Family Law FAQ

Frequently Asked Questions:

UNCONTESTED DIVORCES

What is an uncontested divorce?

An uncontested divorce is when both spouses agree on every aspect of the divorce and agree to sign the necessary divorce papers. This means you and your spouse work out all of your issues between yourselves, and the attorney drafts the paperwork and manages your case through the court system.

What if we agree on most things but have a problem with one specific issue?

The attorney can give you advice on how the court will view the facts of the case and how to speak to your spouse in a civil manner about reaching a settlement, but in the end, you and your spouse must come to an agreement on every issue to have an uncontested divorce. The attorney can also advise you on what facts you can use as leverage to persuade your spouse to sign the uncontested divorce papers. For example, the idea of being served divorce papers at work in front of their coworkers is something most people want to avoid but also something an attorney can make happen very easily. The attorney might also suggest ways to offer your spouse better terms than they deserve just to make them sign the uncontested divorce papers and go away.

Can I still get an uncontested divorce if my spouse isn't cooperating at all?

Yes, it is possible to get an uncontested divorce in Tennessee even though your spouse doesn’t sign the divorce papers, but the result cannot be guaranteed. Instead of having your spouse sign uncontested divorce papers, we will have them served with a Complaint for Divorce either at home or at their job. Whenever someone is served with a lawsuit they must file an Answer with the court within 30 days. If your spouse does not hire an attorney or file an Answer within 30 days of being served divorce papers, we can then file a Motion for Default Judgment, which if granted by the court, will allow us to proceed with your divorce without their participation. In this uncontested divorce scenario you must bring a witness with you to court to testify on your behalf to say that the grounds for divorce are true. Usually this is a friend or relative who knows you and your spouse well and has witnessed a fight or argument between the two of you or has other knowledge of the facts surrounding your divorce.

Is there any way my spouse could stop or undo a Default Judgment?

Yes, your spouse can prevent you from getting an uncontested divorce by default judgment by filing an Answer or hiring an attorney. Your spouse could also appear in court at the hearing for the default judgment and ask the judge to give them more time to get legal counsel. This happens from time to time and the judge will always give them more time. How long the judge will allow them to delay the proceedings without filing an Answer varies depending on the judge, but it could be delayed for a few months if your spouse is convincing in front of the judge. Getting an uncontested divorce by default judgment is best reserved for cases involving a spouse who is highly unlikely to have the financial resources to hire an attorney or has some sort of personal responsibility problem (alcoholism, drug addiction, incarceration, etc.).

Can I get an uncontested divorce if my spouse is missing?

Some people separate from their spouse without getting a divorce and then lose track of them after a few months or years and then try to get a divorce. You must tell the court that you have used all means available to locate your spouse and have been unsuccessful. This means you must call all known friends, family, coworkers, and employers to see if anyone knows where he went, and you should also do an Internet search to see if you can locate him that way. If your spouse is truly missing then you can serve them with a divorce notice published in the local newspaper. This is an uncontested divorce by publication and it requires a notice be published for four weeks. Once the publication has run, then we must wait 30 days and then initiate the default judgment procedures. The main drawback with this method is that you cannot get any award in the form of alimony, child support, or property division. All you get is a legal divorce.

How long does it take to get an uncontested divorce?

Once your case is filed, we must wait 60 days before we set a hearing for a Final Decree and 90 days if you have minor children. This waiting period is mandatory by Tennessee law and there is no way to speed it up. How long it takes to get your case filed once you retain us depends on when you provide us with all the information we need, when you complete your payments to us, and when your spouse signs the documents.

Do I have to go to court?

Yes, the courts here in Memphis require a hearing in front of the judge before a Final Decree of Divorce is granted. In an uncontested divorce the Plaintiff (you) must answer questions about your case on the stand in front of the judge, but the Defendant (your spouse) does not need to attend.

What should I expect at my court appearance?

