Family relationships are complex and family law cases cover a wide variety of circumstances. Divorce, child custody, child support, establishing a biological parent, adoptions, terminating parental rights, and more fall under the umbrella of “domestic relations” or “family” law. It is important to hire an attorney who understands this area of law, who has experience with these cases, and who you feel comfortable communicating about personal and sensitive family matters.
A marriage can be ended one of two ways: annulment or divorce. Annulment is very limited and rare. By far the most common lawsuit to dissolve a marriage is a suit for divorce. Either party may file for divorce and they are generally filed in the Circuit (or trial) level court – although certain Tennessee counties allow them to be filed in the General Sessions court by special local rule.
During the divorce proceedings a Court must ensure that all property owned by the parties is divided, and if there are children, that a plan for custody, financial, and medical support is prepared. The Court must ensure that the custody and support plans are in the best interest of the minor children. Courts will often set temporary custody and support plans for the children while a divorce is pending. It may be important to establish a plan early so children are able to maintain a consistent and stable routine.
Divorces may either be “contested” or “uncontested.” An uncontested divorce occurs when the parties agree to the division of property and the custody plan for any children. They will execute a Marital Dissolution Agreement and Parenting Plan that must be approved by the Court. In a contested divorce the parties cannot agree on the division of property and custody – instead the Court must make these decisions.
Like any other lawsuit you are entitled to investigate all the evidence the other side may have (and vice versa). This can be an invasive process, although there are limits. Working with an attorney who you can communicate openly and are comfortable is an important step in navigating these difficult cases.
Custody and Child Support
If you have a child with someone, an order for child support and child custody are required even if you were never married. The father must often be established as the biological parent, called a “parentage” action. These proceedings often take place in Juvenile Court.
If a party did not immediately start paying child support after the birth of a child, they may be ordered to pay “arrears,” or past due support. This amount can be added to current support. The State of Tennessee issues guidelines on calculation of child support, and a special formula is used based on the number of days each parent is with the child, the income of each parent, and a few special expenses that are allowed to be considered.
Parenting plans and child support orders may be modified if there has been a “material change in circumstances.” The party requesting the change has the burden of proving a change occurs. In the case of child support, a 15% change in the amount of child support owed based on the child support calculator. A new petition – like a separate lawsuit – must be filed to demonstrate the need for modification.
If a party is not following a Court’s order they may be in “contempt” of Court. A Final Decree of Divorce or an Order for custody or child support may be enforced by petitioning the Court to find a party in contempt – or in violation – of that Court’s order. A Petition for Contempt may be brought any time after the Order is entered and becomes final. Contempt may be punished by jail time, and the offending party may be required to comply with the previous order (such as paying child support or making up missed visitation).
Prenuptial/antenuptial and postnuptial agreements
Marriage is a creature of love, but planning your future can still be a careful and well-thought out decision. There are many great reasons to discuss property ownership with your future spouse BEFORE you tie the knot. In Tennessee, a couple may enter into a “prenuptial” (or “antenuptial”) agreement before they are married that clearly sets the terms of their property ownership, and what will happen in the unfortunate circumstance of a divorce. It is also possible to enter a “postnuptial” agreement after the marriage occurs, although these are much more rare. It is important that your pre or post-nuptial agreement is drafted by a competent attorney so a court will honor it later. Contact our office for assistance with these unique agreements.