Divorce Law Basics
Lawyers label divorce cases according to the complexity of issues that must be resolved prior to the granting of a decree and/or to the degree of contention that exists between the two opposing parties. An uncontested divorce is one in which both spouses seek a divorce and agree on all divorce related matters. A contested divorce is a case where one of the spouses does not want a divorce or where the spouses are unable to agree on all the issues of the case. A complex divorce case is a contested divorce where many issues are in dispute.
Important considerations in a divorce may include: alimony¹, a parenting plan and child support (when there are minor children), the division of personal property (such as furniture, cars, firearms, etc.), payment of attorney’s fees, marital debt, division of real property, taxes, and other financial considerations. Every case is unique, and significant issues will vary based upon the complexity of the marital estate and the personal goals of each spouse. Speaking with an attorney before filing for divorce can help someone who is considering divorce determine what issues may or may not be significant to him or to her.
Lifecycle of a Divorce Case
A divorce case begins with one of the spouses (the plaintiff) filing for divorce. Divorces are regulated by state law. Under Tennessee law, there is a statutory basis for divorce that must be proven for a court to award a divorce to the parties.² After the plaintiff files for divorce, the opposing spouse (the defendant) will be served with a copy of the complaint and a summons. Upon receiving the summons, the defendant should file an answer.
At this point the process of discovery may begin. Discovery is the process of finding relevant information pertaining to the divorce. Relevant discovery is often financial in nature, or it may include issues regarding parenting and children, and should include facts that would support grounds to grant the divorce.
If the parties agree on all relevant issues, each will sign a Marital Dissolution Agreement (MDA) agreeing to the divorce and file it with the court along with a motion to set for final hearing. At the final hearing, the court will listen to testimony that establishes who the parties are, on what grounds they are seeking a divorce, and review the submitted documents. If the parties satisfy all legal requirements, then the court will approve the divorce and sign a final divorce decree.
The county courts in Tennessee have differing approaches regarding mediation in divorce cases. In many counties, mediation is required under the local rules or required as a matter of practice by each judge. Other counties do not require mediation yet encourage it. Judges are generally supportive of mediation because they are often quite busy with numerous cases on their dockets, and many cases are likely hung up on a small number of issues that could be settled without a trial. In many cases, even if mediation is unsuccessful, it may still reduce the length of the trial as the parties may stipulate or agree on some of the previously contested issues.
If the parties cannot agree to a settlement, then the case will go to trial. At trial, each side will attempt to prove their case by providing relevant evidence about all issues in dispute. Trial can be a time consuming and expensive process in divorce cases.
Mediation involves a neutral third party helping the two parties come to an agreement and resolve the case.³ Mediators are often, yet not always, attorneys. In my experience, the best divorce mediators are attorneys that have practiced family law in the county where the case is assigned and are familiar with the judge assigned to the case. This is important because that mediator can then add value to the discussion by giving each side a realistic assessment of how the court will likely see any disputed issues if the case were to go to trial. The mediator’s job is to get both sides to compromise enough to reach a deal. If a mediation is successful, both sides may leave the mediation feeling a bit disappointed that they did not get everything they wanted. This is to be expected because, if the spouses had agreed to compromise, they could have filed an uncontested divorce or negotiated an agreement without the time and expense of a mediation.
Mediation is a straightforward process. Each spouse prepares a statement for the mediator to review before mediation that gives a brief history of relevant facts, discusses what is in dispute, and makes arguments for why those disputes should be resolved in his or her favor. Before the mediation occurs, the mediator will review all information that has been submitted. During the mediation, each party is assigned to separate rooms. The mediator will then introduce herself or himself to the parties separately and establish expectations. The mediator will determine what the opening offer of the mediation is and then go room to room and work with the parties to reach a compromise. The mediator will continue working with each of the parties until the case is resolved, one of the parties leaves the mediation, or the mediator declares an impasse.
An effective mediator is good at exerting a bit of pressure to keep the negotiations flowing and avoid a stalemate. Many common negotiation techniques may be employed to reach a creative solution. This includes asking the parties to list the issues that are most to least important to them, logrolling, informing the parties what law applies to each issue, making persuasive arguments citing to evidence that a judge would likely consider important, and others.
When might be the best time for Mediation?
Each case is different. In some cases when there are few contested issues, an earlier mediation is best. This is true because, if little is in dispute, then a lengthy discovery process is an unnecessary litigation expense that should be avoided. On the other hand, perhaps in a case where one of the spouses is unable to determine important financial information (such as real property owned by the opposing spouse, the opposing spouse’s ownership interest in companies or stock, etc.), then discovery is important for that spouse to have an accounting of what assets exist in order to understand what outcome would be fair and equitable under the circumstances. Also, if the parties cannot agree on important considerations regarding the children, mediation may not be practical until closer to trial.
Mediation can be an effective way to resolve many divorce cases without the additional time and expense a trial would incur. Our skilled and experienced divorce attorneys at Cole Law Group will have a strategic plan and advise you if or when you should go to mediation. We have successfully represented many clients in mediation, thereby avoiding lengthy and expensive trials. If you are about to enter divorce proceedings, give us a call at (615) 490-6020. We are here to help you resolve or litigate your divorce.
About the Author
Paul E. Tennison is an associate attorney with Cole Law Group, where he aggressively advocates on behalf of clients in a broad range of civil legal disputes including Divorce, Military Divorce, Child Custody, and Military Law matters. Paul is a West Point and Vanderbilt Law graduate who has over nine years of management, human resources, and leadership experience in the United States Army. He continues to serve our country as a captain in the Tennessee Army National Guard.
1 Tennessee law includes several types of alimony: “The court may award rehabilitative alimony, alimony in futuro, also known as periodic alimony, transitional alimony, or alimony in solido, also known as lump sum alimony or a combination of these…” Tenn. Code Ann. § 36-5-121.
2 See Tenn. Code Ann. § 36-4-101.
3 See https://www.tncourts.gov/programs/mediation/resources-public This website includes Mediation resources for the public including answers to FAQs, a Parents guide to Mediation, and other helpful resources.