The uncontested divorce docket in Memphis is heard on Monday and Wednesday mornings at 9:00 a.m. in the Circuit and Chancery Courts in the Shelby County Courthouse at 140 Adams, not 201 Poplar. The parties involved will be you, your attorney, the Divorce Referee, the court clerk, and the judge. The Divorce Referee is an attorney who reviews the paperwork your attorney prepared and reports to the judge that the file is in order. The court clerk calls the docket and will give us attested copies of the Final Decree in court that day that you can keep for your records. The judge will review and sign the Final Decree and parenting plan if you have children.

When your case is called the attorney will approach the podium and announce himself to the court. You will be sworn in by the bailiff or clerk and then the attorney will ask you some simple questions:

You are John Doe? Yes

You are married to Jane Doe? Yes

You have been a resident of Tennessee and Shelby County for six months prior to filing your Complaint for Divorce? Yes

During the course of your marriage, you and your spouse have experienced irreconcilable differences?Yes

And do those differences still exist today? Yes

You and your spouse have signed a Marital Dissolution Agreement that you feel makes a fair and equitable division of your assets and debts? Yes

You and your spouse have signed a Permanent Parenting Plan that you feel makes an adequate provision for the care and maintenance of your minor children? Yes

You and your spouse have received notice in your Marital Dissolution Agreement that if either of you receives health insurance coverage from the other then your coverage will be terminated and you must seek new health insurance? Yes

You (or your wife) want to return to your maiden name of ____________ and you are not taking that name to avoid any debts or criminal prosecutions? Yes

You (or your spouse) have agreed to pay the remaining court costs of this case if any? Yes

You are asking the court this morning to grant you a divorce based on irreconcilable differences? Yes

Please notice that the only thing you have to say is “yes,” so there’s nothing to be nervous about. The judge will then sign your Final Decree and the clerk will give us the attested copies. Your divorce is final that day, but you cannot remarry for 30 days.

What’s going to happen to our house?

A house is usually the biggest debt and asset in a marriage and it can also cause many problems even in an uncontested divorce. There are many different solutions to real estate issues in a divorce and there are many factors to consider when seeking a solution that is satisfactory to both sides. Was the home bought during the marriage or did one spouse own it before the marriage? Is there any equity (you owe less than it is worth) or is it underwater (you owe more than it is worth)? Can either spouse afford the mortgage alone? Does either spouse have sufficient credit to refinance it or take out a home equity line to pay the other spouse for their share of the equity? Can the home be sold in the current market?

Answers to these questions will determine what happens to your home, but there are some general rules to consider. You and your spouse need to understand that if you are both on the mortgage, then you are both legally liable for that debt until it is sold, paid off, or refinanced even if your divorce decree says only one of you is responsible for the mortgage payment. You would have the right to sue your spouse for contempt of court if they default on a mortgage they were ordered to pay, but that won’t stop the mortgage company from collecting from you.

What is a Quitclaim Deed?

A quitclaim deed is a legal document that transfers title to property without any of the formal warranties and legal guarantees of a traditional real estate transaction you may have experienced when you first purchased your home. This is most often used in a divorce or transaction between family members. The person giving the property away is saying that whatever right, title or interest in that property is being transferred to the other person. This transfer must have “consideration,” which is a legal concept requiring some kind of exchange to create a valid contract. In an uncontested divorce, the divorce itself or the Marital Dissolution Agreement functions as the consideration whereas non-divorce quitclaim deeds often use a nominal amount of money like ten dollars as consideration. This document will be recorded with the Register of Deeds office in the county where the property is located after your divorce is final.

What amount of property am I entitled to in my divorce?

When it comes to divorce law you only have two kinds of property: marital property and separate property. You are entitled to all separate property which generally includes everything you brought into the marriage and items inherited from your family or given to you as a personal gift from your family. Marital property includes all money and assets accrued during the marriage and can be divided in an infinite number of ways. If one spouse owned the marital home or had a retirement fund or investment prior to the marriage, then the other spouse would have a marital interest in any equity or increase in value of that asset that occurred during the marriage.

