Articles Posted in High Asset Divorce

In preparation for a civil trial the attorneys for both parties have a period of time that is called the “discovery” phase, a process during which they try to ascertain all the facts about the case and document everything the other side might know. One of the devices used during discovery is the deposition. A deposition is basically your sworn answers to questioning by an attorney (the opposing attorney if you are one of the parties involved). Depositions usually take place in a conference room at an attorney’s office and are attended by both attorneys, a court reporter, the people who are suing or being sued, and/or witnesses. If you are the deponent in a deposition, you will be asked oral questions under oath. No judge will be present and the proceeding will be informal.

WHY DEPOSITIONS ARE HELD

Depositions are held for the following purposes:

All is fair in love and war…well, the judge may differ with this opinion. Many persons going through a divorce experience a euphoric feeling of freedom during the initial phase of the case. It can be exciting, right? A new chance at true love. That confidence booster you really needed. Or perhaps time to do those things you have always wanted to explore. However, the most important issue to realize at this stage of your “new-found freedom” is that you may want to decline the impulse to date until such a time the Court has ordered your divorce FINAL.

In Tennessee there are two types of grounds for divorce-fault, or no-fault. The no-fault grounds for divorce are “irreconcilable differences” (yes, the 1984 film starring Ryan O’Neal and Shelley Long was aptly titled for this situation) and “living in separate residences and not cohabiting as spouses for at least two years” (this ground applies only if the couple has no minor children). The fault grounds for divorce are a little more interesting, and some are very obvious. They include, but are not limited to impotence, bigamy, desertion of over one year, incarceration for a felony, attempting to take the other spouse’s life, pregnancy by another person without husband’s knowledge, habitual drunkenness or drug abuse after the marriage, inappropriate marital conduct, abandonment, and last but not least-adultery.

So, let’s think about this for a moment. Adultery is grounds for a “fault” divorce. When you and your spouse decided to end your marriage, your Complaint for Divorce stated the grounds as “irreconcilable differences.” Then-that aforementioned euphoric feeling of freedom enters. The juices are flowing. That attractive man or woman you have always wanted to talk to happens to be in line with you at the coffee shop. One thing leads to another and…BOOM, you are now seeing each other and dating. Sounds exciting, right? WRONG. You have now opened the door for your spouse (yes, you are still married at this point until the Court enters your Final Decree of Divorce) to amend his/her Complaint for Divorce to include grounds for adultery. Adultery is not defined within the Tennessee Code, but is widely accepted by the judiciary to mean sexual intercourse between a married person and a third party other than one’s spouse. An emotional affair, while not technically adultery, can still be considered inappropriate marital conduct, the catch-all fault ground for divorce in our state. Many people fall under the false-impression that merely dating or keeping company with someone is acceptable because his or her spouse will be hard-pressed to prove that actual sex has taken place; he or she is wrong. In this state it has long been held that it is unnecessary to have direct evidence of illicit intercourse and that adultery can be proven rather by a mere preponderance of circumstantial evidence.

As divorce rates increase and more couples forgo having children, the battle over who gets custody of the family pet, visitation schedules with the pet, and how support for the pet is allocated is becoming an increasingly hot topic. Many people treat their fur babies as part of the family. However, in most states during the divorce process it is customary for pets to be considered as mere property in the equitable distribution scheme. Today society is less accepting of such a practice and has begun petitioning the courts to take a more personal approach. Some judges are now making exceptions and expanding common law to allow for more preferential treatment of pets. However, case law on the topic is still sparse.

WHAT IS PETIMONY?

What separates pets from other inanimate personal property is the amount of care and maintenance that they require, i.e. veterinary bills, cost of food or special diet, grooming, etc. Some courts have therefore gone so far as to award “petimony” to the custodial owner of the pet. Petimony is an alimony-like payment or economic support by one spouse for the continuing care of an animal. It is different from spousal support, which is compensation awarded during the divorce process or for some period of time thereafter in order to help maintain the marital lifestyle of the former spouse. Petimony is also different from child support, because the child has a right to maintenance from his or her parents whereas a pet does not.

When initially speaking with an attorney in regard to obtaining a divorce, or immediately following retention of counsel, a husband or wife is usually advised to be wary of what he or she posts to social media sites. Such posts could potentially be used against the husband or wife if he or she admits to extramarital activities while separated, or the posts portray the spouse as a parent who is less capable of caring for the parties’ child(ren) (e.g. posts mentioning drug use or alcohol consumption).

However, are there instances in which social media sites could be of indispensable value to a husband or wife wishing to pursue marital dissolution? The answer is “yes” if you are on the “serving” side of the legal dispute.

The first step in obtaining a divorce from your spouse is to file a complaint for marital dissolution with the Court. Upon filing of this legal document with the Court, the complaint must be served upon the husband or wife, or put simply, a copy of the complaint must be given to the spouse. Yet there are many instances in which a spouse cannot be found. What method of service do you turn to if you are physically unable to locate your spouse? Typically, the solution is divorce by publication. This is a process in which you publish notice of your divorce proceeding in a newspaper of general circulation in the county of your spouse’s last known residence.