The Mediation Group of Tennessee, LLC Marietta Shipley, President

SUMMARY OF FAMILY LAW**

The following topics are arranged chronologically from the Filing of a divorce to the Conclusion of the divorce:

GENERAL CONSIDERATIONS

FILING FOR DIVORCE

The legal document that starts the proceeding is the Petition for Divorce or the Complaint. It also covers certain technical matters and asks the court for anything you might want. If you are filing on irreconcilable differences, the complaint does not need to be served on your spouse but can simply be handed to them or mailed to them. If possible, talk to your spouse about divorce before you file. It is hard to keep open lines of communication if your spouse has been surprised by the sheriff serving divorce papers on him or her at 4:00 A.M. (which is when the sheriff often serves papers

The person who files first is the plaintiff or petitioner. The other person is the defendant or respondent and that person must respond to your petition in a formal document known as an answer, if the complaint contains grounds for divorce. If there is an answer, it is often accompanied by a Countercomplaint. Again, if the intent is for mediation or collaborative law, the pleadings will end with just the complaint , the Marital Dissolution Agreement and Final Decree.

WAITING PERIOD

Irreconcilable differences divorce cannot be granted until at least sixty (60) days after filing if the parties have no children and ninety (90) days if they have children. This is a minimum interval. Once the Memorandum of Understanding and Parenting Plan are completed with the mediator, the attorneys may take a few weeks to finalize the last document and take you to court. Ask your attorney if there are special requirements in the filing court, so you have those items out of the way and don’t hold up the granting of the final divorce.

Remember, the waiting period for contested divorces is between nine (9) and twenty-four (24) months.

FAMILY AND POSSEE

Your well-meaning family and friends may offer you advice about your case. Frequently such advice is not accurate, and you should be cautious in following it. The facts surrounding your marriage, divorce, children, and property are unique and are different from any other case. The only thing your divorce and your Aunt Harriet's divorce may have in common is that you and your Aunt Harriet are related to each other.

EMOTIONS

If you are going through a divorce and you feel uncertain, insecure, or depressed, then you have a fairly normal problem. You may want some counseling for the problem.

Divorce is an unpleasant time at best. You will be beset by a range of emotions including, denial, anger, guilt, depression, fear, resignation, ambivalence, and frustration. Remember this is normally only temporary. Emotions can, however, prevent us from making the best decisions. It is helpful to speak with a counselor or in the collaborative practice cases, the mental health coach.

NEGOTIATIONS WITH YOUR SPOUSE

If you try to work something out with your spouse, the following are some useful pointers to remember:

Meet on neutral ground—Not at his office or at her mother's home, but some place where both parties will feel comfortable.

Put aside time—A reasonable amount of time should be set aside to deal with the issues. If you leave to answer a telephone call just as you almost have things worked out, you may find that things have fallen apart when you get back. On the other hand, do not leave the meeting time open-ended. A meeting without a deadline will drag on and issues will not get resolved.

Set an agenda—Decide what will be dealt with at the meeting. "This week we will we will discuss house."

Do not bog down. If you hit a point that gives you trouble, move on to something else and come back to the problem after you have resolved some other issues.

If your discussion turns into an argument either party has the right to end it, even if there is no rational reason. Sometimes emotions simply overcome us and we cannot continue to have a discussion.

If you and your spouse work out something and you make notes, write it down so we can incorporate these agreements into the eventual documents.

GROUNDS

Tennessee has two types of divorces: uncontested, (which are usually based on irreconcilable differences), and contested, (which require proof of grounds for divorce).

An irreconcilable differences divorce requires that the parties agree to be divorced. If you choose to do mediation, you will be filing on the grounds of irreconcilable differences. You must have a written Marital Dissolution Agreement that makes adequate and sufficient provisions in writing for the parental responsibility and support of the minor children of the marriage and makes a fair and equitable division of your property. The Marital Dissolution Agreement is the essence of an irreconcilable differences divorce (see Marital Dissolution Agreement section below).

