Divorce is a complex matter, and it’s only natural that anyone going through one will have lots of questions. This is why below, our firm has compiled some of the most frequently asked divorce-related questions. Please continue reading our Divorce FAQ and reach out to an experienced Shelby County, Tennessee divorce lawyer to learn more about how divorce works in Tennessee and how we can help you through one.
Memphis Divorce FAQ | Table of Contents
Simply click the link to any of the specific questions you’d like to understand.
- Should I file for divorce first?
- What are the residence requirements for a divorce in Tennessee?
- What happens after I file for divorce?
- What is discovery in the context of a divorce?
- Should I tell my divorce attorney everything?
- Should I trust anyone’s legal advice who isn’t an attorney?
- Can my spouse and I hire the same attorney for our divorce?
- Does Rice Law provide regular updates on developments in clients’ cases?
- Should I speak on the phone or text about my divorce?
- Can I start dating during my divorce?
- What should I do with joint credit accounts during my divorce?
- How is debt handled in a Tennessee divorce?
- What should I do if my spouse files for bankruptcy during our divorce?
- Will my divorce be expensive?
- How do attorneys’ fees work?
- What should I know about life insurance and divorce?
- Can I receive Social Security benefits from my spouse after a divorce?
- How can divorce impact my taxes?
- Should I try to negotiate with my spouse during a divorce?
- How does medical insurance work after a divorce?
- How can medical issues impact a divorce case?
- What is an annulment?
- How is legal separation different from divorce?
- What should I know about estate planning after a divorce?
- What should I know about my Final Decree at the end of my divorce?
- How soon can I get remarried after a divorce?
- How important is it to keep a record of alimony/child support payments?
- When can a woman change her last name in relation to a divorce?
Should I file for divorce first?
There are tactical advantages for the person who files first. 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 and your spouse cannot agree on something (e.g. support, visitation, property division, attorney’s fees, court costs, maiden name restored), then you must ask the court for it in the petition or the court cannot give it to you. If the list seems long or includes more than you think is appropriate, try to think of it as a wish list. If the wording seems strange, remember that it is a formal legal document and much of the wording is required by law. If your spouse has already filed, be sure that your lawyer has a copy of the petition as soon as possible.
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. The defendant may also want to complain that the plaintiff was at fault. To do so, the defendant files a Countercomplaint.
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).
What are the residence requirements for a divorce in Tennessee?
Before filing your petition, you must have resided in Tennessee for six months or have been a bona fide resident of Tennessee when the grounds occurred here.
Some people wish to get divorced in another country; you can if both parties agree to it. At one time, this was faster than getting divorced in Shelby County; now, however, Shelby County is as fast, or faster. One advantage that still remains is that The Commercial Appeal does not publish out-of-county divorces. However, even your dimmest family member or friend will eventually figure out that you are divorced. One disadvantage is that if anything goes wrong—and there is much that can go wrong (alimony or support does not get paid, visitation is not working, property was not transferred)—it is more expensive and complicated to straighten problems out if the divorce was granted in another county.
What happens after I file for divorce?
Irreconcilable differences divorce cannot be granted until at least ninety (90) days after filing. This is a minimum interval. A normal interval is about ten (10) days more than the minimum required for uncontested divorces. The waiting period for contested divorces is a minimum of thirty (30) days after filing, but normally between nine (9) months and twenty-four (24) months.
During the waiting period we will try to help you work out the details of parenting, visitation, support, and property settlement, or if necessary, prepare for trial.
Certain circumstances may qualify for a quicker divorce, but we recommend a quicker divorce only in unusual situations.
What is discovery in the context of a divorce?
Discovery can include written questions—known as Interrogatories—or a request for documents—known as a Request for Production of Documents—or face-to-face questions before a court reporter—known as a Deposition. (See the Depositions page for more information.) Interrogatories and Request for Production of Documents must be responded to properly and the responses filed before thirty (30) days is up. It will take us some time to prepare your responses so you have to get them back to us well within thirty (30) days. Request for Admissions is a list of specific facts you are requested to admit or deny. If you fail to deny a fact within thirty (30) days, it is deemed admitted. If you deny a fact and the other side later proves the fact, then you must pay their expenses in proving that fact.
Should I tell my divorce attorney everything?