Generally, in an uncontested divorce the couple splits up their personal property without any assistance from the attorney or they just split all the assets down the middle with each spouse receiving 50%. However, there are instances when one spouse’s behavior is so outrageous that a judge could order most if not all of the assets be given to one spouse over the other, but that is not common.

Can I get alimony?

In Tennessee alimony is designed to be rehabilitative, meaning that it is a temporary measure to help the economically disadvantaged spouse become independent. It is also possible to have an order of permanent alimony, but that is generally reserved for cases where the wife was a stay-at-home mother and never worked and the marriage lasted a long time. Permanent alimony may also be appropriate when one spouse will never be able to become independent due to a disability or old age. Rehabilitative alimony is based on the needs of the one spouse weighed against the ability of the other spouse to pay, but each case is determined based on its specific facts and usually only last for a few years. It is important to remember that alimony will be terminated if the receiving spouse remarries.

Can I get my spouse’s retirement money?

Retirement funds earned during the marriage are considered marital property and are subject to division. However, dividing the funds requires a special order called a Qualified Domestic Relations Order or “QDRO.” This document will be filed with the court and submitted to the plan administrator of the retirement fund, who will then distribute the funds to the other spouse upon retirement. This order is one of the most complicated legal documents you can get in a divorce and many attorneys outsource them to other specialized lawyers. Many couples feel it is fairer for each of them to keep their own retirement plans untouched to avoid any unforeseen complications upon retirement, or they may give their spouse some other asset or cash settlement to balance the asset equation without disturbing the retirement fund.

What’s going to happen to my children?

Any uncontested divorce with minor children born to the couple requires a Permanent Parenting Plan, Child Support Worksheet, and Parent Education Certificate. The Permanent Parenting Plan (PPP) is a court order providing for custody, visitation, and child support for your children. The child support worksheet is a printout from a computer program available online that is used to determine the exact dollar amount of child support. The Parent Education Certificate is a document provided to you after you complete a court-approved parenting class discussing the psychological issues involved with children going through a divorce, and this must be done by both parents prior to the Final Decree hearing.

How is parenting responsibility divided in a Permanent Parenting Plan?

In all uncontested divorces with minor children, there must be a Permanent Parenting Plan ordered by the court to divide the parenting responsibilities. The first thing you and your spouse need to discuss is a day-to-day schedule for your children. Where are the children going to live during the week while they are enrolled in school? The parent with this responsibility is designated the Primary Residential Parent, which only means they have more time with the child and their home is the child’s primary residence. Being the primary residential parent does not mean that parent has more rights or powers over the children compared to the other parent, and all issues of decision-making authority are divided in a different section of the PPP.

The next thing to decide is when the children are going to stay with the visiting parent and how school holidays are going to be handled. Generally, the “standard” plan is that the visiting parent gets the children every other weekend and two weeks in the summer. The parents then split the school holidays down the middle and alternate even and odd years. However, it is quite common for couples to make their own plans according to their individual work schedules. The judge will approve most any plan so long as he believes it is in the child’s best interest and both parents agree to it.

The parenting plan also provides for dividing decision-making authority, transportation costs, and reimbursements for medical expenses. There is also a paragraph requiring both parents to carry life insurance on themselves to protect the children if either parent should die. There can also be an order of supervised visitation terms if one parent poses a danger to the children if left alone. This generally involves cases of drug or alcohol problems or other abuse situations that occurred during the marriage. It is also common to add extra terms for misbehaving parents such as “Neither parent shall expose the children to a situation or environment where there will be alcohol consumed,” or “Neither parent will expose the child to their significant other unless the parent is remarried or engaged to be married to that individual.”

How is child support calculated?

In Tennessee child support is calculated by a computer program you can download from Internet. Just Google-search “Tennessee Child Support Calculator” and you should be able to install it on your computer. Basically all you do is enter the amount of days of visitation each parent was assigned in the parenting plan and each parent’s gross monthly income to determine the child support. There are other credits and deductions that may be entered to alter the child support number. These deductions are usually health insurance and daycare costs, but there could also be a credit given for other children from another relationship that are living in the home or outside the home and receiving child support. There can also be a deviation from the child support calculation if the child has special needs like extraordinary medical or educational expenses.

