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Spousal support, as it is now commonly called, used to be known as "alimony." Spousal support is not mandatory in most states, but can be ordered by a judge under certain circumstances. State laws differ from state to state when it comes to the issue of spousal support. Your attorney will be able to advise you on how it is normally handled in your state. One issue that most states take into consideration is the earning ability of the wife, whether she was a stay at home mom, and how much she contributed to her husband's career. As a general rule a wife is considered a dependent spouse if she makes less money that her husband and is substantially dependent upon him for her maintenance and support; however, this applies to either a wife or husband.
If a spouse will face hardships without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage.
However, other factors also need to be considered. For example, spousal support should most likely not be considered if:
You and your spouse can dismiss the divorce after the papers have been filed. Simply request a dismissal form from the county clerk anytime before a judgment has been entered. If no response has been filed, the petitioner alone can file the dismissal form. If a response has been filed, both spouses must sign the dismissal form.
The following are deductions typically allowed against gross income:
Under most state laws, a divorce (or "dissolution") action must be filed and decided in court. Many states have a "no-fault divorce" policy. In other words, the courts are not concerned with which spouse was guilty of marital misconduct. Tennessee is not a "no-fault" state! "Fault" is a factor when calculating spousal support, but not in property division.
The following legal requirements are necessary to file for divorce in most states:
The spouse filing for divorce must have resided in the state and county for a certain period. Six months is a common state requirement, and three months is typical at the county level. Tennessee requires six months residency in order to file and have proper jurisdiction; however, in some rare circumstances Tennessee may obtain emergency jurisdiction within a shorter time period.
Most states have a mandatory waiting period from the filing to the finalization of a divorce. In other words, you cannot file and finalize a divorce on the same day. The average waiting period is 6 months but can be anywhere from 0 to 12 months. After the waiting period, the divorce is finalized and both parties are free to remarry. Tennessee requires 60 days from the time the Marital Dissolution Agreement is filed when there are no children from the marriage and 90 days if there were children conceived within the marriage.
States generally recognize two legal grounds for divorce: (1.) irreconcilable differences and (2.) separation. "Irreconcilable differences" simply means there are marital difficulties that cannot be reconciled and have led to the permanent breakdown of the marriage. Tennessee recognizes several grounds for divorce such as habitual drunkenness, adultery, inappropriate marital conduct, and several others.
Whether or not you can sue for any "grounds" depends on what state you live in. Most states have adopted no-fault divorce laws meaning a divorce action can be brought against a spouse without the need for a reason. Be sure to check with a local attorney to find out what your state's laws are concerning grounds for divorce.
On the other hand, if your spouse had cheated the negative behavior can come into play during divorce settlement negotiations. For instance, if a cheating husband/wife spends marital funds on the other woman/man the courts will take this into consideration when considering how marital assets are divided. A competent divorce attorney will be able to answer any questions you have about how your local court deals with such situations.
An action for divorce must be filed with the proper court. The appropriate court is typically in the county where either the wife or husband has resided for at least 6 months prior to filing for divorce.
The court will take into consideration what they feel is in the "child's best interest." The court will take into consideration a number of issues when considering custody. Issues such as who the child is living with at present, the relationship with each parent, and a parent's ability to care for and provide for the child; however, most courts are moving toward equal or shared parenting.
In an uncontested divorce, the parents must decide on the custody of any minor children. Custody is divided into physical custody (where will the children live) and legal custody (who will make important decisions regarding the children's health, education, etc.). Both physical and legal custody can be either joint or sole. Even if one parent will have sole physical custody, the other parent still has visitation rights, if requested. If custody and visitation are not agreed upon in Tennessee, the courts will utilize a list of fifteen factors to determine the "best interests of the child."
The cost of a divorce is determined by how complex the case is and whether or not the issues in the cases are contested. An uncontested divorce is naturally going to cost less than a contested divorce. In other words, the more adversarial the divorce, the more expensive the divorce will be in the long run. In addition to attorney fees, you will also have the expense of court filing fees and other expenses incurred during the divorce.
The filing fee for a divorce petition or complaint is approximately $200-$350 in most counties. These fees are collected by the government and are in addition to any service or legal fees. The filing fees are in addition to the amount charged by your attorney.
If your state laws require mediation, you and your spouse will be responsible for those costs. If there are large assets to split, a business to be valued, or property to be appraised, you may need to assistance of a divorce financial analysis. This is another expense you and your spouse will be responsible for.
A marital dissolution agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. These agreements usually cover property division, child custody, child plans, debt division, spousal support and any other relevant issues related to the divorce.
If the divorce is uncontested and a marital dissolution agreement is filed, only the petitioning spouse must go to court for the final hearing. In that case, only a few standard questions are asked in front of the judge before the judge rules on the final decree.
