Contested Divorce

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Question: “I need a divorce. How do I figure out what kind of lawyer I need? Do I even need a lawyer?”
If you are looking at a divorce in Tennessee, the first thing you need to determine is what type of divorce proceeding you will be involved in litigating. This helps you pick the right divorce lawyer. Are you in disagreement about the divorce, or is everyone agreeing on things? Do you have property or kids together, or is this a short marriage with nothing to even fight over?

In Tennessee, a “Contested Divorce” is a divorce where the parties are not in agreement on the terms of the divorce prior to either of the parties filing a divorce action. A party to a divorce is the Husband or the Wife. You should not confuse this with a divorce on the grounds of Irreconcilable Differences. While most uncontested divorces are filed on the grounds of Irreconcilable Differences as at least one of the grounds for divorce, not all of them do so. Likewise, just because you did not have the terms of the divorce agreed upon prior to filing does not mean that you cannot still agree to a divorce based on Irreconcilable Differences. In fact, an Irreconcilable Differences divorce is available to you until you go to trial at which point you will need to either stipulate to other grounds such as Inappropriate Marital Conduct or Adultery, or prove grounds for the divorce to the Court.

Put simply: a “Contested Divorce” is a divorce where there is something that at the time filing of the divorce, you and your spouse do not agree upon, be it alimony, asset distribution, business interests, or child custody. So for example, if you caught your spouse cheating and you wanted to file for divorce, you are talking about a contested divorce. Sometimes, your spouse may simply not agree to getting divorced at all, for financial reasons, religious reasons, or simply out of spite. The vast majority of contested divorces are filed on irreconcilable differences but also some sort of grounds. The catchall ground for a contested divorce is Inappropriate Marital Conduct.

The opposite of a contested divorce is an “Uncontested Divorce.” If you and your spouse agree on asset and liability distribution and a parenting plan, you may be able to do an “Uncontested Divorce” where one attorney drafts the paperwork to reflect your agreement and helps you through the court process. Usually, the divorce complaint in an uncontested divorce gets filed at the same time as your Marital Dissolution Agreement and Parenting Plan.

The most common divorce we see is a contested divorce where the parties expect to require substantial negotiation in one or two issues. Usually people agree they want a divorce, but perhaps there is an issue over what the parenting schedule is going to look like, or one party wants to sell the marital residence and the other party wants to keep it. The ugliest and most costly divorces tend to involve lifetime alimony, disputes over who is going to be the primary residential parent for the minor children, and jointly owned small businesses. If you have any of these three issues, it is important for you to discuss costs with your attorney up front so that you can determine if you can afford the litigation. There is nothing worse than spending a significant amount of money arguing over one of these highly contested divorce issues only to run out of money and have to fold, especially when a good divorce attorney could have arranged for an equal or better settlement before you ran out of funds to litigate and saved you some attorney fees.

Sometimes, if you have no assets and no children, you may be able to proceed without an attorney. Although it is not recommended, if you have very limited means there are Court approved documents to do your uncontested divorce “pro se” or on your own. For example, Davidson County has a link on their clerk website that has all of the paperwork you need. You should be wary of attempting your own divorce if you have anything worth fighting about. It is very common that people try to cut corners on the divorce attorney and wind up in protracted post-divorce litigation or in terrible situations where a spouse may be paying alimony for years that is double or triple what would have been awarded had that person hired an attorney. If you do not have anything and you and your spouse are in agreement on divorcing, hiring an attorney for an uncontested divorce is also recommended. Unless you are an attorney or paralegal yourself, 99 times out of 100 an attorney will be able to get you divorced easier, faster, and with less stress. The judges require fewer appearances when there is an attorney involved and some judges will waive an appearance at a final hearing if your divorce was handled by an attorney. Further, it significantly lessens the chances a judge will reject your divorce paperwork and that the divorce will go through smoothly on the first try.

Divorce laws vary from state to state, and Courts in different counties will differ as well. Sometimes, even being in the same county, but being in a different court, can affect the outcome of your case. The divorce law in Tennessee has a lot of gray area and there is a lot of leeway for judges to vary in opinions while still being correct. In Davidson County, all divorces are filed in the Circuit Court, but there are two judges and they each have different styles and views regarding divorce settlements. In comparison, you may find yourself in Chancery or Circuit Court if you are in Rutherford, Cheatham, or Sumner County. It is important that you hire the attorney before you file and things get out of hand. Your attorney may have chosen a different court to file the divorce in depending on the facts of your case. This is a huge error (and unfixable error) that non-lawyers make when attempting to manage their own divorce or custody proceedings, and sometimes this can be the difference in joint custody or an alimony award.