A traditional contested divorce is a case in which the parties cannot agree on some point (property division, alimony, parental responsibility , child support, or attorney's fees) and must go to trial. The primary grounds for a contested divorce are :

Inappropriate marital conduct
Adultery
Habitual drunkenness or abuse of narcotic drugs that has worsened since the marriage
Living separately and apart for two (2) years with no minor children
Willful or malicious desertion for one (1) full year without a reasonable cause
Conviction of a felony

Recently the legislature amended the law and allowed parties to stipulate (agree) who is guilty of what grounds and inform the court of that stipulation.

LEGAL SEPARATION

Although legal separation is possible, the same difficulties arise as if you were completing a final divorce. The Marital Dissolution Agreement is named a Separation Agreement, which contains a division of property, provision for support, payment of debt, etc. If the parties enter into a legal separation, it may be converted to an absolute divorce after two years or upon the parties’ agreement.

MARITAL DISSOLUTION AGREEMENT

The primary document in an irreconcilable differences divorce is the the Marital Dissolution Agreement. In a mediation, the attorney for one of the parties will finalize this after receiving the Memorandum of Understanding from the mediator. You can include many things in your agreement, some of which are listed below:

Court cost and attorney's fees—Who pays?
Property—Who gets the house? Who gets the note? How does the equity get divided if it is sold?
Personal property—Who gets which car, what appliances, and what happens to the sofa in the den?
Retirement—What happens to any retirement benefits that have accrued?
Debts—Who pays what? Should the debts be paid off by refinancing?
Alimony—How much? How long?
Custody—Who gets which child? Should any aspects of custody be shared? The noncustodial parent may be the one who is a doctor and may be the one who should make medical decisions. Will joint custody work?
Child support—How much? How long? Who carries health or life insurance on children? Who gets to claim the children as income tax deductions? Private school or college tuition?
Visitation—Do you want a specific schedule or can you and your spouse work together on it?
Life insurance— Who is insured? Who is the beneficiary? Term or cash value? How much?
Health insurance— Who is covered? In many cases an employee's spouse can be covered up to thirty-six (36) months after the divorce by the employed spouse's insurance for a small additional premium.
Who receives the royalties?

In the next part of the summary, there is greater detail.

DOMESTIC VIOLENCE AND ABUSE

Violence within the family (domestic violence) is much more common than many of us believe. Each year, this occurs in 3 to 4 million families. Divorces often bring on an increase in such violence; 50 percent of serious assaults occur at or after the point of separation or divorce.

If there has been any violence in your family, that is an issue that needs to come to the attention of the mediator or attorney immediately. An injunction or an Order of Protection may be needed to protect you or your children from future violence as it may affect how we approach any safety concerns in mediation or collaborative law.

If you are engaged in mediation, it is important to know whether there is ongoing abuse or
intimidation. We always have to be sure that all participants are safe. If necessary, we will stop the mediation or provide special provisions, so all parties remain safe.

INJUNCTIONS AND PROTECTIVE ORDERS

Injunctions and protective orders are orders of the court that are issued to prevent harm pending further hearings. The court will issue a standard injunction when the case is filed, enjoining both parties from changing insurance policies, moved accounts, selling properties, etc. unless there is agreement between the parties.

PARENTING ISSUES

CHILDREN

If you have children, the divorce will probably be as difficult for them as it is for you. Children will normally feel fear, confusion, guilt, depression, anger, and other emotions. Although you will be feeling these emotions too, you have a lifetime of experience to help you. When you speak with them, you need to take steps to ease the burden on your children. When parents start mediation or collaborative practice, they may often be living in the same house. If possible it is beneficial to plan the separation and the initial conversation with the children. [See appendix for helpful books as resources.]

The conversation involves how you tell them about the divorce and what you say about your spouse. Tell the children that the divorce is not their fault and that they will still have both parents. It is important that both parents are seen as a unit at this time. Most children will prefer to know where they will be living, whether they have to move their school, whether they will maintain their same friends etc. Thus you should have some likely answers to those questions. Their security is not so much about the house, but how they maintain their other relationships as well as the relationship with both parents. Children do not often like change but can adapt to new routines if the parents work at keeping those routines.