Disputes regarding the division of property, child custody, spousal support or any other terms of the divorce do not automatically require court intervention. In many cases, they can be resolved through arbitration, mediation or third-party negotiation (such as an attorney).
Most state laws have guidelines to determine child support payments. The payment amount is based on each parent's income and the amount of time he or she spends with the children. The guidelines also provide for add-on amounts for the following expenses:
Parents can increase or decrease the guideline amount if the following conditions are met:
Keep in mind that the judges presiding over divorce proceedings are the ultimate authority on child support decisions. They can deviate from the guidelines as they see fit.
No, Child Support and Visitation are two separate issues. If you withhold visitation you can be held in contempt of court. If your ex is not paying child support you should see an attorney who will advise you on how to recover the lost child support and to further insure that your spouse makes future child support payments.
No. If you withhold child support, you can be held in contempt of court. You should see an attorney who will be able to advise you on what steps you need to take to ensure visitation with your children and that your right to see and parent your children is no longer interfered with.
In community property states, accrued or vested retirement benefits are community property. This means they need to be divided in a divorce. Retirement benefits that fall under community property include military pensions, veteran's educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401(k) and 403K plans, etc.
Certain retirement benefits are not classified as community property. They include:
Regardless of the length of the marriage, retirement benefits should be discussed and settled. For example, the petition, marital settlement agreement and judgment should all provide either for the spouse's waiver of retirement benefits or the division of any such benefits. A spouse should waive retirement benefits only if that spouse's share is worth very little.
There are two options for dividing retirement benefits: (1) the present-day valuation buy-out, and (2) division into two accounts. In the former, the spouse without the retirement benefits takes the present-day value of his or her interest in the retirement benefit and trades it for something else of equal value, such as cash or other assets. Stock options and pension plans where a person must work for a certain number of years may be worth more than you think. It may be advisable to hire a professional pension actuary or appraiser before making a decision. This will cost $150 to $300, but could be well worth it.
When dividing a retirement account, you want to make sure you don't lose any tax advantages. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse. Please contact the retirement plan administrator or a qualified attorney for more information regarding QDROs.
An uncontested divorce is one in which both parties agree to the divorce and the terms of the settlement without going to trial. This does not mean there are no arguments or disputes between the spouses. It simply means the spouses reach an agreement without going to court and having a judge resolve contested issues.
Uncontested divorces move much faster through the court system and are therefore less expensive. In addition, bypassing the lengthy litigation and trial process tends to reduce hostility and allows the former spouses to move on with their lives more quickly.
On average, there is a zero to six month waiting period after the initial divorce petition is filed and served on the other spouse before a divorce becomes final. Tennessee requires 60 days from the time the Marital Dissolution Agreement is filed when there are no children from the marriage and 90 days if there were children conceived within the marriage. A judge may make a final ruling, or judgment, on the divorce prior to that date. This order will be effective immediately. However, the marriage is not finally dissolved, and the spouses may not re-marry, until after the waiting period.
During the period between the judge's order and the expiration of the waiting period, any action taken by either spouse is a separate act. In short, these decisions will no longer effect community property.
Of course, if a divorce cannot be resolved agreeably and requires litigation or a trial, it could take longer than six months to finalize.
Anyone can obtain a divorce whether his or her spouse wants one or not. In no-fault divorce states, all you have to do is file your petition for divorce. Some states have laws requiring a period of separation but, after that period a divorce can be obtained whether your spouse agrees to it or not.
There has to be a petition for divorce filed with your local court clerk. You can do this through a divorce attorney or you can do it Pro Se (without the benefit of an attorney). Once a petition for divorce is filed, your spouse will have a certain number of days in which to respond to the petition.
Once a petition has been filed, the court clerk will stamp it and give it a case number. Once it is given a case number and your spouse responds the court will set a date for either a hearing for temporary court orders or mediation.
In a legal separation, you remain married. In a divorce, the marriage is dissolved and any legal ties between the parties are broken by law.
All property is considered to be marital property unless it can be proven that it is separate property. Separate property is property owned by one spouse prior to the marriage, property that was inherited and never commingled, and property that was given as a gift to one spouse or the other.
Other issues that will be taken into consideration when dividing property are the earning power of each spouse, the expectation of a return on retirement benefits, contributions made by one spouse to the education or career development of the other spouse and the need of a custodial parent to stay in the marital home.
You need to protect yourself before, during, and after your divorce by filing a restraining order against your husband. In Tennessee, this is called an Order of Protection. The kind of assistance you can receive differs from state to state. There are state domestic abuse resources and programs available that you should take advantage of.
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