Filing for Divorce Without a Lawyer
Divorce in Tennessee Without a Lawyer
Divorce in Tennessee without a lawyer. Filing for divorce without a lawyer. Can you get a divorce without an attorney? How can I get divorced without a lawyer? Do I need a lawyer to file for divorce?
Divorce in Tennessee Without a Lawyer: VIDEO TRANSCRIPT
If you’re considering divorce, then you may be thinking about filing without a lawyer. We recommend against it. I will explain why divorce is not something to try on your own.
Hi. I’m Miles Mason. I’m a family lawyer. My law firm represents clients who live in Memphis, Collierville, and Germantown, Tennessee areas, in addition to Fayette and Tipton counties.
So why would we recommend against filing for divorce without a lawyer?
Very simply. Divorce has too many pitfalls. And the consequences of a mistake, a misunderstanding, or a lack of knowledge of Tennessee divorce law may not be fixable. In fact, more often than not, the damage cannot be undone. Once you sign certain legal documents, even informal agreements at mediation, in many circumstances courts will enforce those terms agreed upon. By having an advocate who is experienced and knowledgeable in the law of divorce, in the court rules, in current case decisions, who is familiar with each judge’s courtroom, the outcome is far more likely to be favorable.
Don’t base your decision entirely on what you think it will cost to hire a lawyer.
Research likely cost. Every divorce is different. Interview some lawyers. Even if you pay for consultations, gathering more than one perspective can be very helpful. Experienced family law attorneys may not charge nearly as much as you might think.
Be mindful that trying to fix mistakes or trying to avoid mistakes made in the paperwork can be much more expensive than the cost of hiring a lawyer to handle your matter from the beginning.
Some divorces just cost less than others. It depends. Are there pensions? Do they have children? Is there equity in the home? How much anger do the spouses feel for each other? Not having a lawyer won’t solve any of these problems.
I’m not trying to scare you, but inform you.
You have the right to represent yourself in court. But before committing yourself to that course, carefully consider what divorce in Tennessee entails in terms of court proceedings and the rule of law. And your emotional involvement in the case. Divorce is a marathon, not a sprint.
First, there is division of the marital estate.
Dividing marital assets and debts in even the simplest divorce can still be an involved process. Every item, every asset, every debt must go through a 4-step process of identifying or learning what property exists, classifying the property as marital or separate, valuing the property, and dividing the property. Almost every marital estate has some issue that requires knowledge of Tennessee property division law. And almost every property division involves negotiation. Even short term marriages can be challenging to determine what can be negotiated. Don’t risk negotiating away your rights out of ignorance of the law. Don’t limit negotiations because you don’t know what the law allows or disallows. If you represent yourself, then you’ll negotiate every aspect of the divorce directly with your spouse or your spouse’s lawyer. Is that something you should attempt to do? Is it safe for you to try? Would the result be fair?
What if your spouse has a lawyer but you don’t?
If your spouse has a lawyer, you could be in real trouble. Not just on the division of property, but in every aspect of the case – child custody, alimony, child support, everything. Every lawyer has an ethical duty to zealously represent his or her client, which is not you. The opposing lawyer’s job description includes making sure you get as little as possible in the divorce. Your spouse’s lawyer has no duty to tell you what you should be asking for, or what a court might award a spouse in any common situation. Do you really want to negotiate with your spouse’s attorney? That’s an almost guaranteed imbalance of power at the negotiating table. No matter how pleasant your spouse’s lawyer seems to be, his or her loyalty is only to the client, not to a reasonable compromise. He or she is not representing you and is not looking out for your best interests. It’s important that you have your own lawyer.
Consider the marital home.
Only 4 things can happen to a house:
- Husband buys out wife.
- Wife buys out husband.
- They sell and split the proceeds.
- Or they own the home together after the divorce.