Remember that married or divorced, you are not a perfect parent. Love your children and do not obsess over your mistakes. Make a special effort to spend time with your children during this difficult time. Give them your full attention. Reassure them that both parents love them, even if you do not believe it. Give them extra love now—they need it. Although it is your divorce, the children’s needs come before yours. You may find that you or your co-parent may start to develop a different relationship with the children due to the responsibility of parenting the child without the other parent’s help. In most instances that it is a good thing. Parents who were only focused on their work may find a deepened relationship with their children due to their new responsibility. Parents who were focused only on the children may find some freedom in the new status, so they do not feel so stressed about shouldering the entire load of the children. Parents should both remember that there is no one way to parent, but communication between parents will help get over a lot of bumps in the road where children are concerned.

One resource is the seminar "Children Cope with Divorce." The COURT requires that you attend the course within 60 days of filing for divorce. I recommend that you take the seminar so that you can put its helpful advice into practice as early as possible. You an find a list of providers on the website, www.themediationgrouptenn.com

Depending on your circumstances, you may also want to alert your children's counselors and teachers to the family change so that they can be on the lookout for behavior changes. Counseling can help many children as they adapt to life after their parents separate. I will be glad to recommend a counselor if you want one.

If you are in a relationship with a new person, it is best to wait until the divorce is over to introduce the children to your new friend. It may confuse the children and it will definitely make your negotiations with your spouse more difficult.

CUSTODY OR PARENTING TIME - PARENTING PLAN

Generally parents who go through mediation or collaborative practice wish to be co-parents of their children. The amount of time each parent spends with the children depends on the circumstances of each family. What may work with your friends’ children or your sister-in-law’s children may not be best suited for your family. You need to consider past schedules, travel schedules of each parents, whether you plan to live near each other, wishes of each parent, flexibility with work schedules, future plans for employment of for additional education, and children’s wishes. Young children want to spend time with each parent frequently. To teenage children, divorcing parents are just a distraction to their lives and may often be resistant to moving back and forth frequently. On the other hand, if they are over 16, they can freely go between parent’s homes or can transport their younger siblings. Some parents consider “bird nesting” which keeps the marital home the principal home for the children and each parent moves in and out. There is no “normal.” It is an organic process that may change in weeks or months until it feels right for you as parents.

The statutory factors mirror what each family intuitively knows but might review for a more objective view. They include the following:

The love, affection and emotional ties existing between the parents and child;
Each parent’s past and potential for future parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.
The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
The stability of the family unit of the parents; The mental and physical health of the parents;
The home, school and community record of the child;
The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
Sometimes parents hear from other parents or colleagues that the more time they have the children the less child support they will pay. It is true that in the Parenting Plan, we count the number of days each parent has the child. Nonetheless, unless there is a great disparity between what each parent wishes, the effect is not great. It is better to really look what works for your children, rather than counting up days until you get to the end of the discussion.

After the initial discussion, we will develop a Parenting Plan, which will have to be approved by the court. This plan includes the day to day time with each parent, decisions about holidays, decisions the parties make together about co-parenting, child support and health insurance as well as how the plan will be modified in the future.

CHILD SUPPORT

In arriving at a fair amount of child support, we usually start with the Child Support Guidelines. Click here for a full copy of the Guidelines and the Tennessee Child Support (Calculator). The main variables are the parent's income and the time parents spend with the children. The income ratio is the biggest factor. Days with the children is the next most important. Medical expenses, insurance, educational costs are figured into the formula. The court can require support of a children only until the age of eighteen or until the child graduates with his or her regular high school class. There is no statutory requirement that parents pay for college, but most parents wish to discuss their plans. If there is agreement between parents, it will become a part of the agreement.

MARITAL DISSOLUTION AGREEMENT

PROPERTY DIVISION

Property includes houses, retirement plans, pensions, businesses, coin collections, royalties, furniture and personal property. . You should also consider that the legislature has set out criteria for alimony, child support, and property division. First, you must find and value the property . This may man an appraisal of a house, or at least use th tax assessor’s appraisal, Zillow or your friendly real estate comparisons with other properties in your neighborhood, or an agreed upon value. Business appraisals are very expensive. We also need to to determine whether a particular piece of property is separate property. . Separate property is usually acquired before the marriage or outside the marriage, such as by gift or inheritance. Marital property is usually acquired during the marriage. Marital property can include increases in separate property that occur during the marriage if your spouse contributed to its appreciation or preservation even if only indirectly.

