more time talking to your paralegal and feel like you don’t know your lawyer, this is a good sign that something is wrong.  If you feel like you are being ignored by your lawyer, this is a good sing that something is wrong.  You have to trust the lawyer because you are putting your whole life in their hands.  They earn that trust by working hard on your case and showing through communication/

Tennessee Example Parenting Plan

Here is an example of a Tennessee Permanent Parenting Plan which is used for both divorce and custody cases in Tennessee.  Tennessee Blank Parenting Plan

If you are doing a divorce or custody case in Tennessee, you need to work through the Parenting Plan and create a Plan that is in the best interest of your children.

At Invisible Lawyer, a lawyer is willing to work the Tennessee Parenting Plan with you.

Motion for Support

One powerful way to turn the tables in a Tennessee Divorce is to file a Motion for Support Pendente Lite. Essentially, this is a request for the judge in a divorce to award one side or the other financial support, temporarily, while the parties await the discovery process and for a final hearing.

The outcome of this hearing can be determinative of how fast the divorce will proceed. If one side or the other gets an upper hand and receives a great deal of financial support it can end their incentive to move with any speed to the final hearing.

If you are having a hard time negotiating an uncontested divorce with your spouse and they make more money than you, you might want to consider filing a motion for support.

You can get divorced while deployed

Our law firm, Phillips Law, PLLC, has many clients who are either in the military or who are spouses to military members.  Since 911, the military has been operating at a very high OPTEMPO.  This means almost all of our military clients will experience a deployment to Southeast Asia at some point in their careers.  This also means that many of our clients who have deployed repeatedly will go through at least one divorce.

There is a myth among many military lawyers and military members that soldiers cannot get divorced while they are deployed.  In Tennessee this is not true.  We frequently get our clients divorced when one of the parties is deployed.

In order to get the divorce while deployed, a couple of things must happen.  One, the divorce will have to be uncontested.  This means that the two sides will have to agree on a Marital Dissolution Agreement that splits all of the marital property. Two, if they have kids, they will have to have a parenting plan completed, with the appropriate child support under the Tennessee Child Support Guidelines.  If the two parties agree to all of this, a civilian lawyer can file the paperwork as an irreconcilable divorce and have the couple divorced in about 90 days.

Although some Tennessee Counties require testimony for an uncontested divorce, where the parties come in and testify that they will be unable to reconcile, this testimony can normally be accomplished by the servicemember through the use of interrogatories.  Interrogatories are a series of sworn written question and answers that are presented to the court.  The judge has the ability to accept this interrogatories instead of using live testimony.

The one issue that can develop is that getting the paperwork back and forth to the deployed soldier can add additional time to the entire process.  With the use of email, this can keep things going at a quick clip.  Generally, the mail from Iraq takes seven to ten days to get here if our clients need to mail us sworn originals.

Lawyers and servicemembers do need to be careful about the timing of filing for divorce.  The Servicemember is protected from many aspects of divorce under the Servicemembers Civil Relief Act.  The SCRA protects soldiers from final judgement while they are deployed, although many temporary hearings are authorized despite their deployment.  This is why the soldier must be careful not to “make an appearance” before the court.  This can be done by filing the original complaint for divorce or by filing a response or counter-complaint.  Once the soldier is in front of the judge, he may have to pay child support or spousal support despite being deployed.

For contested divorces, where there must be a trial, much of the work of divorce, the discovery aspects can be completed while the soldier is in Iraq.  Many of my special forces clients go and come back throughout the pendency of the divorce.  But, for soldiers who are not able to participate in a contested divorce, they will probably be forced to sit and wait for redeployment.

Divorce Deposition Overview with 15 hints

I am an attorney that practices law in Middle Tennessee.

In a divorce, one of the tools for discovery is the use of depositions.  When a lawyer deposes a witness, he or she is calling the witness to testify in the presence of a court reporter.  The witness is sworn in and is required to answer truthfully under oath.  The testimony given under oath can later be transcribed by the court reporter and turned into a written, word for word, document that can be used to later impeach the witness or for entry as evidence. If the case goes to trial and your testimony at trial differs from your deposition testimony, the deposition can be used by opposing counsel to cross-examine you.  Any part of your deposition or your spouse’s deposition can be read by opposing counsel at the final hearing.  Careful what you say. The court reporter is generally pretty pricey and can be a major expense depending on how long the deposition runs.

Many lawyers feel that in a simple divorce a deposition is too costly for its effectiveness.  Many times the lawyer can get most of the same information from the use of interrogatories or by calling other witnesses to impeach the opposing party.  When the client does not have a lot of money for attorney fees or for the court reporter, the lawyer may want to forego deposing the opposing party.

Generally, the deposition will be fairly anti-climactic.  For the most part, the lawyer will be trying to get the opposing party to lock in their answer.  This prevents some lying on the stand later at trial.  This is one of the main reasons that I personally like to do depositions in most of my cases.  The deposition allows me to get a good look at the others sides position for trial.  Although, obviously, my own deposition questions will key the other side to my defenses, themes and strategies.  For me, the benefits will outweigh most of the negatives.

The more issues in a divorce, the more likely that  you will need to have a deposition.

The deposition will start with the questioning lawyer running through a set of questions to determining the deposed parties ability to answer questions.  These will be standard questions related to truthfulness and ability to answer truthfully.

Then, the meat of the deposition will begin. Here are some helpful hints to remember prior to the deposition.

1. Review your case with your attorney prior to the deposition.  Review any case notes you have.

2. While being deposed, don’t worry if your attorney doesn’t object very much.  This is discovery and most of what is asked will be relevant and you will have to answer the questions.