The rules for calculating child support can be found online if you Google-search “Tennessee Child Support Guidelines.”

Do I have to hire a lawyer to get an uncontested divorce or can I just print some forms from the Internet?

If you want your uncontested divorce to be done right the first time, then you should hire a lawyer. The state has recently created a form for certain limited circumstances, so citizens can file their divorce papers when it is uncontested and there are no children, real estate, or retirement plans. Even if you have a simple case, there are plenty of things you may not have considered when you and your spouse discussed the divorce. That is why you should have a lawyer advise you about all aspects of your divorce.

CONTESTED DIVORCES

What is a contested divorce?

A contested divorce differs from an uncontested divorce in that both spouses have an attorney and are fighting for their share of the marital assets and parenting time. The Defendant spouse could also represent themselves instead of hiring an attorney, but that is not that common and the odds of that spouse defending themselves successfully are quite low.

Why would someone want to have a contested divorce?

No one wants to have a contested divorce, but sometimes the situation is serious enough to warrant involving the court in your personal disputes. This could be due to an abusive or violent situation that will not stop without legal intervention or because one spouse refuses to financially support the other when they are legally obligated to do so. The other reason that a divorce may be contested is that one or both spouses are jerks and want to use the court system to exact revenge or punish the other. If this is your motivation for contesting a divorce, then it is recommended that you seek the counsel of a qualified psychologist deal with your emotional issues resulting from the breakup of your marriage.

How is the process different than an uncontested divorce?

Instead of getting together with your spouse to draft an agreement to which you both can agree, the attorney will draft a selection of documents tailored to your specific situation, file them, and have them served upon your spouse by a sheriff or private process server. Once your spouse is served, the clock begins to tick and a default judgment may be taken if your spouse does not respond to the lawsuit in time. However, a contested divorce requires competition from the other side, which will have to file an Answer and usually file a Counter-Complaint against you.

What documents are prepared for a contested divorce?

The first thing to prepare is a Complaint for Divorce, which details the facts of your marriage, the grounds for the divorce, and the action you wish the court to undertake on your behalf. The Defendant will then have to file an Answer in which they admit or deny each claim in your Complaint, and they usually file Counter-Complaint alleging facts in their favor to which you must respond with an Answer.

A Complaint is usually accompanied by discovery requests, where we will be demanding answers to questions called “Interrogatories,” an exchange of documents called “Request for Production of Documents,” and admissions of facts called “Request for Admissions.” These discovery requests are allowed to provide both sides with the opportunity to gather information about the other in preparation for trial and must be answered within 30 days of being received.

A Complaint may also be accompanied by a Petition for Orders of Protection, which is used to protect you or your children from an abusive situation immediately. This petition is taken to the judge ex parte, which means only your attorney will be present, and if the judge believes the facts warrant legal protection then he will grant the order temporarily until there can be a hearing on the matter, which will occur within about fifteen days. This is a serious order that is not to be taken lightly. It has criminal implications in that the Defendant will lose his right to own firearms if the order is made permanent, and he could be arrested immediately for even the slightest breach of the order. The protective order prohibits the aggressor spouse from being near the victim or communicating with them directly or indirectly.

The other document most often filed with the Complaint is a Motion Pendente Lite, which is a request for temporary financial support from the Defendant in the form of child support, spousal support, or bill payment. Any award of financial support is heard in front of the Divorce Referee, an attorney appointed to review divorce cases, and is generally done within the first few weeks of the case. This hearing requires both parties and their attorneys be present, put on proof, and argue for their position. You will be required to submit an Affidavit of Income and Expenses, and your attorney will provide a proposed child support order to the court.

How often will I have to go to court?

That depends on the facts of your case, but you could end up going to court multiple times in a contested divorce. If there has been an order issued by the judge at the beginning of the case such as an order of protection, then there will be a hearing soon after the divorce is filed. Filing a petition for temporary support during the divorce will require a hearing, and the judge could set a status conference in the case at any time to require the parties and their attorneys come to court and explain what’s going on in the case. At the very minimum you will have to attend the Final Decree hearing as laid out in the Uncontested Divorce FAQ.

