Helping Guide You Through Divorce
At the Thomas Family Law Firm, PLC, we understand how emotionally draining and difficult divorce can be, particularly if you attempt to deal with it alone. The truth of the matter is that you need a strong and knowledgeable legal advocate in your corner looking out for your best interests, regardless of whether your divorce is complex or relatively simple. After all, making even the smallest mistake can impact your financial future as well as your relationships with family members.
Because we recognize that no divorce is the same, we work hard to find creative solutions that address your unique legal needs ― solutions that benefit you and your children. Contact us today and let one of our experienced attorneys guide you through the divorce process and explain your legal rights and divorce options.
Experience You Can Rely On
Since we only practice family law, we possess the knowledge and experience to assist you with any divorce-related legal matter, including:
- Equitable division of property, assets and debts, including the division of retirement accounts
- Business valuation, as well as the division of businesses during divorce
- Alimony payments, which is sometimes referred to as spousal support or maintenance
- Issues related to children, including child custody and support
- Litigation involving prenuptial agreements
- Divorce mediation and other forms of alternative dispute resolution
No matter what issue you need help with, we will provide you with one-on-one, compassionate legal guidance.
Contact Us Today To Learn How We Can Help You
Even though we are located in Germantown, we have lawyers licensed in both Tennessee and Mississippi, meaning we serve clients throughout the Memphis area and North Mississippi, including those in Collierville, Southaven and Olive Branch. Contact us today to schedule a consultation. You can reach us online or by calling 901-537-0010.
Common Divorce Issues
Litigating And Enforcing Prenuptial Agreements
Disputes Involving Prenuptial Agreements Are Not Always Clear-Cut Legal Matters
Did you and your spouse sign a prenuptial agreement and now you are wondering if it will be enforceable upon divorce? If so, the knowledgeable family law attorneys at the Thomas Family Law Firm, PLC, can answer any questions you may have.
Whether you are seeking to invalidate a prenuptial agreement or, alternatively, wishing to have one enforced, we will explain your legal rights and litigation options. Let us help protect your rights so you can move forward with your life.
When Are Prenups Enforceable?
Couples often execute prenuptial agreements before marriage ― as well as postnuptial agreements during marriage ― in an attempt to preemptively address legal issues that may arise should they ever decide to divorce. In fact, you can use these agreements to tackle many divorce-related issues, including property division, property ownership and alimony, just to name a few.
However, it is important to remember that just because a couple has signed a prenup does not mean it is necessarily enforceable. In fact, under Tennessee law, several important conditions must first be met before your prenuptial agreement will be considered valid, including:
- The agreement must be entered into freely or voluntarily
- The agreement must be made in good faith
- The agreement must be made without the existence of duress or under influence
- The individual signing the agreement must have knowledge of the assets of the spouse who is requesting that the agreement be signed
In order to meet these requirements, the party proposing the prenuptial agreement should make every attempt to provide the contract to the other party well in advance of the marriage ― at least 30 days. Also, he or she should make an all-inclusive disclosure of his or her assets to the other party, as well as allow this other party to consult with a lawyer before signing the prenuptial agreement.
If not all of these conditions are met, the prenup may be unenforceable ― and you will need to speak with an experienced attorney.
WILL ALIMONY BE ORDERED IN MY DIVORCE?
How Is Alimony Determined During A Tennessee Divorce?
One question many people have when going through divorce is, "Will alimony be ordered in my divorce?" Well, the short answer is that it depends.
For instance, in most cases, alimony payments ― also known as spousal support or maintenance ― are largely determined based upon 1) the need of the recipient spouse and 2) whether the other spouse has the ability to pay. While these are certainly the two most important considerations, it is important to be aware that a court may review several other factors as well when determining the appropriate amount, duration and type of alimony to award, if it awards alimony at all. These factors include:
- The number of years the marriage lasted
- The standard of living the spouses enjoyed during the marriage
- The age as well as the mental and physical conditions of each spouse, including any physical disabilities
- The earning capacity and financial resources of each spouse, including any current or future income from retirement accounts and pensions
- The separate assets or property of each spouse, which are not subject to property division during divorce
- The education and skill of each spouse, and whether further education is necessary to achieve a reasonable earning capacity
- The contributions of each spouse to the marriage, both in terms of income/money and as a homemaker
- The degree to which it would not be feasible for a spouse to seek employment because he or she is the custodian of the couple's children
- The fault of either spouse for the divorce, but only if the court considers it appropriate
- Any relevant provisions of a prenuptial agreement, if one was executed
Different Types Of Alimony
There are many types of alimony that a court may award during divorce proceedings, each with their own distinct features, durations and end dates.