Typically, the marital home will be among the couple’s greatest assets. Likewise, it is often the greatest source of debt. Unless the debt issue is resolved in a way that allows for one spouse to remain in the home, neither spouse will get to stay. Which means the children could be uprooted, too. What’s the house really worth if it must be sold? Most spouses have a mortgage on their home, maybe a second mortgage. Divorce does not alter obligations on the mortgage. Transferring the home to one spouse will require refinancing, qualifying for a new loan. If the spouse was a stay-at-home parent with no employment history, so no credit history, then qualifying for a substantial home loan may not be possible. A smaller loan, maybe. But that could mean both spouses must move out and relocate. If refinancing is not feasible, then the marital home must be sold. This can take time to accomplish.
Experienced divorce lawyers handle these situations every day. They know how to negotiate and help clients make smart financial decisions. They know when it’s time to mediate disputes. They know what legal options are available.
Consider retirement assets.
Pension and retirement assets require classification as either marital or separate property, and, quite possibly, valuation. The marital portion of each pension, IRA, 401(k), must be equitably divided. With pension division, a Qualified Domestic Relations Order (called a QDRO) is often needed to divide pensions and 401(k)s. You should not attempt to draft a QDRO. Leave that to an experienced QDRO lawyer who specializes in drafting these types of technical orders to pension administrators.
Second, there is the matter of alimony.
There are four different types of alimony in Tennessee law: Alimony in futuro, transitional alimony, rehabilitative alimony, and alimony in solido. There are many statutory factors for the judge to consider with alimony, only one of which is marital fault. Which means any fault-based grounds for divorce can influence the amount and duration of an alimony award. But, in certain circumstances, fault will not affect negotiations in a meaningful way. It just depends. An experienced alimony lawyer knows:
- What type of alimony is available.
- How much alimony is possible.
- How long alimony may last.
- What circumstances can cause alimony to terminate.
- What evidence the courts have found persuasive in previous cases.
- And the best strategies to negotiate a favorable settlement.
Third, there is the requirement of child support.
Alimony and child support calculations begin with a detailed analysis of tax returns, financial statements, employment contracts, stock options, deferred compensation, and more. When calculating child support, both parents’ income from all sources is considered. If you suspect your spouse is hiding income or using the business to conceal assets, for example, then you may need to hire a forensic accountant. Forensic accountants are Certified Public Accountants. They analyze financial data and can report and testify at trial as expert witnesses.
Fourth, there is the best interests of the children.
Every custody case has the potential for intense conflict. If you have children, an experienced family lawyer can help reduce conflict. And can advise you in your specific situation. The best interests of the children is paramount in Tennessee child custody law. That is the legal standard by which judges make custody determinations. But proving what’s in each child’s best interests is seldom so clear cut. A forensic child custody evaluator may be needed to assist the court in making that determination. You can easily find information about Tennessee’s child custody factors on our website, MemphisDivorce.com.
Parents must submit a Parenting Plan to the court for approval.
If they agree, great. If they do not agree, then the judge will determine every undecided aspect of the parenting plan for them. Parents should willingly negotiate and mediate disputes in the best interests of the children. But that is often easier said than done. Consequently, negotiations and mediations are much more productive with assistance of counsel. This is how you avoid the judge making parenting decisions for you:
- Decide who shall have Primary Residential Parent status.
- Schedule parenting time.
- Decide who shall have final decision-making authority in the event of a future dispute.
- Decide what should be included in child support.
- For example, private school tuition, extracurricular activities costs, travel expenses, if a trust should be set up for future college expenses, and more.
Experienced lawyers can help you choose among many options not included in the parenting plan form.
Fifth, what if your case goes to trial?
There is always the possibility that your case will go to trial on any disputed issue. For the best possible outcome at trial, you need an experienced divorce attorney to handle your case. Even when spouses agree on everything, they should be represented by counsel. Even when they have no children, no real estate, and no retirement assets – they should be represented by counsel.
Okay. Here is a gentle plug for two of my books. If you are still thinking you might file for divorce without a lawyer, consider buying and reading my book: The Tennessee Divorce Client’s Handbook. It’s easy to read and understand. Originally, I wrote this book for my clients. It introduces legal terms, basic Tennessee divorce law and family court procedure. My Tennessee Parenting Plans and Child Support Worksheets includes explanations and examples, including completed forms from actual cases. Both are available on amazon.com. I’m Miles Mason. Thanks for joining me.