3.  After the deposition, review the transcript and make corrections.

4.  Don’t be disappointed if your attorney does not ask questions.  The deposition is for the other side.  Remember, they want to catch you in a lie, nail down the facts and stick you to your statements.

5.  Your deposition will also help both sides for settlement purposes.

6. Remember if your facts or story changes later at trial, the other side is going to use the deposition against you.

7.  Tell the truth

8. Give straightforward answers.

9. Don’t evaluate your answers for trial.

10. Listen carefully and answer carefully.

11.  Take your time, remember you can tell your attorney you need a break or you can stop the deposition to talk to your attorney

12.  Speak deliberately and clearly for the record

13. Don’t guess and keep your testimony limited

14.  Do not joke with the other attorney, lose your temper or spar with the other attorney

15.  Dress appropriately in casual business dress.

Online Divorce Packets in Tennessee

I am an attorney that practices law in Middle Tennessee.  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, most divorces are complex and require the hiring of a lawyer.

From my initial disclaimer, you can probably tell that I am generally pretty wary of recommending that people do their own divorces in Tennessee.  Tennessee is a state that generally has fairly complex divorce proceedings procedurally. However, the Tennessee Supreme Court has a website and approved forms for those seeking to file their own divorce.  Check it out by clicking this link.

Some states, usually West Coast states, have check the block divorces.  This means that the average person who wants to get a divorce can get standard forms from the court in their state and fill out the forms, turn them in and get an uncontested divorce.  With a filing fee, and agreement between the parties, they generally do not need a lawyer and can get through the entire process, quickly and easily.

That is generally not the case in Tennessee.  The divorce process starts with a complaint for divorce.   The complaint is a document that had specific requirements set out by Tennessee Statue and to properly fill out the complaint requires either knowledge of the law or help from an online service.  Obviously, my recommendation is to use a lawyer, but when finances become a problem or the divorce is very simple, the parties my want to try and file the divorce pro se.

A pro se divorce is a divorce where the parties do the divorce themselves.  Generally, this is an uncontested divorce where the parties agree to the terms of the divorce.  As I have stated prior to this, an uncontested divorce requires a marital dissolution agreement, which is an agreement on how to divide marital property.  If there are children involved, the parties need to work out a parenting plan, which includes a schedule for visitation, designation of primary residential custodian, and child support.

In order to do the MDA and parenting plan without the help of the lawyer, the parties need to have some understanding of what a parenting plan and MDA look like.  As divorces become more expensive, online divorce services that create divorce packets for people will become much more prolific as time goes on.

The problem in Tennessee is that in order to get by a judge and have him grant an uncontested divorce it must meet his or her specific requirements.  Essentially, in Tennessee, the problem is that from County to County and Judge to Judge, the requirements for an uncontested divorce can be different.  In some counties, in order to get divorced, the parties have to testify as to grounds for divorce.  In other counties, there needs to be a Notice of Hearing to set the final hearing, but then the final decree is signed behind closed doors.  Some judges will allow a deviation in the child support guidelines and others will not.  Some judges are extremely lenient towards the pro se litigant, others are not.

This diversity in Counties, Courts and Judges creates a mine field when a person attempts to go online and buy a generic online divorce packet.  So, if you decide you are going to try to do your divorce by yourself, be very careful.  Call the local court clerk and see if they will give some advice on what exactly you will need to do.

The major pitfall that happens here in Montgomery County on a pro se divorce is that the parties do not know how to do the child support calculation.  They will file all of the paperwork and forget to do a child support worksheet or they will make an agreement that does not include child support.

The Divorce Trial

I am an attorney that practices law in Middle Tennessee.  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.

The culmination of a contested divorce is the trial itself.  Many times the attorney and the client have worked for months and months to get ready for the trial.  Discovery has been conducted.  The parties have usually exchanged interrogatories and done depositions.  Mediation has failed. Motions have long since angered both parties.

The trial itself is both the fulfillment and the most anti-climatic moment for most of my clients.

The client for the most part is expecting the trial to be a cathartic moment when all the hurts, shattered dreams, and wrongs will be righted and judged.  Unfortunately, at least in Middle Tennessee, this is not what happens at the trial.

The Divorce Trial Judge performs primarily and economic function.  That function is to divide the the marital property that the couple has acquired throughout the time that the couple has been married.  Also, the judge must determine, through the creation of a permanent parenting plan, how to create a visitation plan, with child support, that is in the best interest of the children. Finally, in a contested divorce, the Judge must determine the relative fault of the parties.  Generally, fault seems to be more of an after-thought, than the primary purpose of the divorce trial.

These two main functions, economic division and child division, are fairly mundane decisions.  For the parties, generally, the economics are the least of their worries.  Granted this might not be the case for those that are financially well off, but for most parties to a divorce, they can live with whatever the judge determines.

The issues with the children are generally more explosive, but at the same time, the real question is less about who done who wrong, than it is about what is good for the kids.  So, who slept with whom is not as relevant as who gets the kids to the bus on time.  I once heard a judge say, “she may be a slut, but she takes good care of the kids.”  Of course, this same mother ended up getting custody.

So, for the clients who want to finger point, it is sometimes hard to hear the advice of their lawyer while prepping for trial.  I generally prep my clients by telling them that we won’t spend a lot of time talking about fault.  Unless it is relevant to property division, say alimony and attorney fees, or the kids are being adversely effected by the adultery or inappropriate marital conduct, we are not going to do anything more than prove that the parties need to be divorced.  The rest of the time, the client will have to testify to property division and what is in the best interest of the children.

That’s a bummer when you want to talk about how you been done wrong, but it is the best way to get what you want out of the judge.  I find the best revenge for all those wrongs is taking money and getting the best visitation plan possible.