Your attorney must have all the facts to represent you properly. Tell your attorney everything you know: “My husband took a trip out of town—here is a copy of the ticket.” Tell your attorney what you suspect: “I bet he met his girlfriend down there.” Something that may not seem important to you may be critical to your case. If the other side knows something that we do not, the information could be used against you, and we would be unprepared and unable to defend you against it. However, if you give your attorney the information, no matter how bad it may appear, then we can take the proper steps to prepare a defense to avert what could otherwise turn out to be a disaster.
Anything you tell any member of this office is strictly confidential and will not be disclosed outside without your permission. However, we will not allow you to lie under oath nor allow you to plan to commit a crime. If someone outside of you or our office overhears or reads communications, the privilege is lost as to those communications.
Do not discuss your case with anyone unless you have your attorney’s permission. One of the best ways for the opposition to trip you up is to get a statement from you before trial that does not coincide exactly with your testimony at trial. When you do say something, be careful what you say. Anything you say may get played back to you on the stand. If you say something petty or wrong, it may hurt your case. Until the divorce is over, do not say anything you would not want the judge to hear.
Do not sign anything involving this case unless you have approval from me. You may be signing something that could harm you later on.
Tell your attorney the names, addresses, and telephone numbers of any witnesses, and tell them what you know. Advise your attorney immediately if you hear of anything that might affect your case. If we are not in, you may leave this information with a secretary, paralegal, or associate.
Should I trust anyone’s legal advice who isn’t an attorney?
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.
Can my spouse and I hire the same attorney for our divorce?
If there ever was a conflict of interest, it has to be two people getting a divorce; our firm does not represent both parties in a divorce, although some attorneys do. If you and your spouse have agreed on everything, it may be possible for one attorney to do all the legal work, but we will represent only one of you. If you and your spouse disagree later, we will continue to represent that person unless we have been directed otherwise.
Does Rice Law provide regular updates on developments in clients’ cases?
Yes, Rice Law is available to provide regular updates to all of our clients. One of our three paralegals and an associate attorney will be assigned to your case, and you’ll have access to Nick Rice, Esq., an associate attorney, and a paralegal for all stages of your case.
Should I speak on the phone or text about my divorce?
All too often people use the telephone not to communicate but to destroy communication. The angry spouse may call to scream insults or make hang-up calls.
The first case is the easiest to deal with – hang up. If you choose to stay on the telephone and to listen to the rude jerk that called, then you have made a bad choice. You can change that choice by simply hanging up; the sooner the better.
Hang-up calls are tough. Once you pick up the telephone you have lost. The answer is to screen your calls, and you can return the calls of the people you want to talk to. If the jerk calls and curses at you over an answering machine, we can bring that tape to court for the judge to hear.
If the other side is abusing you with the telephone, keep a calendar with the calls documented by date, time, and number. You have the legal right to record phone calls that you are a party to.
Can I start dating during my divorce?
Do not date while you are going through a divorce. You are still married and your spouse can use it against you. If you are divorced, moving in with your lover could cause problems with parenting or alimony. If you do date, be prepared to face the problems that may arise.
Tell our team about it, because if we are surprised by it in court, it will hurt your case. If you date, do not throw it in your spouse’s face. This will make bad feelings worse, and it is proof against you at trial (confession). Avoid dating at social events your spouse may attend. Avoid having your picture taken and published in a society column, magazine, or online. Remember, it will be hard to explain why you “did not pay” or “cannot afford” it if you took your date to an expensive event or trip.
Do not lie about dating. Although judges do not like people “fooling around,” they are not usually too angry when they hear about it. Judges are much more likely to get mad if they are being lied to. Lying under oath can result in your going to jail for contempt of court on the crime of perjury.
What should I do with joint credit accounts during my divorce?
Close joint accounts and notify the banks, charge cards, and others by a certified, return receipt letter that you are no longer responsible for your spouse’s expenses. You may want the company to reopen an account in your own name. This is a good time to request it.
At the bank you may want to divide joint accounts or put them in your name. This sometimes will make the judge angry with you, but it is often easier to give money back than to get it back. If you are the breadwinner, do not put your dependent spouse or children out in the cold without money to get by on. This will aggravate the judge, who will make you pay anyway.
Do not cut off the utilities on your spouse and children without giving them plenty of notice. Make sure you can prove this notice to the court, because leaving your spouse and children without heat or light in December seldom sits well with the judge.
Some people get into a lot of debt shortly before their marriage falls apart. This can be because they try to buy things hoping it will make the marriage better. If you have a lot of debt, you need to take steps to correct this problem as soon as possible. There will be less money to go around after you and your spouse separate because you will be supporting two households on the income that previously only had to pay for one.
