DIVORCE

Gill Family Law provides legal counsel for our clients throughout the start and end of our clients’ most significant relationships.

Our attorneys and team have created a streamlined process of divorce, making space for you to make sure you are taking great care of yourself and your family throughout the divorce proceedings. 

Our staff has had personal experience with divorce, which allows us to handle your matters with not only emotional intelligence, but also with deep empathy. Regardless of who files the petition, there is a lot of stress and pressure on both parties of a divorce. We keep our clients’ busy schedule top of mind and understand they each had very full and busy lives before divorce entered the stage. The way we handle your case allows you to be prepared, feel heard, and formulate a crafted approach to how your life and household will proceed. 

How does divorce work?

STEP ONE: COMPLAINT

To begin the process of divorce, one spouse has to file a complaint, sometimes referred to as a petition for divorce. This is the first official, legal document that has to be filed to begin a divorce. The person to file is called the Plaintiff, the other spouse is the Defendant. Within this complaint, specifics about the marriage are required. Information like the date and place of the marriage, how many children were born and when, and other basic information. Additionally, at this time, a summons will be filed, and a Notice of Mandatory Injunction. Once these three items have been filed, a summons will be served to the plaintiff so that they are given notice by a process server (either a Sheriff’s Deputy or a private process server) and notify them that divorce proceedings have begun. Service of process if crucial. If certain requirements are not met,  can result in the divorce not being granted. In some instances, parties can pick the documents up from our office and the law allows them to sign a Waiver of Service of Process, verifying their receipt of the lawsuit. This verification can also be done by U.S. mail.

STEP 2: THE ANSWER

The defendant has thirty (30) days to file an “Answer”. This is their response to the complaint for divorce. Within this Answer, the Defendant will admit or deny the allegations in the complaint. Many times, a “Counter-complaint” is filed, a counter-suit, in which the allegations are made against the Plaintiff.

STEP 3: FAULT AND THE COMPLAINT FOR DIVORCE

There are generally either fault-based grounds or no-fault grounds called “irreconcilable differences”. Fault-based is usually blanketed in a category called “inappropriate marital conduct”. It’s important to note that just because a complaint or answer includes an allegation of fault-based claims doesn’t mean that fault will be the central issue in the case, nor that granting of a divorce will be contested. There are legal causes for including particular allegations and requests for relief from the Court that may or may not be successful. Sometimes, a parent filing divorce may not actually be seeking custody of the children or spousal support, but it may be included in the Complaint. It is common practice for both Complaints and Counter-Complaints to include every possible request for relief, even if the relief isn’t practical or probable. This is to cover and protect the litigant. Relief cannot be granted by the court if it is not “plead” in the Complaint or Counter-Complaint. Attorneys include anything possible so that their client has the most options available, and it’s standard practice.

STEP 4: INJUNCTION

Keep the status quo. In order for both parties to work through the divorce proceedings without damaging assets, property or harming one another, temporary injunctions are filed. Injunctions prevent the sale of or transfer of particular assets, cleaning out accounts, and is designed to protect both parties from physical harm, intimidation or harassment from the other party. The injunction is effective for both parties at the same time. Additionally, each spouse will need to pay careful attention to the terms of the injunction. If any term of the injunction is violated, the party is subject to incarceration for contempt of court.

STEP 5: DISCOVERY

In absence of immediate settlement negotiations, each party will begin discovery. The attorneys and client continue to partner together to gather and examine the facts of the case.

Specifically, they will assess the complete picture of the marriage including their debts and assets. If there are any missing pieces of information, each party may file Interrogatories. An interrogatory is a written question that has to be answered under oath. Requests for Production of Documents can also be requested to acquire any missing tax returns, credit card statements, retirement fund records, bank statements, and the like. The responses and documents have to be produced within 30 days, but it can take longer than 30 days to gather all of the information.

Discovery can be the most arduous and frustrating part of the process. The records that are beneficial are often several years of bank statements and tax returns. Depending on record keeping, this can be expensive and time-consuming to collect and produce. Many of our clients have significant marital estates and financial histories and complications because of multiple assets, business ownership and investments. A forensic accountant or CPA can be helpful to value businesses and assist in gathering this information.

In a few cases, parties agree to an “informal discovery”, which can reduce costs and save time. However, Informal discovery is less reliable than interrogatories, as they are not submitted under oath. Informal discovery entails requests from the plaintiff’s attorney to the defendant (or vice versa), and are not insured with the consequence of perjury. Depending on the circumstances and relationship, it may be beneficial to be assured that the truth is being told about all of the finances and that the documentation be produced.

Also common in the discovery process are depositions. A Deposition allows your attorney to observe your spouse as a witness and how he or she will likely react in a courtroom if the matter proceeds to trial. Attorneys are given the opportunity to ask your spouse nearly any question. Deposition processes can be expensive because a court reporter is present to provide a transcription, so there is the fee for the court reporter and your attorney. Preparation for a deposition can take several hours to research and prepare, and can take several hours the day of. The timing of a deposition may take place early in the case or later in the process. The timing is dependent upon several factors. Some depositions may include both spouses, experts, and fact witnesses. 

STEP 6: CHILDREN

 Additional information can be found in “Child Custody & Visitation”

In Tennessee, the court rules in “the best interest of the child”. That can look very different from one household to another. Regardless of who is the primary caretaker, one parent will be designated as the Primary Residential Parent, and the other parent will be designated as the Alternate Residential Parent. Even in cases where equal custody is present or sought, the court has to identify each party distinctively. To move forward in the proceedings of divorce, the parents have to come to an agreement on a Permanent Parenting Plan. This plan details the division of days with the child/children, child support, insurance and childcare responsibilities, as well as decision-making plans.

The state of Tennessee also requires parents to attend a parenting class as close to filing the divorce as possible. Both parents must attend, but can attend separately. In this class, an instructor conveys to parents how they can best assist their children through the process of divorce.