- Rehabilitative alimony: Payments intended to help a disadvantaged spouse enjoy a similar standard of living while he or she increases his or her earning capacity, which is often done by seeking additional education. These payments often last for a set duration of time, and will typically end when the court considers the recipient spouse "rehabilitated" or when either spouse dies.
- Transitional alimony: Payments that last for a predetermined amount of time and are intended to help a disadvantaged spouse adjust to his or her new economic circumstances.
- Periodic alimony (alimony in futuro): Long-term payments intended to help a disadvantaged spouse who is unable to achieve an earning capacity that will allow him or her to maintain a similar standard of living. While these payments continue for a long time, they will terminate if the recipient spouse dies or gets remarried.
- Lump-sum alimony (alimony in solido): A total lump-sum amount calculated at the time of divorce and paid in installments over a long period of time. This type of alimony cannot be modified and even the death or remarriage of the recipient spouse does not terminate the payments.
Keep in mind, however, the information contained above pertains only to alimony laws in Tennessee. If you have questions about alimony in Mississippi, contact us today.
BENEFITS OF DIVORCE MEDIATION
The Many Advantages Of Divorce Mediation
Whether you are pursuing a divorce in Tennessee or Mississippi, you may want to consider mediation as one way of settling your divorce-related issues with your soon-to-be ex.
Essentially, divorce mediation is an informal settlement process in which you, your spouse and both of your attorneys meet with a neutral third party, who is typically a lawyer trained in mediation. The mediator's job is simply: to work with all parties involved to facilitate a settlement.
There are many benefits of divorce mediation, including:
- Control: Most importantly, you ― and not the judge ― have control over all divorce-related matters during mediation, including issues related to property division, child custody and visitation. While the mediator will guide you through the process, he or she does not control the outcome. You know your situation better than anyone, so who better to determine what is best for you and your children? In some cases, you may even be able to reach creative solutions that a court would likely overlook.
- Flexibility: Unlike a judge, a mediator does not have final decision-making authority ― you do. In fact, until you reach an actual agreement, divorce mediation is not binding, which means you do not have to agree to anything if it is not in your best interests and the best interests of your family.
- Protects children: Divorce mediation is often easier on children, particularly when compared to long, drawn-out custody disputes in court. Mediation allows you and your spouse to work together to create a custody arrangement without having to put your children in the middle of an adversarial court dispute.
- Cost: If you and your spouse are able to settle your divorce through mediation, you can avoid lengthy ― and often-costly ― court battles.
No Matter The Circumstances, Thomas Family Law Firm, PLC, Can Help
If you have questions about divorce mediation and whether the process would be beneficial for you, contact the Thomas Family Law Firm, PLC. Even if divorce mediation is not the best option, we can still assist you ― and we will be as aggressive as necessary to help get you the results you and your family need.
HOW Is DEBT HANDLED DURING DIVORCE?
Debt And Divorce In Tennessee: The Basics
Dividing debt during divorce is often just as important as dividing assets and property. After all, being saddled with debt can make it extremely difficult to start your new life, particularly if you and your ex-spouse have accumulated large amount of debt.
If you are considering divorce and are worried about the debt you may have to shoulder, the Thomas Family Law Firm, PLC, is here to answer your questions. Since we focus solely on family law, we have a deep understanding of every aspect of divorce, including debt division. We will explain your rights and help make sure the court considers all relevant factors when coming to a fair and reasonable decision.
With attorneys licensed in both Tennessee and Mississippi, we help clients navigate the difficult process of divorce throughout the Memphis area and North Mississippi.
How Is Debt Handled During Divorce?
Generally, courts consider all debt accumulated during marriage as marital debt ― meaning, just like marital assets and property, it is subject to division between you and your spouse. One important thing to remember is that the name on the debt is not the determining factor when the court decides which spouse will have to pay it.
In many cases, the spouse who is best able to repay the debt will have to shoulder the burden, although the court will also examine many other factors, including who actually incurred the debt and why. Also, debt accumulated and secured by a specific property ― such as a car loan ― will often go to the spouse who receives that property in the divorce.
Lastly, any spouse who accumulates debt after separation, but before the divorce is finalized, will usually be responsible for paying it.
Is My Inheritance At Risk If I Get Divorced?
During a Tennessee divorce, courts are typically only able to divide marital property between soon-to-be exes, i.e., property acquired by either spouse during marriage. However, Tennessee law considers an inheritance as separate property, meaning it belongs only to the inheriting spouse, regardless of when he or she received it.