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 your divorce is finalized either through a settlement agreement or a court hearing, the court will make orders concerning who is to pay what debt. If your ex-spouse does not make the required payments, you can usually take your ex-spouse back into court, but you cannot stop the creditor from trying to collect from you. Your creditors are not parties to your divorce, so the order requiring your spouse to pay off the debt will not bind them. They agreed to loan money because you and your spouse both agreed in a signed contract that said you both will pay the money back. This means you can have a real problem if your spouse is financially irresponsible. If your debts are not too high, some creditors may be willing to refinance loans so that only one spouse is responsible for repayment. We recommend that you look into this option.
If there is any reason why your spouse may be considering bankruptcy, you need to discuss this with our firm so that we can take steps to try to protect you in the event that happens.
How is debt handled in a Tennessee divorce?
Debts are the other side of assets and must be dealt with in a divorce. If you cannot agree, then the court will generally consider several factors in dividing debt obligations. Those factors can include:
- 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.
For example, the wife gets the house and the husband agrees to pay the mortgage. The husband dies or goes bankrupt. The wife may or may not be able to sue the husband. In any case, the mortgage company can foreclose on the house if the payments go unpaid and sue the wife for any unpaid balance after foreclosure. The best way to protect the wife, in this case, would be for the husband to refinance the property and to remove the wife from the debt if possible. Sometimes this is financially impossible for large debts such as houses but can still be done with smaller debts such as second mortgages and car notes.
What should I do if my spouse files for bankruptcy during our divorce?
Filing bankruptcy may relieve a debtor of many debts, but the responsibilities of paying court-awarded alimony and child support should remain. However, if you get a notice or have actual knowledge that your spouse has filed for bankruptcy, contact your lawyer immediately.
Will my divorce be expensive?
There are different types of costs in divorce cases. The largest cost is usually attorney fees, which is what attorneys charge for the work they do on your case. (See the section on Attorney Fees.) Court costs are the fees that are charged by the court for the filing of the divorce papers and various other papers.
In contested cases, attorney fees and court costs are higher and there may be other costs for things such as depositions, private investigators, photographs, psychological evaluations, and tax consultants. You must pay these costs, as we are ethically prohibited from lending clients money.
Any discussion about what the costs or attorney fees will be is the roughest of estimates. There are many variables in any divorce case, including some over which we have no control. Who your spouse will hire as a lawyer, how complex the financial issues are, or what mood the judge is in on the day of trial will affect how we handle your case and, therefore, what it will cost you.
The emotional cost of a divorce can be greater than the dollar cost. The damage of having a broken marriage examined in court is something only those who have lived through it can understand.
How do attorneys’ fees work?
A basic divorce includes the initial conference; the preparation and filing of the petition or the review of the petition filed by the other spouse; the preparation of the answer; the obtaining of information from you concerning your grounds for divorce, assets, liabilities, income, and expenses; the preparation of the marital dissolution agreement; the preparation or the review of a final decree of divorce; and the attendance of one court hearing to have the case disposed of as an uncontested divorce and to submit the appropriate mailings.
Additional time is spent for telephone conferences, negotiations, telephone calls, and other court appearances. If tax planning is needed, a tax lawyer and/or CPA must be associated, as we do not practice or advise clients in that area.
If there is a trial, one party can be ordered to pay some of the other party’s attorney fees. The court will rarely order a party to pay the full amount of the attorney fees. You are responsible for paying the agreed fees, and we will give you full credit for any payments made by your spouse. You have probably heard of divorces in which the attorney representing the wife promises to collect the attorney fees from the husband. This creates a conflict of interest between the attorney and the client, and the attorney might be tempted to compromise the wife’s rights in more important areas to protect the fee. We will negotiate and argue about your attorney fees; however, our focus will be on the total picture. Any discussion about the total cost of a divorce is only an estimate. Because we do not have control over many things such as what your spouse’s attorney may or may not do, we cannot tell you how much time your case will require.
We require a retainer to accept your case and to begin drawing up the necessary papers. If you decide not to retain me, you will only be charged for the office conference. If you retain me, you will sign a contract setting out the terms of representation in writing.
What should I know about life insurance and divorce?
The cash value in life insurance is property. If you are receiving alimony or child support, you will want life insurance on the payor to insure the payment, should the payor die.