Will I get a better result by going contested or uncontested?

That depends on the facts of your case, but the biggest difference is often the price you pay and the time it takes to complete. One of the attorney’s jobs is to properly advise you about whether it is worth the costs to contest a divorce, and most often the answer is going to be no. By engaging in a contested divorce you are saying you want your fate and the fates of your children and assets to be determined by strangers. Going all the way to trial is risky because the judge could rule in any direction, and you might not get as good a deal from the judge as you were offered by your spouse. Besides, even if you do “win,” you will most likely be handing over your winnings to your attorney to pay the large bill that comes with a year’s worth of litigation.

What is mediation and do we have to do it?

Mediation is a settlement conference conducted by a neutral attorney who will help guide the conversation and talk through whatever issues are holding up a settlement. This could last several hours and you will be billed separately by the mediator. The goal at mediation is to end the day with a signed agreement. Many judges will not allow a divorce to be set for trial unless there has been an attempt to mediate the issues.

What are the odds my case will go to trial?

Very few divorce cases end with a trial because the vast majority are either uncontested or are settled prior to trial. A trial is very risky because you are asking the judge to make very important decisions for you based on evidence and statements made in court. Once you put your fate in the hands of someone else, anything could happen. The judge is going to do his best to make a fair ruling, but that doesn’t mean you are going to get what you want.

What happens at trial?

The basics of any trial involve a couple a steps. First there are opening statements by the attorneys who will be giving the judge a preview of what they intend to prove through evidence and witnesses. Next, both sides will call witnesses and use them to introduce testimony and evidence into the record. The Plaintiff goes first and puts on all his evidence, and then the Defendant gets to put on their proof. Each side has an opportunity to ask questions of each witness. The side calling the witness engages in direct examination, which means they must ask direct questions that require clear responses from the witness. The other side then gets to cross examine the witness by asking more probing questions designed to poke holes in the witness’ previous testimony. Once the witnesses are finished, each side gets to offer a closing argument asking the judge to rule in their favor. The judge will then issue a ruling that he feels best balances the interest of both sides according to the testimony he heard.

Can I back out of a contested divorce if it goes badly?

Yes, at any time the parties can sign a Marital Dissolution Agreement and Permanent Parenting Plan and settle the divorce. For more information about divorce settlements, see the Uncontested Divorce FAQ.

What if I get into a contested divorce and then can’t pay my bill?

A divorce is a serious, life-altering event, and it is not unreasonable to ask friends and family for financial support during this time in your life. However, attorneys don’t like working for free as I’m sure you don’t either. The attorney has the ability to file a Motion to Withdraw as your attorney, but it is the judge that decides whether he will be allowed to do so. You don’t want to be left hanging during a contested divorce lawsuit, so it is strongly in your interest to keep current with your attorney fees.

How long could my divorce take?

A contested divorce could last anywhere from two or three months to over a year. It totally depends on the facts of the case, but judges make an effort to move cases off their docket, so anything over a year is going to cause the court to push the attorneys towards a resolution of the matter. The judge could also demand a scheduling order in the case to set time limits for completing discovery and depositions, attending mediation, hearing dispositive motions, and going to trial.

POST-DIVORCE LITIGATION

What is a post-divorce case?

A post-divorce case is one that occurs after a divorce is final. The most common post-divorce cases are contempt petitions and modifications of parenting plans or child support.

Why would someone need to sue their spouse after the divorce?

In a contempt case, the lawsuit is based on one spouse suing the other for not abiding by the terms of their divorce decree. This could include failure to pay alimony, debts, child support or some other breach of the divorce decree.

Modifying the parenting plan can only occur if there has been a significant, material change in circumstances since the decree was entered. This could be because one parent is no longer exercising visitation, the child has moved in with the other parent, one parent gets remarried, one parent is living with a member of the opposite sex to whom they are not married, etc. Modifying the amount of child support requires a significant variance (15%) between the current order and a proposed new order based on a change in income between the parents.