It is important to point out, however, that just because an inheritance starts out as separate property does not mean your actions cannot transform it into marital property. For instance, if you inherit a significant amount of money, and you decide to commingle this money in a joint bank account with your spouse or spend it on fixing up a jointly owned home, a court may no longer consider the entire inheritance as separate property.
Alternatively, if you go to great lengths to make sure your inheritance maintains its status as separate property, the court may award you fewer assets during divorce, especially since one factor courts consider when dividing marital property is the amount of separate property owned by either spouse.
At the Thomas Family Law Firm, PLC, we are well-aware of the various factors that may impact your inheritance during a Tennessee divorce. Whether you wish to protect your inheritance or, conversely, are concerned that your actions have already put your inheritance at risk, our attorneys can help explain your rights and legal options.
Other Types Of Separate Property
Importantly, there are many other types of separate property besides inheritances ― and all of them are protected from division upon divorce. These often include:
- Property owned by either spouse before getting married, including real estate and personal property
- Appreciation of, and income derived from, property owned by either spouse before marriage
- Property acquired after marriage, but obtained in exchange for property owned before marriage
If you have questions about divorce and its effect on your property, including your inheritance, a divorce attorney from the Thomas Family Law Firm, PLC, is here to provide you with answers.
Inheritance and Divorce
The process of divorce
The First Step: Complaint
The first step in the divorce process is for one spouse or the other to file a "Complaint" for divorce (often called a petition for divorce). This is the "pleading" or official legal document that is filed in the courthouse that begins the divorce. The person who files for divorce first is Plaintiff; alternatively, the other spouse will be the Defendant. The complaint is required by statute (law) to disclose certain statistical information such as the date and place of your marriage, if any children were born during the marriage, etc. Along with the complaint, a summons will be filed as will a Notice of Mandatory Injunction. Those three items, once filed, must be served upon the other party so that he or she has notice that the proceedings have begun. There are certain requirements for service of process that, if not met, can result in the divorce not being granted. Generally, a Sheriff's Deputy or a private process server will serve the Complaint and Summons on the other party. On occasion, parties come pick the documents up from our office and the law allows them to sign a Waiver of Service of Process, acknowledging receipt of the lawsuit. This can also be done via mail.
Once the other spouse is served with the complaint, he or she has thirty (30) days to file an "Answer" which is that spouse's official response to the complaint for divorce. The answer will generally admit or deny the allegations set forth in the complaint and many times the other spouse will file a "Counter-complaint," which is a counter-suit that is basically the same as the original complaint except that the allegations are made against the Plaintiff.
Fault and the Complaint for Divorce
Generally, litigants in divorces allege in their complaint's both fault based grounds and "irreconcilable differences," a no fault ground. The fault based ground is usually "inappropriate marital conduct" which is designed to be a catch all provision for various types of behavior. Other fault based grounds include adultery, etc. It is important to remember that just because a complaint contains the allegation of inappropriate marital conduct or another fault based ground, it does not necessarily mean that fault will become a central issue in the case or that the granting of a divorce will be contested. Also note that there are legal reasons for including certain allegations and requests for relief from the Court which may or may not have a likelihood of success. For example, a parent who files for divorce may not actually be seeking custody of a child or child support from the other spouse but may request in the Complaint for Divorce that a child support payment be paid by the other parent. In almost all Complaints and Counter-complaints, attorneys include requests that the Court order every possible relief even if the requested relief is not realistic. This is done to protect the litigants because you cannot obtain relief from the court that you do not "plead" or ask for in the complaint or counter-complaint, therefore attorneys include all possible requests as a matter of standard practice.
A temporary injunction is generally issued automatically in each divorce case. This injunction is designed to maintain the status quo. It generally prevents the sale or transfer of certain assets, prevents the dissipation of marital funds and enjoins the parties from threatening physical harm against the other and from harassing each other. The injunction is effective against both parties at the same time. It is important to make sure you understand the terms of the injunction if one has been issued in your case because if the injunction is violated, the person violating the court order can be incarcerated for contempt of court.
If the parties do not immediately begin settlement negotiations, the next phase of the divorce lawsuit is called discovery. Discovery is the process by which attorneys and the parties obtain the necessary information and facts about the case including a complete picture of the parties debts and assets. Both parties may file Interrogatories, which are written questions which must be answered under oath, and Requests for Production of Documents, which requires the other party to provide certain documents listed within the request such as tax returns, bank statements, credit card statements, etc. The answers and documents must be produced within 30 days but often it takes longer than 30 days to gather the information.