Ordinarily we consider that marital property is split 50/50. However the statutory description is equitable and thus there are other considerations to take into account., such as :

Length of the marriage;
Age, health, skills, and abilities of the parties;
Contribution to the education or to the earning power of the other;
Relative ability of the parties to acquire property in the future;
Contribution to the value of the marital property or the separate property;
Amount of separate property owned by each spouse;
Premarital property and postmarital property; Financial conditions of each party;
Tax consequences; Social Security benefits;
Allowing the custodian and children to continue to live in the home permanently or for a period of time (most often until remarriage of the custodian or until the children turn eighteen);
And any other factors we deem appropriate.

Sometimes there are important tax issues to consider. Transfer of property (such as a bank account) from spouse to spouse during a divorce is usually not taxable, but transfer of income (for example, interest) from an asset is taxable. Be careful about capital gains.

All of these factors go into our consideration of the division of the marital property. The end result is a Memorandum of Understanding and finally a Marital Dissolution Agreement.

DEBTS

Debts are the other side of assets and must be dealt with in a divorce. During your marriage, most of your debts were probably incurred jointly. That means that both of you are responsible for the repayment of the debt. When the Marital Dissolution Agreement is signed, it will state who is to pay what debt. If we don’t have ready agreement, we can discuss the following factors.

Who made the original debt? For what purpose was the debt made?
Who received the benefit of the debt proceeds?
Who will receive as a part of the division of marital assets the particular asset (if any) connected with the debt? Who is better able to pay the debt?

Despite an agreement for one spouse to pay a debt that is in both parties' names, there can still be problems with the debt. If the party responsible for the debt does not pay the debt, the other party can still be sued for the debt. There will be a specific provision in the Marital Dissolution Agreement.

House mortgages may be a bit troublesome. If one spouse remains in the house, he/she may need a period of time to refinance the house in their own name. Sometimes the bank or mortgage company requires a period of time to be certain the other spouse is paying timely child support or alimony. There are many variations that may be iscussed. The goal is to disentangle the parties’ finances as much as possible.

LIFE INSURANCE

Life insurance is important for a number of reasons. In the Parenting Plan, a specific minimum amount must be included on the life of both parents. Usually this is a minimum of $100,000 to $150,000 with the other parent as beneficiary in trust for the children. The remaining portion of any existing or future policy can name another beneficiary following the divorce. Life insurance is also a means to guarantee the spouse will receive necessary alimony in the event of the other spouse’s death. Periodic alimony always ends at the paying spouse’s death.

There may also be cash value in the policies. If so, the cash value will be divided as with other properties.

TAXES

The general rules outlined in the next few paragraphs are intended to alert you to issues and provide some general information. You should always consult with the financial professional or before taking any final steps.

Subject to many qualifications, periodic alimony ( usually monthly) is deductible to the party paying it and taxable to the party receiving it. If you receive alimony you may need to make estimated quarterly tax payments. If you are employed you need to tell your employer about the divorce to change your tax filing status, which will increase your withholding.

Child support is not deductible to the party paying it or taxable to the party receiving it. Unless specifically addressed in your Decree, generally the custodial parent will be entitled to claim the dependency exemption on his or her income tax return. The custodial parent may execute I.R.S. Form 8332, releasing the dependency exemption to the noncustodial parent. There is also a child credit of $1000 for certain incomes up to age 16.

Generally, there is no tax gain or loss recognized as a result of the division of property between spouses upon divorce.

If your Decree provides that you and your former spouse will sell your jointly owned residence, you will each be responsible for reporting your portion of any capital gain. Capital gain is the profit resulting from the sale of capital investments, such as the marital real estate. If you are going to sell your home, make sure you consult your tax advisor to see if you qualify for this exemption.

Consider whether you will be filing singly or jointly, particularly if you are making an agreement within two or three months of the coming year. There is usually a clause in the Marital Dissolution Agreement that if the IRS audits past returns, the deficiency sill be the responsibility of the person who created it.