What happens when a contempt petition is filed?

A petition will be filed and served on the offending spouse, and both parties and their lawyers will attend a hearing in the court where your divorce was granted. The judge will listen to both sides and rule whether or not the responding spouse is in contempt of court. If the spouse is found in contempt, the judge can then order that spouse to fix the problem by paying what is owed that day or in installments for a specific amount of time. If a specific action is required, like selling a house, then the judge will often impose more specific terms about how that action is to be achieved and when. If the judge finds the offending spouse didn’t follow the divorce decree without any legitimate excuse (sick in the hospital, unemployed, etc.), then the judge could order the spouse to jail or to pay the other side’s attorney fees.

What happens in a parenting plan modification?

Most of the time, the court will require the parties attend mediation to try and resolve their dispute before hearing any modification case. This is because most parenting plans require mediation for disputes as one of the terms. Usually these cases are resolved amicably outside court or in mediation, but a trial is possible if there is no other alternative.

Modifications to child support are referred to the Divorce Referee for a hearing. This usually occurs in the mid-afternoon on weekdays, and the Divorce Referee is a court-appointed attorney granted the authority to hear and decide child support cases as well as temporary support hearings during a contested divorce. The ruling of the Divorce Referee can be appealed to the judge in your case.

Do I have to file a post-divorce case if I move with the child out-of-state?

Not necessarily, but you do have to comply with the parental relocation statute written in the back of your parenting plan. This statute requires the moving parent send a certified letter to the other parent at least 60 days prior to moving stating their intent to move, why they are moving, where they are moving, and that the other parent has the right to file a petition in opposition to the relocation within 30 days of receipt of the letter. If a petition is filed then there would be a post-divorce case similar to a parenting plan modification with mediation required as well.

What if my ex and I just agree to abide by our own agreement without involving the court?

In an ideal world, everyone would do that and we wouldn’t need a civil court system, but the reality is that many people have trust issues with their ex and need all agreements in writing and made into an order of the court. If a judge hasn’t signed the agreement then it is not enforceable, which means your spouse can turn around and sue you for not abiding by the original divorce decree even though you thought you had an agreement or understanding between yourselves. You don’t want to get held in contempt of court for not paying child support when your ex said it was fine if you paid a reduced amount for a while when you got laid off. Don’t trust your ex to not change their mind or do what they said they were going to do. If you could trust them, then you’d probably still be married.

JUVENILE COURT

What kinds of cases are handled at Shelby County Juvenile Court?

The Shelby County Juvenile Court is located at 616 Adams Avenue, but you can park at a large parking lot on Poplar just east of Danny Thomas. The Juvenile Court hears cases for child support, custody, visitation, paternity, abuse and neglect, and delinquency (juvenile crimes). Child support, custody, and visitation cases are primarily for unmarried couples or separated married couples. All child issues in a divorce are handled by the Circuit or Chancery courts.

There is only one judge in Juvenile Court, but most cases are heard by Juvenile Court Referees, who are special judges appointed to hear cases on behalf of the judge. There are also many staff attorneys for the state who manage cases and make recommendations to the court. These staff attorneys also assist in cases without private attorneys involved.

How is child support calculated in Tennessee?

Child support is calculated according to the Tennessee Child Support Guidelines, which can be reviewed here: http://www.tn.gov/humanservices/article/child-support-guidelines. The state has created a child support calculator program that can be downloaded here:http://www.tennessee.gov/humanservices/article/child-support-guidelines-downloads.

The two most important factors in calculating child support are the days of visitation allotted to each parent and the gross monthly income of each parent. There are also credits available for health insurance costs, daycare/aftercare, or other special expenses for the health or education of the child.

What is the rule for modifying child support?

