Preparation Guide for a Divorce Trial
Remember: A lawyer representing himself has a fool for a client
DIVORCE
Determine to whom the divorce should be awarded or whether the parties should be declared divorced:
The following are typical grounds, but not all inclusive:
List how you intend to prove each ground. NOTE, affidavits are not admissible you need eye witnesses. If you want records you must subpoena the "record keeper" to court with the records. This is called a subpoena duces tecum. Love letters may be introduced by identifying the handwriting.
CUSTODY
State the specific grounds or reasons that you will present to the Court to show that you are a superior parent than your Wife or that your Wife does not provide adequately as to the following:
(a) The love, affection and emotional ties existing between you and the child and your Wife and the child
(b) The disposition of you versus your Wife to provide the child with food, clothing, medical care, education and other necessary care and the degree to which parent has been the primary caregiver
(c) The continuity you have provided, as opposed to what your Wife has provided, in the child's life and the length of time the child has/have lived in a stable, satisfactory environment
(d) The stability of the family unit you have provided, as opposed to what your Wife has provided
(e) The mental and physical health of you versus your Wife
(f) The manner in which you have provided, as opposed to what your Wife has provided as to the home, school and community record of the child
(g) Evidence of physical or emotional abuse to the child, to you or to any other person inflicted by your Wife
(h) The negative character and behavior of any other person who resides in or frequents the home of your Wife and such person's interactions with the child
(i) Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent child relationship between the child and the other parent, consistent with the best interest of the child.
(j) Child's preference
PROPERTY
Identify and distribute separate property (Tenn. Code Ann. § 36-4-121)
Identify and Divide marital property in an equitable manner
Identify and allocate payment of separate and marital debts
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(a)
(A) "Marital property" means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering a order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property.
(B) "Marital property" includes income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage.
(C) "Marital property" includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
(D) As used in this subsection, "substantial contribution" may include, but not be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine.
(E) Property shall be considered marital property as defined by this subsection for the sole purpose of dividing assets upon divorce or legal separation and for no other purpose; and assets distributed as marital property will not be considered as income for child support or alimony purposes, except to the extent the asset will create additional income after the division.
(b) "Separate property" means:
(A) All real and personal property owned by a spouse before marriage;
(B) Property acquired in exchange for property acquired before the marriage;
(C) Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or descent;
(E) Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
(F) Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
(c) In making equitable division of marital property, the court shall consider all relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.
(d) The court may award the family home and household effects, or the right to live therein and use the household effects for a reasonable period, to either party, but shall give special consideration to a spouse having physical custody of a child or children of the marriage.
(e)
(1) The court may impose a lien upon the marital real property assigned to a party, or upon such party's separate real property, or both, as security for the payment of child support.
(2) The court may impose a lien upon the marital real property assigned to a party as security for the payment of spouse support or payment pursuant to property division.
(f)
(1) If, in making equitable distribution of marital property, the court determines that the distribution of an interest in a business, corporation or profession would be contrary to law, the court may make a distributive award of money or other property in order to achieve equity between the parties. The court, in its discretion, may also make a distributive award of money or other property to supplement, facilitate or effectuate a distribution of marital property.
(2) The court may provide that any distributive award payable over a period of time be secured by a lien on specific property.
(g)
(1) Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties regarding the division of property.
(2) Nothing in this section shall affect validity of an ante nuptial agreement which is enforceable under § 36-3-501.
CHILD SUPPORT
Set child support based on Guidelines and time spent with each parent.
SPOUSAL SUPPORT
These are the factors you must address with the Court.
Tenn. Code Ann. § 36-5-101(d)(1)
(A) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources
(B) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earning capacity to a reasonable level
(C) The duration of the marriage
(D) The age and mental condition of each party
(E) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease
(F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage
(G) The separate assets of each party, both real and personal, tangible and intangible
(H) The provisions made with regard to the marital property as defined in § 36-4-121
(I) The standard of living of the parties established during the marriage
(J) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party
(K) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so
(L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties
ATTORNEY FEES
The award of attorney's fees in a divorce action is treated as alimony, and lies within the sound discretion of the trial judge. An award is proper when the spouse seeking attorney's fees either lacks the financial resources to pay legal expenses or would have to deplete other assets in order to do so.