Can I receive Social Security benefits from my spouse after a divorce?
If you and your former spouse were married for longer than ten (10) years and paid into the Social Security Trust Fund, 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 and contact them now.
How can divorce impact my taxes?
The general rules outlined in the next few paragraphs are intended to alert you to issues and provide some general information. Before you sign any tax return or take any action with respect to your federal or state income tax returns, please review your situation with your tax advisor; that is not me.
Subject to many qualifications, alimony in futuro and other alimony subject to a condition is deductible to the party paying it and taxable to the party receiving it. Child support is not deductible to the party paying it or 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 so they can change your tax filing status which will increase your withholding.
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 IRS Form 8332, releasing the dependency exemption to the noncustodial parent. This may be done as an annual election.
Generally, there is no tax gain or loss recognized as a result of the division of property between spouses upon divorce. Thus, there may be no tax incurred by dividing the property.
It is important to know the basis of the property that you receive in the division of your assets. The basis is generally the cost of acquiring, and in some cases developing, a capital asset. If the asset has appreciated, the person who receives that asset will be responsible for tax on the appreciation when the asset is sold. Depreciation is deducting a portion of the basis of an asset. If an asset has been depreciated to a low basis, the sale of that asset can have very adverse tax consequences. This commonly occurs with rental property and business equipment.
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. There is a Five Hundred Thousand ($500,000.00) Dollar exemption for capital gains for the sale of a home by a couple or Two Hundred Fifty Thousand ($250,000.00) Dollars exemption for any single person.
Beware of signing joint tax returns with your ex-spouse-to-be. Although your agreement may provide for your ex-spouse-to-be to be responsible for any tax liability, the IRS can turn to you. By the time the IRS completes the audit, your ex-spouse may be bankrupt or dead and you may be the only one left to pay the taxes.
If you have moved you need to file Form 8822 to notify the IRS that you moved. Without that, the IRS can send notices to your old address and you may not receive the notices, but the IRS can hold you responsible for any missed deadlines.
The impact of taxes can make a great difference in divorce. We are not tax lawyers. While we know some things about taxes and divorce, we are not tax experts by any means. If you need tax advice, we must associate a tax lawyer or a certified public accountant in your case
Should I try to negotiate with my spouse during a divorce?
At times, negotiating with your spouse can be very helpful, especially if you’re on speaking terms. 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 someplace 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 decide on custody and child support, next week we will decide on the house.”
- Do not bog down—Try to talk about what you agree on. No matter how bad it is, there are some things you agree on (“the marriage stinks” or “the kid is cute”). 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.
- Reschedule as needed—If things start to turn nasty, if someone gets angry, or if you think you are losing everything, reschedule the meeting for another time. It is important that both of you feel that the agreement is a good thing.
- Keep the kids out of it—Your children do not need to be involved in this. Do not have them around. They will interrupt you, and it will upset them.
- Start talking early—Divorces usually settle early on when both parties feel guilty and are not locked into a position, or divorces settle after much litigation when the parties are too exhausted to fight anymore. Sometimes you can get more with guilt than you can get at a trial.
If you and your spouse work out something and you make notes, do not sign the notes. This could be considered to be an agreement. If it is not in the correct legal language, you may be bound by something other than what you thought you agreed to.
How does medical insurance work after a divorce?
You are prohibited from canceling, modifying, terminating, assigning or allowing to lapse for nonpayment of premiums, any insurance policy. If you cover your spouse or children on your insurance, do not drop them from the policy. You are probably responsible for their medical bills until then anyway. Even after the divorce, the employed spouse may want to keep the spouse and children covered. If you are paying child support, a large unexpected medical expense for the child could be assessed against the noncustodial parent as additional child support. The same could happen with alimony and an ex-spouse.
You may have the right to apply for health benefits through your 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 and 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. Please check with your former spouse or through their employer immediately, as federal statutes and deadlines may change.
How can medical issues impact a divorce case?
I recommend you have a complete physical examination as soon as possible. As a result of such an examination, one of our clients discovered she had a medical condition that would normally not have been diagnosed and would have been fatal if it was not treated. She underwent an expensive series of treatments. The cost of these treatments will be part of her case. If you have cancer or other medical problems, it can dramatically affect your case.