The discovery process can be burdensome and very frustrating. Often times, discovery requests ask for bank statements, tax returns, etc. going back several years. The documents can be difficult to obtain and the process can be lengthy and expensive. The extent of discovery usually depends on the size and make-up of the marital estate. For example, if one of the parties owns a business which has many employees and produces significant income, the other spouse will most likely hire an expert to determine its value.
In some divorces, attorneys and the parties agree to "informal discovery." This can reduce costs significantly and generally consists of each attorney requesting certain documents from the other spouse (i.e. current brokerage statements, etc.) Many times attorneys advise against informal discovery because the documents and information produced by an opposing party are not produced under oath. When a party answers discovery under oath, that means that the person is representing to the court that the information is the truth and therefore subjects himself/herself to the criminal penalty of perjury. If one spouse lies or omits assets under oath during the discovery process, the other spouse may be able to use that lie or omission to reopen the divorce and go after a portion or all of the assets that were not revealed.
Depositions are another common form of discovery. Depositions allow your attorney to evaluate your spouse as a witness and how he or she will likely react in a courtroom if the matter proceeds to trial. Depositions provide an attorney the opportunity to ask your spouse nearly any question they want to ask. The deposition process can be expensive because in addition to attorney's fees, there are court reporter's fees for attendance and transcription of the deposition. Attorneys often spend a great deal of time preparing for a deposition and the deposition itself may take several hours. Depositions may take place early in the case or late in the process. It depends on a variety of circumstances. For example, in some cases, depositions are taken of both spouses, fact witnesses, experts, etc.
In a divorce, the court must evaluate several factors in making decisions regarding children. The court's primary consideration is what is in the "best interests of the child." One parent must be designated the Primary Residential Parent (custodial parent) and the other parent will be the Alternate Residential Parent. To settle all issues related to the children, the parties much agree on a Permanent Parenting Plan. That Plan designates a Primary Residential Parent and provides for the number of days each parent will spend with the child. It also sets forth a default schedule for the children and sets forth the child support obligation. Many items are included in the Parenting Plan including decision making, life insurance, health insurance for the children, etc.
If you have children and are going through a divorce, the court will require you to attend a parenting class which is supposed to be taken by both parents as soon as possible after the filing of the divorce complaint. This class provides insight for divorcing parents in how they can assist their children through the divorce process.
A Divorce is a negotiation.
In its simplest form, a divorce is a negotiation from start to finish. The process by which a divorce reaches a negotiated settlement varies from case to case. In a divorce without children, the parties must agree and sign a Marital Dissolution Agreement, which is the document that divides the parties' debts and assets, provides for alimony, if any, attorney's fees, etc. This document is the formal settlement agreement. If the parties have children under the age of 18 (minor children), the parties must agree upon both a Marital Dissolution Agreement and a Permanent Parenting Plan to settle the divorce. Learn more on our Children Services Page.
Many divorces are settled in mediation. The mediation process is very beneficial in family law cases because it allows parties to reach creative settlements that are less likely to occur at trial. Mediation is an informal settlement process by which the parties and their attorneys meet with a neutral third party attorney who has been trained in mediation. That mediator's job is to work with the parties to facilitate a settlement. The mediator does not have final decision making authority like a judge but their expertise and training is very beneficial in helping settle their divorces. Mediation is generally required in family law matters prior to setting the case for trial.
A large percentage of cases which are mediated either settle during the mediation process or before trial. Mediation will save the parties a significant amount of attorney's fees if the case settles.
If the parties cannot reach an agreement in mediation or otherwise, there is no choice but to have a trial. A trial should always be a last resort. In addition to the outcome being uncertain, trials are both expensive and unpleasant. We often tell clients two people will benefit if the case proceeds to trial: both attorneys. Sometimes there is no choice but to go to trial due to a spouse's refusal to cooperate or agree to a reasonable settlement. However, we work as hard as we can to negotiate favorable settlements for our clients so they can avoid a trial.
How Is Property Divided During A Divorce?
If you and your soon-to-be ex-spouse are able to reach an agreement regarding property division, you will typically set forth the terms of this division in a Marital Dissolution Agreement (MDA), which you will then file with the court. Many couples are able to accomplish this through negotiation, divorce mediation or other forms of dispute resolution.
However, if the two of you simply cannot agree, the court will have to step in and make the decision for you. If you decide to go this route, it is important to know what property is subject to division and how the court may divide it.