A child support order can only be modified if there is a significant variance (15%) in the amount of the child support ordered and the new proposed amount based upon more up-to-date facts. This determination is based on the income of the parents, and there are many rules governing the calculation of income, but generally all money that has come into your possession from any source can be considered income. If one parent is not working, then the other parent could allege that they are intentionally earning less money to lower the child support order. If that allegation is upheld in court, then the court will impute income to the non-working parent based on their past work history. If there are no reliable records of income then the court can impute an income of $37,589 for a male and $29,300 for a female. If there already is a child support order and one parent has refused to submit income records, then the court can just increase the income from the last order by 10% per year.

The bottom line here is that it is in your interest to provide accurate income information to the court, and that if you think you can somehow game the system and lower your child support, you are wrong.

What if I can’t pay my child support payments?

If your financial circumstances have changed significantly then you might be eligible for a modification as described above. If you do not qualify for a modification and still have trouble paying your child support, then you need to get your spending in control and live on a budget. You could also get a second job, but try to not let the other parent know or they might try to increase your child support.

What are the consequences for not paying child support?

If you get behind in your child support payments, the court can charge you with contempt of court, which could lead to your driver’s license being suspended, tax refunds being seized, or even jail time. You cannot discharge child support obligations in bankruptcy nor can you just hold out for the child to grow up. Child support arrears do not go away and you will have to pay them.

How can I terminate my child support obligations permanently?

There are only a few ways: have your parental rights terminated when the other parent’s spouse adopts your child, marry the other parent or move in together, or wait until your child turns 18 or graduates high school, whichever is later. You would need to check with the court to make sure your ongoing child support payments were terminated when your child turns 18 or graduates high school, and you would have to file a petition to terminate child support if you marry or move in with the other parent.

Do I have to use the court system to get child support?

There is no requirement that unmarried couples with children file cases in Juvenile Court to receive child support, custody, or visitation orders. However, anything you and the other parent set up between yourselves will not be enforced by the courts. The big problem with living outside the court system is that if either parent wants child support in the future, then the court will assess arrears to the date of birth of the child or the date the parents stopped cohabiting. They will give you credit for support payments you can prove, but they will only deduct those amounts from the total they think you should have been paying all those years. As a result, it is possible that you and the other parent worked together amicably for years and then the court issues an order making you behind in child support for thousands of dollars. Also, if the other parent decides to stop letting you see the child, you have no legal recourse without filing for visitation rights.

Can the court force us to use the court system for child support?

Yes, if either of the parents has applied for government aid for the children, such as TennCare, then the state will file a lawsuit in Juvenile Court requiring one of the parents to get health insurance for the child and pay child support so they can kick you off TennCare. This could also occur if you get any kind of federal aid as well.

How is custody determined?

There is a general preference for placing children with mothers unless there is an issue raised by the father that the child’s best interest requires custody be given to him. That is a cultural attitude that reflects reality in most cases. Mothers generally do have a higher level of involvement in their children’s lives than their fathers when it comes to the day-to-day care of children. Men often complain that this is gender bias and they are being denied the right to have a stronger influence in their child’s life, but those same men often don’t exercise visitation time when it is given to them by court.

This doesn’t mean that fathers don’t get awarded custody because they do get custody quite often when the facts justify it. If there is proof that the mother is not providing the child with a healthy living environment or neglecting the child in some way (improper nutrition, poor hygiene, poor school attendance, etc.), then the court will often award custody to the father or even grandparents if the father is not in the picture.

To alter the custody determination, the parent seeking custody would have to allege there has been some change in material circumstances since the custody order was entered and that the change in circumstances makes it in the child’s best interest to live with the other parent. This is often a tough argument to make without clear proof of problems with the custodial parent, but one common line of attack is to say the custodial parent is living with a member of the opposite sex to whom they are not married. The court doesn’t approve of that in general because of the high frequency of child abuse from mothers’ boyfriends. If a father comes in to court and asks to get custody of his daughter because the mother is shacking up with some stranger she met at a bar, then the court will take that very seriously. Other reasons for changing custody are primarily about the behavior of the custodial parent and how it affects the child’s upbringing. This usually involves drug or alcohol abuse or other abuse and neglect issues with the child.

