Protecting Your Rights and Ensuring Fairness

Equal protection under the law and fundamental fairness are bedrocks of the American justice system. Whether you are going through a divorce with children, a divorce without children, or a custody or child support dispute with the other parent of your children, clients are often correctly concerned about protecting their rights and ensuring fairness in the legal process. In family law cases, there are often no "winners," and in cases involving children, protecting the best interests of the children throughout the legal process is of paramount importance. Although it is impossible to cover all the issues related to protecting your rights and ensuring fairness in the family law system in Tennessee courts in this article, there are several things you can do to improve the prospect of reaching a fair and equitable resolution to your case based on the protections Tennessee law affords. This article outlines some of the practical considerations and steps to take in order to put your best foot forward in your family law case in Tennessee.

In Tennessee, there are five different issues that a court must resolve for divorcing parents before the marriage can be terminated:

1. Grounds for divorce
2. Child custody
3. Child support
4. Equitable distribution of marital property
5. Alimony

Many people throughout Tennessee do not have children with their spouse but are nevertheless confronted with divorce. For married individuals without children, a Tennessee court will still have to resolve the issues of grounds for divorce, equitable distribution of marital property, and alimony. In other words, child custody and child support are non-issues for divorcing couples without children. In certain rare instances, Tennessee also may not have jurisdiction to decide the issues of child custody or child support even though the divorcing couple has children; in these rare instances, a Tennessee divorce court will still have to resolve the issues of grounds for divorce, equitable distribution of marital property, and alimony. As discussed in more detail below, even in cases without children, it is imperative that you work with an experienced family law attorney to gather all the necessary evidence and information to ensure your day in court is based on the facts and the law, and not unsubstantiated allegations.

Tennessee statutory law currently provides fifteen (15) different grounds for divorce from your spouse. Broadly speaking, grounds for divorce are divided into two different categories: (1) fault-based grounds for divorce; and (2) no-fault grounds for divorce. Fault-based grounds include adultery, inappropriate marital conduct, habitual drunkenness or abuse of narcotic drugs, abandonment, and others. The most common no-fault ground for divorce in Tennessee is irreconcilable differences. In order for divorcing spouses to successfully utilize irreconcilable differences as a no-fault ground for divorce, they will have to reach an agreement on all issues that must be resolved in the divorce, including property division, equitable distribution of marital property, and alimony. In divorce cases with children, spouses must also agree to a child custody and child support arrangement in order to successfully use irreconcilable differences as a ground for divorce. Generally speaking, "uncontested" divorces are usually those where the ground for divorce is irreconcilable differences.

If a divorcing spouse is not interested in pursuing irreconcilable differences as a ground for divorce, or if a divorcing spouse is not able to use irreconcilable differences due to a lack of an agreement with the other spouse, then a fault-based ground for divorce must be used. For a divorcing spouse to be successful in proving a fault-based ground for divorce, he or she will have to prove their allegations by a preponderance of the evidence (i.e., that the allegations are more likely than not true).

If you are experiencing or anticipating divorce and believe you will have to use a fault-based ground for divorce in the process, it is important to lawfully capture and preserve evidence of your spouse's marital fault. For example, if you file for divorce and allege that you are entitled to a divorce on the grounds that your spouse has committed adultery, but you are unable to ultimately produce any evidence of an affair, you will likely fail in proving your basis for divorce at trial. Given that marital fault often has bearing on other issues in the case, such as whether to award alimony (and, if so, the type, duration, and amount), it is imperative that you lawfully obtain and preserve evidence of your spouse's marital fault in order to fully protect your rights and ensure your case is fully and fairly heard by the Tennessee court.

In Tennessee, child support is generally calculated using the Tennessee Child Support Guidelines. Although there are many nuances and exceptions that are beyond the scope of this article, it is important to understand that child support is fundamentally the result of a mathematical calculation. Like any calculation performed on a calculator, the inputs into the child support calculation determine the output.

In Tennessee the two most important aspects of calculating child support are generally: (1) the incomes of each parent; and (2) the number of days of parenting time each parent has with the children during each calendar year. Exercising more days of parenting time with the children than the other parent will generally result in a greater award of child support for the parent exercising that greater portion of parenting time. Similarly, the greater the income disparity between the two parents, the more likely the child support calculation will reflect a larger child support obligation for the higher-earning parent. In cases where both parents have similar incomes and exercise equal or similar amounts of parenting time, it is not uncommon for the child support obligation to be very small or even negligible.