The impact of taxes can make a great difference in divorces. A mediator or collaborative attorney gives no specific tax advice. If you need tax advice, we must associate a tax lawyer or a certified public accountant in your case.

ALIMONY

Alimony is based upon the relative needs and resources of the parties.

There are many factors which determine alimony which are listed below, but primarily it depends on age, the disparity in income of the parties and the length of marriage. Please note that Fault is at Number 15 on the list. Even the most grievous wound a spouse can inflict on the other spouse does not eliminate the consideration of alimony.

Alimony is used in a variety of situations. Transitional Alimony is awarded when the court finds rehabilitation is not necessary, but a spouse still needs some assistance. Rehabilitative Alimony may be used if one spouse has been out of the job market or did not obtain as much education as the other. Such alimony allows the lesser earning spouse to get back into the job market, enhance their skills or receive additional education, such as a nurse taking refresher courses, or a spouse to finish a college degree or take some courses to be primed to move up the ladder in his/her present job, be it part-time or full-time. Such alimony would normally be monthly for a period of years. It could either end upon death or remarriage, or continue beyond remarriage, so that the children were able to take advantage of their parent’s increased future earning power. It might take the form of paying for tuition or a house payment during this time. It may be modified up or down, unless specifically set out in the MDA.

Periodic or In futuro Alimony is used when there is a marriage of longer years, usually over 10 years. Rehabilitative alimony may not be possible as the disparity in income is great, or the spouses are older. It is usually paid monthly over a specific term of years or terminates upon death or remarriage. Regardless, it does terminate upon death or remarriage, unless there is wording to the contrary. Thus as stated in the life insurance section, the policy protects the receiving spouse from an untimely death of the paying spouse. It may be modified up or down depending upon the circumstances of the parties. Well crafted paragraphs may place expectations for the receiving spouse. Often a paying spouse will have a minimum income amount, so that if there is job loss, the parties can reconvene in mediation and look at the total income of both parties.

The most important thing in determining alimony is the creation of a budget, that is based upon realistic figures of each spouse. Rarely do non-divorcing couples keep a specific budget, so it is often a major reality check to see what has been spent in the family and realize that in addition to those expenses, there will be an additional expense for housing. This step is VERY IMPORTANT, as it allows the receiving spouse to realistically look at their spending and for the paying spouse to see what is needed for the family to survive, even if the paying spouse does not want to pay alimony. The hardest negotiation is for the length of time and any step-downs during the length of the alimony.

Below are the factors we consider:

Relative earning capacity, needs and obligations, this includes income from pension, profit sharing and all sources;
Education and ability of the parties, as well as opportunities for additional education;
Length of the marriage; Age, physical, and mental condition of the two parties;
Whether or not one of the parties should stay at home with the child(ren) of the parties instead of working;
Separate property a person has; Marital property a person gets;
Standard of living the parties enjoyed during the marriage;
Tangible and intangible contributions of a homemaker and the tangible and intangible contributions of one party to the education, training, or increased earning power or the other party;
Fault of one of the parties
Tax consequences;

MEDICAL INSURANCE

The Parenting Plan sets out which parent is responsible for medical insurance for the children and the pro rata share of expenses, not covered by the policy.

If both spouses do not have their own personal health insurance, each spouse has the right to apply for health benefits through the former spouse’s current place of employment. Pursuant to COBRA legislation, nonemployee/spouses may be eligible after the divorce is final for certain insurance coverage at group rates. The insurance can continue up to 36 months, depending on your situation. The premiums should not exceed 105% of the current group rate. However, you must apply for this within 60 days of the date that the dissolution was final. Only if you file within that time period will you be eligible for COBRA coverage. The spouse with the insurance must give the other spouse notice of the cobra coverage. The court requires the providing spouse to give official notice to the receiving spouse.

ATTORNEY’S FEES, MEDIATORS’S FEE , COSTS AND EXPENSE

Pre-Litigation Mediation Fees: The fee varies with the number of sessions, but it is based on the hourly rate set out in the contract you sign, and it is charged in ten minute units. For mediation fees , normally the parties pay at the time of the mediation session, which usually lasts for 1 1/2 hours to 2 hours. If documents are prepared, that fee will be paid prior to the next session. All additional work, such as emails or telephone calls will be paid at the following session

Litigation Mediation In this type of mediation, lawyers are present. Clients are expected to pay the full amount of the time spent in mediation.