What are the standard visitation terms?

Child support orders do not include visitation terms in Juvenile Court, so you must specifically ask for visitation in a petition. However, the court does make an assumption that the child will live with the mother and the father will have reasonable visitation, which is every other weekend, split the holidays, and two weeks in the summer. That equals 285 days for the mother and 80 days for the father, which will be entered into the child support calculator. A standard visitation order would incorporate that schedule and would be enforceable by the courts or police if one parent tried withhold the child from the other. You can also request just about any variation of those terms according to the work schedule or living arrangements of the parents.

How do I get joint custody?

Tennessee doesn’t really have custody and joint custody. Instead they categorize the parents as the Primary Residential Parent and the Alternate Residential Parent. These determinations are purely based on the amount of visitation time awarded to each parent in the visitation schedule. Whichever parent has the most time is the PRP and the other parent is the ARP. If you set up an even schedule where the child spends exactly 182.5 days with the mother and 182.5 days with the father, then you would have effectively created “joint custody.” However, those plans often don’t work because the only way to do it is to have the child change residences evenly all year by living with one parent every other week or month and vice versa. This would require both parents live very close to each other and cooperate for the child’s benefit, and experience shows it often doesn’t work. These plans usually result from a settlement between the parents to reduce child support obligations or to treat each other equally and then one parent slacks off on their parenting obligations a few years down the road when they get remarried, have other children, or move to a different area.

Can I keep my child from the other parent if they are behind in child support?

No, if there has been a visitation order issued by the court, then you are obligated to follow it. A father’s right to spend time with his children is not at all contingent on him paying child support. The court strongly opposes parents using their children as bargaining chips or pawns to extract money or concessions from the each other. Failure to follow the court-ordered visitation schedule could result in you being charged with contempt of court, which could lead to your arrest and even jail time. If the other parent is asking to see the child and there is an order stating it is his weekend, then you must give him the child. The correct way to deal with a parent not paying child support is to file a contempt petition and let the court handle it.

How do I establish paternity?

Paternity is legally established when the father signs the birth certificate at the hospital, and any child born to a married woman is legally presumed to be the biological child of her husband. If either of those scenarios does not apply to you then you can file a petition to establish paternity to receive an order stating who the father is. You will need to have a DNA test done to confirm paternity, and the court will not pay for it, so you must do it yourself before you file for the paternity order. Usually there’s not a lot of debate about who the father is, and the paternity order is just a legal requirement needed to set up child support for fathers who were not named on the birth certificate.

The opposite also applies here: you can disestablish paternity for a child with a petition and DNA test. Unfortunately you will not receive a refund of child support paid for that child.

What do I do if my child is being abused or neglected by the other parent?

Call 1-877-237-0004 to report a case of child abuse or call 911 if a child is in immediate danger. Reporting a suspected case of child abuse will result in an investigation of you, your child, and your home, and if the Department of Children’s Services believes your child is in danger they will remove the child from your custody. Please review the Client’s Rights Handbook athttps://www.tn.gov/assets/entities/dcs/attachments/Clients_Rights_Handbook_2015_TN_DCS.pdf or review the information provided by the state on their website at http://www.tn.gov/dcs.

How long does it take the Juvenile Court to process a case from start to finish?

That depends on a lot of things, but usually a Juvenile Court case lasts anywhere from three to six months. However, some cases could be ongoing for many more months or even years as the facts change and the child grows up. Juvenile Court is a very busy court system with a very bureaucratic management system that makes the experience more frustrating than other courts, and patience is required to get through an experience at Juvenile Court.

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2014-01-29T20:09:11+00:00
Jeremy Davis has successfully represented my interests on multiple occasions. In my dealings with Jeremy I have found him to be highly competent, respectable, attentive, and knowledgeable. I am very satisfied with and would highly recommend Jeremy for any family law or bankruptcy case. - Charles, Bartlett, TN
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2014-08-20T18:48:27+00:00
I have already referred you twice... You've made this this divorce smooth sailing! - Jarred, Arlington, TN