Your examination should include an HIV test. If you suspect your spouse may have been exposed to the AIDS virus or a sexually transmitted disease, you must have yourself tested. Your exposure is not only to your spouse but to everyone who had sex with anyone who had sex with your spouse. The most frequent avenue of exposure is sexual contact. However, that is not the only means of contracting AIDS; exposure to blood is also a risk. Therefore, spouses of physicians, dentists, undertakers, or any medical workers have a special concern. Consult your physician and let us know the results of any test.
What is an annulment?
Annulments are granted by the court only in certain rare cases. The legal effect is to void a marriage from the very beginning, as if the parties had never married. If, for religious or other reasons, you want an annulment, tell us before your divorce is filed.
How is legal separation different from divorce?
Although legal separation is possible, we do not generally recommend it. You are still married for most purposes (you cannot date). You usually wind up divorced anyway, and instead of paying for one lawsuit, you pay for two. If you are not ready for a divorce but you want to talk things over with someone, we recommend counseling—and we will be glad to recommend some counselors. Do not use a “trial separation” as a substitute for effective marriage counseling. If you want the marriage to work, you will probably need counseling. If you do not want a divorce, counseling is a good way to avoid it—or prepare you if you must go through with it.
What should I know about estate planning after a divorce?
You probably need a new will now. If you wish to pursue this, we cab give you the names of some attorneys who do wills.
If you have given your spouse a power of attorney, cancel it as soon as possible. Until you do, your spouse has control over your property and can sell it or give it away.
If you have a living will in which your ex-spouse has the right to tell the hospital to pull the plug and let you die, you may want to have that changed.
Additionally, you have given your spouse power of attorney (the legal authority to act for you) get it back and cancel it. We can draft a cancellation if necessary but it is very useful for us to have the original document.
What should I know about my Final Decree at the end of my divorce?
The dissolution of marriage and orders contained in the Final Decree are final in thirty (30) days from the entry of the Final Decree. Your remedies to change the orders in the Final Decree are to file a Motion to Alter or Amend the Judgment within thirty (30) days, or notice of appeal of the court’s decision to the Court of Appeals.
If you wish to appeal any of the orders of the court, you have thirty (30) days from the date of the Final Decree or the order on the Motion to Alter or Amend to file a notice of appeal. Failure to file one of these pleadings within thirty (30) days from the date the Decree was entered causes your right to appeal to be permanently lost. If you believe that you may wish to appeal, please contact our firm immediately by telephone and also schedule an appointment so that we will have ample time to evaluate the appeal and to prepare the necessary paperwork before the deadline. If you tell us less than ten (10) days before the appeal deadline runs, we may not be able to represent you properly. Orders of the court of division of property are not modifiable at any future date. They can be changed only by amending the Final Decree, an appeal to the Court of Appeals, or by a written agreement signed by both parties and filed with the court as an order.
Orders of the Court for alimony futuro, rehabilitative alimony (but not alimony in solido), child support, custody, and visitation may be modified upon a showing of a substantial change of circumstances. Any modification of these orders must be done prospectively. This means that the court can only modify these orders from the date of the filing of a petition to do so forward. The court cannot retroactively modify any court orders. Any agreements to modify these orders must be in writing, executed by both parties and entered by the court as an order, or such agreement is not binding.
How soon can I get remarried after a divorce?
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. If you are interested in this, ask me. It can help you avoid problems in your next marriage.
How important is it to keep a record of alimony/child support payments?
You must keep records of payments you make or receive for alimony and child support. If you are paying, pay by check and keep all canceled checks. If you cannot prove you paid it, you might as well have not paid it. If you are receiving payments, keep a running account in a permanent place. If you cannot prove what you did get, the court might not believe you when you testify about what you did not get. It is easier for both parties to have payments deducted from the paycheck of the person who is paying.
A form for keeping track of payments is included in the Support Account Sheet Appendix.
When can a woman change her last name with a divorce?
In Tennessee, a woman may go back to using her maiden name at any time. However, sometimes it is hard to convince the Social Security Administration that she has legally returned to her maiden name. A woman can have the court order the restoration of her maiden name in the final decree, even if she is not the plaintiff. We suggest that you go back to your maiden name only when there are no children, or go back to a former married name when there are children of that former marriage. If you want to do this, let us know.
Contact an Experienced Shelby County, Tennessee Divorce Lawyer
Divorce is confusing, and we hope this FAQ was able to help shed some light on your situation. If you’re ready to begin your divorce or you require assistance with another family law matter, contact Rice Law today so we can get started.