Marital Property Vs. Separate Property
During a Tennessee divorce, a court can only divide marital property. In the most basic terms, marital property includes all assets and property you and your spouse have accumulated during marriage, including businesses, homes, cars and retirement accounts. Even debt is subject to division if it was accumulated while you and your spouse were married.
Conversely, separate property is not subject to division, and typically remains with the spouse who originally owned it. Common forms of separate property include all assets and property owned by either spouse before marriage as well as gifts and inheritances, among others.
Understanding Equitable Distribution
Once all marital property has been identified, the court will divide it equitably ― meaning it will split the assets fairly and reasonably, not necessarily 50-50. While the court has discretion in determining what it considers equitable, there are several factors it will examine, including:
- The length of the marriage
- The ages, as well as the mental and physical conditions, of you and your spouse
- The financial liabilities and needs of you and your spouse, as well as your respective skills and earning capacities
- The contributions each of you had on the acquisition, preservation or depreciation of both marital and separate property, including contributions as a wage earner or homemaker
- The contributions of either spouse to the education or training of the other
- The value of the separate property owned by either you or your spouse
- The economic and financial circumstances of you and your spouse when the division becomes effective
- The tax consequences of the division
Even though there are a few additional factors a court may consider, it is important to note that FAULT is not among them. In fact, fault does not come into play when dividing property.
Business Division: Why Is Business Valuation Important?
Whether you are a business owner or an individual married to one, you may have many questions about what will happen to the company during divorce. After all, a successful business may be one of the most valuable assets you and your soon-to-be ex-spouse own.
As with other assets, a business may be subject to division and distribution upon divorce if it is marital property ― meaning it was acquired during marriage. Even if only one spouse owned the business before marriage ― making it separate property― a court may consider any increase in value of the business while married as marital property, particularly if the other spouse actively contributed to the growth and day-to-day operations of the business.
Given the complex nature of business division, valuation is extremely important. Not only do you need to know how much a business is worth, but you may also need to track changes in its value over time, especially if you have to distinguish between marital and separate property. And, unlike the stock of a publicly traded company, there isn't a simple chart you can look at to determine the fluctuating values of a closely held company. In most instances, a business valuation expert is needed to measure a business's worth before you and your spouse can even begin settlement negotiations.
If you have questions about business division, business valuation or property distribution in general, the experienced attorneys at the Thomas Family Law Firm, PLC, can help. We provide committed, one-on-one legal representation. Schedule your consultation today by calling 901-537-0010 or reach out to us online. While our office is in Germantown, which is just outside Memphis, we have attorneys licensed in both Tennessee and Mississippi.
Business Valuation Methods
There are three different approaches commonly used when valuing businesses during divorce:
- Income approach: This approach typically values a business based on some form of expected income stream.
- Asset approach: This straightforward approach compares a company's assets and liabilities to determine value.
- Market approach: This approach compares a business to other similar business of comparable size in the same industry.
Business valuation can be an expensive and burdensome process in any divorce situation. An inaccurate business valuation can have ripple effects for years to come after a divorce. Therefore, one should always retain the help of a lawyer to ensure everything possible is done to value a business properly, including the hiring of a business valuation expert.
How Are Retirement Accounts Impacted By Divorce?
If you are dealing with divorce, you need to make sure you understand the law when it comes to the distribution of retirement accounts, especially since these accounts are often a couple's largest assets.
At the Thomas Family Law Firm, PLC, we understand how important retirement accounts are to your financial future, and we will do everything we can to help you seek the benefits you may be entitled to during divorce. We will carefully explain your options, including the legal and tax consequences of each, so you can make an informed legal decision.
You and your spouse may have spent years preparing for retirement, so let us help you get your fair share if the two of you decide to divorce.
Retirement Account Division
As with all other asset division during divorce, retirement accounts are subject to equitable division if you and your spouse decide to split. In fact, regardless of whether only one spouse has contributed to the retirement accounts over the years, they are still eligible for division if they were earned or accrued while the two of you were married, thus making them marital property.
Retirement accounts that may be subject to division upon divorce include:
- IRA and Roth IRA accounts
- Military pensions
Dividing retirement accounts is rarely an easy task. In many instances, the valuation process can be quite complex, not to mention you may also need a qualified domestic relations order (QDRO), which is essentially a court order that advises the administrator of a retirement plan on how to distribute the retirement funds to you and your ex-spouse. Oftentimes, it is best to seek experienced legal guidance if you have questions about retirement accounts and divorce.