The marriage is over but the divorce lingers on. Perhaps you are one who has now reached a high level of frustration because you still can’t get on with your life, because you and your ex-spouse are deadlocked on every issue, and because your divorce is dragging along at a snail’s pace. Actually, your consternation may be justified. The prolongation of divorce proceedings is both financially ruinous and emotionally devastating. And you shouldn’t have to endure it forever.
In Tennessee the procedure for dissolution of marriage is pretty straightforward. A no-fault divorce based on irreconcilable differences with no minor children involved has a minimum statutory waiting period of 60 days (90 days if minor children are involved.) This uncontested divorce process should be completed within one year and consists of four primary steps: 1) File a petition for divorce with the court, 2) Prepare a Marital Dissolution Agreement, 3) Agree on a Permanent Parenting Plan if minor children are involved, and 4) Schedule a final hearing in court. The procedure for a contested divorce, on the other hand, can take up to two years and beyond to finalize simply because of the filing of motions and counter motions, discovery (interrogatives, fact finding, and depositions), court ordered mediation, or multiple hearings and a backlog of court cases.
And even though a contested divorce by its very acrimonious nature takes longer to resolve, it is wise to be aware of certain mindsets and external influences that can turn a routine process into a never-ending nightmare. Below are some bumps in the road that can derail a successful, timely divorce resolution.
REFUSAL TO COMPROMISE
An “I’m going to win at all cost” attitude doesn’t serve anyone well. Realistically, it is probable that neither party will get everything he or she wants in the divorce. Pick your battles, consider rational alternatives, and choose areas in which you might be willing to negotiate. Avoid using the courtroom as an arena where you can “finger point”, out-strategize and demoralize your spouse. Judges don’t take kindly to spousal attack, accusations, and constant bickering.
IT’S ALL ABOUT THE MONEY
Very few people find their “pot of gold” at the end of a divorce. If you reside in one of the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), both spouses are considered equal owners of all marital property, and a 50-50 split is the general rule. In a common property state such as Tennessee, the court will determine a fair or equitable division of marital property according to certain variables. Most judges will begin by awarding 50% of the marriage assets to each party and adjust that distribution based upon evidence presented. If you believe that your spouse is hiding assets, then you and your attorney must act accordingly. Otherwise, an extended fight over money or ownership interest in a business is expensive and you may not be rewarded accordingly. Years of fighting the good fight over money can eventually chew up a large percentage of available wealth.
ONE SPOUSE DRAGS FEET
An unwillingness to “let go” can delay divorce proceedings and make the process even more painful. A less-motivated party may procrastinate in responding to motions, postpone court hearings, and reject even generous settlement offers. At times it is prudent to step back and allow the unwilling party time to emotionally adjust. However, eventually, the process just has to be pushed along. Reality is that a spouse who is determined to divorce will ultimately prevail.
A custody battle is the single most emotional reason for perpetuating divorce issues and will create havoc with the divorce process. Hostilities escalate when one parent or the other attempts to use the children as pawns in order to gain leverage in financial matters, child visitation, or control over mutual parenting practices. If allegations of mental illness, substance abuse or emotional/physical abuse are made in a high-conflict divorce, a forensic psychologist may be appointed by the court to do an evaluation of both parents and the children. A judge may also utilize the services of a guardian ad litem (“GAL”) to help determine which parent should have primary residential responsibility. The GAL’s job is to act as an advocate for the children. He or she will interview people who come in contact with the children, prepare a report for the judge, and perhaps testify at trial. An independent psychologist may also be employed to help the children through this traumatic chapter in their lives. The undertaking of experts who attempt to resolve custody battles is lengthy and expensive and can delay the final divorce decree for a significant period of time.
One of the most insidious obstructions to an expedient divorce is the involvement of third parties. Third parties take on many faces–they may be relatives, lovers, close friends, persons with an axe to grind, someone who is seeking a “cause d’jour”, or an individual who has a vested interest in the outcome of financial disposition, child visitation, or primary residential issues. (Grandparents are often dragged into the fray with the best of intentions because of a genuine concern for their grandchildren’s welfare.) Third parties may affect the outcome of a divorce by offering advice, testifying, or providing significant financial support. Many times their involvement blindsides the opposing spouse. If a divorce drags on interminably, you should always bear in mind that the causative factor could be third party intervention.
MODIFICATIONS AND APPEALS
And just when you thought it was over—here it comes again. After a trial has taken place and a court order has been signed that covers all the divorce issues, either party may file an a post-divorce modification or an appeal.
Post-divorce modifications are usually filed in order to change the terms of alimony, child custody, child support, visitation, or parental relocations. Modification may occur when there is a substantial change in circumstances from the time that the original order was entered. A judge (or parenting plan) will often require that the two parties involved attend mediation prior to a modification hearing. Post-divorce modifications may be concluded expeditiously or drag on for a lengthy period of time.
A Notice of Appeal must be filed within 30 days of the trial judge’s order. The purpose of such an appeal is to determine whether the judge made a legal error that affected the outcome of the trial. If the appellate court reverses the original judge’s order, then the matter will likely be sent back to the trial court for further proceedings. The appellate process can take a year or longer to complete.
So what can you do if you find yourself mired in chaos and divorce limbo? First, reassess your goals to determine if they are viable. Second, be flexible and choose your battles carefully. Third, consider the factors above that may be true impediments to divorce resolution. In addition, and most importantly, align yourself with a skillful family law attorney who has your best interests at heart, who can offer sound counsel, and who will be your forceful advocate as you navigate through the roadblocks of divorce. Our Cole Law Group family law attorneys in Nashville have the knowledge and experience to help resolve the most highly contested divorces. Contact us today at (615) 490-6020 to schedule a consultation.