Collaborative Practice: Clients pay a retainer against which legal fees are charged. When the retainer is exhausted, the parties will replenish the retainer or pay at the end of the case. The retainer agreement will set out the amounts, and responsibilities of both attorney and client.

The emotional cost of a divorce can be greater than the dollar cost. The damage of having a broken marriage examined in court, IF YOU CHOOSE A CONTESTED DIVORCE is something only those who have lived through it can understand.

COURT APPEARANCE

In an irreconcilable differences divorce, the person who filed the complaint will have to appear in court for a very short hearing to request the judge to approve the Marital Dissolution Agreement and Parenting Plan. You will have to answer YES to about 5 questions. If the Parenting Plan is a bit unusual, it may be necessary for both parents to be present and explain to the judge why they have reached such an agreement.

FINAL DECREE

The dissolution of marriage and orders contained in the Final Decree are final in thirty (30) days from the entry of the Final Decree. The Final Decree will contain the Marital Dissolution Agreement and Parenting Plan, the certificate of attendance at the Parenting Class, a vital statistics sheet and any other required documents by individual courts.

POST DIVORCE ISSUES

REMARRIAGE

Oscar Wilde described remarriages as the "triumph of hope over experience."

You may not marry anyone except your spouse for thirty (30) days after the final decree of divorce. If you do remarry, you may want a prenuptial agreement (also called premarital or antenuptial agreement). This is an agreement with your new spouse to be made before the marriage. It can help you avoid problems in your next marriage.

CHANGES

If you and your spouse or ex-spouse agree to change the terms of a court order (Temporary Support Order, Final Decree, or any other), you must change it with another order. If your spouse says, "You don't have to pay alimony for the next year if you will take the children to Disneyland this summer," you must get it in writing and entered in court for it to be binding on your spouse and to protect you from contempt.

If you need to change child support or certain types of alimony, you can petition the court for a change. If you show a change of circumstances, then the court may modify those provisions. The change of circumstances that most impress the court are those changes that you do not expect: "I lost my job because the company went bankrupt." The courts are less sympathetic to "I just don't want to work as hard as I used to work." Sometimes changes that everybody knew were coming are a change of circumstances: "When my children became teenagers, they were so much more expensive."

WILLS

You probably need a new will now.

If you have given your spouse a power of attorney, change it unless you wish your spouse to have the power of attorney.

If you have a living will in which your ex-spouse the deciding person, you may wish to change that name.

SOCIAL SECURITY

If you and your former spouse were married for longer than ten (10) years and paid into the Social Security Trust Funds, you may be entitled to spouse’s or survivor benefits on your former spouse’s account upon reaching age 62, regardless of whether your former spouse has retired at that time. These benefits are provided by the federal government and are not usually addressed in a Decree.

The Social Security Administration advises contacting it three months in advance of your anticipated eligibility date. For survivor benefits, this could be as early as three months before turning age 60; for spouse’s benefits, three months before turning age 62.

When applying for Social Security benefits, you should have your Social Security Number, Birth Certificate, Marriage Certificate and Final Decree, showing your marriage termination date. Social Security laws are constantly changing, and your future benefits may be affected by those changes. To be sure of the exact benefits to which you are entitled, and your earliest eligibility to receive the benefits, contact the Social Security Administration directly.

BEST WISHES ON YOUR NEW LIFE

When you first entered this new arena, you were in a very difficult state of affairs. Hopefully you will have come through this experience intact, and can move forward with your new life , without having gone through the scathing difficulties of litigation. Remember that good communication for parents is at the heart of a future good relationship as co-parents.

**This summary of divorce law and practices as applicable to mediation and collaborative practice and particularly in Middle Tennessee was adapted from Larry Rice's, website, www.aboutdivorce.com

The Mediation Group of Tennessee • 2809 Wimbledon Road • Nashville, TN 37215 • Phone: 615 292-6069

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