When it comes to ensuring fairness in setting child support, it is paramount that each spouse's income be calculated accurately and based on documentation that clearly establishes the actual income of each parent. Bank records, pay stubs, tax returns, business records, and other documents are key to ensuring that the court accurately and fairly sets child support based on the Tennessee Child Support Guidelines and the other dictates of Tennessee law. If you anticipate that child support could become a contested issue in your case, it is vital that you gather all your financial records and other evidence of your income to provide to your attorney and, eventually, the court, to rebut any allegations that you make more money than you actually do. Likewise, if you do not have access to these documents for your spouse or the other parent of your children, then it is crucial for you to confer with your attorney and use the tools of the discovery process to obtain these documents and information from the other parent in your case. These tools can include the use of subpoenas, interrogatories, requests for production of documents, depositions, and more. Ultimately, if you are not able to accurately prove the income of both parents using documentation and other evidence at trial, you will be at risk of your rights not being fully protected in the child support calculation, and you may end up with a child support order that is not based on the actual incomes of the parties and is not what it should have been if the accurate information had been presented. In Tennessee, collecting and presenting evidence of each parent's income is critical to protecting your rights and ensuring fairness as it pertains to setting child support.

Under Tennessee law, child custody is determined based on a court's finding of what is in the best interests of the children. In making this determination, Tennessee statutory law requires the trial judge to consider sixteen (16) different factors. These factors include the love, affection, and emotional ties existing between each parent and the children, the emotional needs and developmental level of the children, the strength, nature, and stability of the children's relationship with each parent (including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the children), and many more.

Importantly, each party's arguments pertaining to why the statutory factors weigh in their favor (and therefore custody should be awarded to them) need to be supported and substantiated with evidence. While your testimony can often be a critical part of the evidence in a trial, it is imperative that you work with your attorney to collect all applicable evidence to support and substantiate your position prior to trial. If you do not collect the necessary evidence and work with your attorney to properly present your case at trial, you run the risk of your rights not being protected when the court makes its custody determination. Although the trial judge exercises a great deal of discretion when determining child custody in Tennessee, the best way to ensure fairness in the legal process of determining child custody is to work with your attorney to collect the necessary evidence throughout your case and then present that evidence appropriately and effectively at trial.

Tennessee law requires the equitable distribution of marital property in any divorce. While property division must occur in divorce, it cannot occur in child custody or child support cases between unmarried parents. As with child custody, Tennessee statutory law requires a trial court to consider over a dozen different factors in determining how to equitably divide marital property. These factors include the duration of the marriage, the value of the separate property of each party, and the economic circumstances of each party at the time the division of property is to become effective. Prior to the distribution of any property in divorce, property must first be categorized by the trial court as "marital" or "separate" property.

Property division can be an extremely important issue for divorcing couples – particularly in longer-term marriages where the couple has accumulated substantial property over a period of many years. Due to the nature of property division, it is extremely important to work with a knowledgeable and competent attorney who understands the intricacies of your marital estate and can help you obtain the necessary evidence to best advance your position at trial.

Unlike some of the other categories discussed above, Tennessee trial judges exercise a greater degree of discretion in determining the amount, duration, and type of alimony, if any. Tennessee statutory law currently requires trial judges to consider twelve (12) different factors in determining whether to award alimony and, if so, the nature, amount, and duration of the alimony. As with the other issues discussed above, the collection and presentation of evidence is extremely important to ensuring that any alimony is fairly determined by the Tennessee court. In order to ensure that the fair determination of whether to award alimony and, if so, the nature, amount, and duration of the alimony, it is imperative to collect and present the necessary evidence in relation to each of the different statutory factors. This is particularly important given the increased degree of discretion the trial judge has in making alimony determinations. Simply put – the more evidence you have to support your position, the better chance you will protect your rights and ensure a fair outcome based upon Tennessee law.

It should be noted that alimony is only potentially available in divorce – family law disputes involving child custody and / or child support between unmarried parents cannot result in an award of alimony under Tennessee law.

Although this article only scratches the surface of the necessary steps to protecting your rights and ensuring fairness in Tennessee family law litigation, one overarching principle is clear: it is vital that you secure knowledgeable, experienced, and zealous legal representation in your case. For better or worse, the reality is that the legal system is complicated and often extremely difficult to successfully navigate without the assistance of an attorney. When issues such as child custody, child support, property division, and alimony are at stake in your case, the outcome of your case could have life-changing results that will affect your ability to raise your children or secure your financial future for decades to come.

If you are facing divorce or a custody or child support dispute, you need to act to protect your rights and ensure fairness in the legal process. Take the first step today, and call Cole Law Group at (615) 490-6020 to schedule a consultation with one of our experienced and knowledgeable Nashville family law attorneys.

Property Division in Tennessee Divorce
The Gift or Curse of Alimony in TN