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DIVORCE:
Q.
What is the difference between a contested divorce and an uncontested divorce?

A. To have an uncontested divorce, you and your spouse must be in agreement on all issues, including division of all property and debt, where your child(ren) will reside, child support and parenting time for each of you with your child(ren). The agreement regarding the division of property is memorialized and presented to the court through a marital dissolution agreement. The agreement regarding the child(ren) is memorialized and presented to the court through an agreed shared parenting plan. Unless you and your spouse are able to agree on all these issues and sign the appropriate documents, your divorce is contested. However, contested divorces can, and often do, end in settlement.

Q. How long does an uncontested divorce take?
A. In Tennessee, if you do not have children and you and your spouse sign a marital dissolution agreement, your divorce can be final after the complaint for divorce has been on file for at least sixty days. If you have children, Tennessee law requires that your divorce be on file for ninety days before a final hearing may be held.

Q. How long does it take to complete a contested divorce?
A. Tennessee law allows a divorce to be filed in either Chancery or Circuit Court. In Montgomery and Robertson Counties, it has been my experience that a contested divorce in Chancery Court takes twelve to eighteen months to complete. In Circuit Court, the time would be much shorter, possibly six months, assuming all discovery is completed timely.

Q. How is property classified in Tennessee?
A. Tennessee is a dual-property state. This means there are two kinds of property, separate and marital. Separate property is anything you or your spouse had prior to the marriage or that was given to you or him/her during the marriage, including inheritance left to you or him/her alone. Marital property is anything acquired during the marriage (including the portion of retirement funds accumulated during the marriage). When a person or a person's will gives property to both spouses together, that is considered a gift to the marriage and is marital property. Separate property can become marital property under certain limited circumstances. The court does not have the authority to award you any of your spouse's separate property or to award your spouse any of your separate property. However, the court must consider that property in determining the most equitable manner in which to divide your marital property.

ALIMONY:
Q. What is the law in Tennessee regarding alimony?
A. In Tennessee in order to receive alimony, the requesting spouse must prove that he/she is "financially disadvantaged" as compared to the other spouse. This determination does not occur until after the trial court has divided all of the parties' property and debt. Fault for the breakdown of the marriage can be considered at this stage. The trend in the law is that if alimony is to be paid at all, it is to be rehabilitative alimony. Rehabilitative alimony is designed to allow the spouse who is disadvantaged to become self-supporting by providing funds to him/her to allow him/her to complete a college degree, complete trade school, etc. Therefore, in order to receive rehabilitative alimony, the requesting party should present a plan for rehabilitation to the court. Rehabilitative alimony is usually ordered for anywhere from one to five years, depending on all the facts and circumstances.

PARENTAL RIGHTS & RESPONSIBILITIES:
Q.
Can I get full custody?

A. No. There is no such thing in Tennessee as full custody anymore. In July of 2000, the General Assembly passed the Shared Parenting Act that went into effect January 1, 2001. This Act eliminated the term custody from our vocabulary. We now have shared parenting, which provides that each parent has an equal right to participate in the rearing of his/her child(ren). One parent is still the primary residential parent, however, the parent who was historically called the non-custodial parent now is awarded a much more substantial amount of time with the child(ren). However, if a parent is physically or emotionally abusive of either the other parent or a child or has a drug or alcohol problem, his or her time with the child(ren) may be restricted by the court. As in the past, these issues are determined by a thorough review of the facts and application of the law to those facts.

Q. How do I determine what amount of child support should be paid?
A. Tennessee has Child Support Guidelines that require a percentage of the obligor parent's income (from any source) to be paid as support for minor children. The applicable percentage depends upon the number of children. For one child, the obligor parent pays 21%; for two children, the obligor parent pays 32%; for three children, the obligor parent pays 41%; and for four or more children, the obligor parent pays 46%. The Guidelines allow for deviations based upon several factors. One factor is the amount of time the obligor parent has the child(ren). Therefore, the Shared Parenting Act is having an effect on child support orders. For every day the obligor parent has the children overnight more than eighty days, the obligor parent is entitled to a reduction of his/her child support obligation. Conversely, for every day under eighty days the obligor parent has the child(ren), the obligee parent is entitled to an increase in obligor parent's child support obligation. Further, in the event two parents share their children relatively equally, a successful argument can be made that the court should compare the applicable percentage of the two parents' incomes and the parent whose obligation is a higher dollar amount should pay the difference to the other parent.

Q: Which parent should provide health and dental insurance for the child(ren)?
A: The Child Support Guidelines require the parent obligated to pay child support to provide health and dental insurance for the child(ren). However, the parties may agree that for various reasons, it is desirable to have the other parent provide the insurance (i.e., the other parent's employer will provide insurance, etc.).

CRIMINAL CASES:
Q:
What are my rights if I am suspected of a crime?
A: Pursuant to the United States Constitution and the Constitution of the State of Tennessee, a suspect has several crucial rights. Often times, it is only by a suspect unadvisedly giving up on of these rights that the government is able to obtain a conviction. You have the right to be represented by a lawyer. If you truly cannot afford a lawyer, you have the right to have a lawyer appointed by the court. Before you enter into any agreements or talk to the police about anything, you should always consult with a lawyer. You have the right to remain silent. YOU DO NOT HAVE TO TALK TO THE GOVERNMENT! Also, you must remember that anything you say to anyone other than your lawyer or minister can and will be used against you in court if the government finds out about the statement. This also means you do not have to testify at any trial or proceeding and your decision not to testify cannot be used against you for any purpose. In a jury trial, when the defendant does not testify, the jury is specifically instructed that the decision not to testify cannot be considered by the jury for any purpose. However, should you decide (after consultation with your lawyer) that you want or need to testify, you also have that right. The jury is then instructed that they are to consider your testimony the same as any other witness. The decision of whether or not to testify is an extremely important one and should only be made after consultation with an experienced criminal defense lawyer. You have the right to be accused of a crime by a grand jury. This means that if another citizen or a police officer obtains a warrant for your arrest, you have the right to have a general sessions court judge decide whether or not there is sufficient evidence (probable cause) for a grand jury to consider the case. In the event the judge sends the case to the grand jury, they must then decide whether or not there is probable cause to believe that a crime occurred and that you committed that crime. The defendant does not have the right to be present or present evidence at the grand jury stage of the proceedings. You have the right to a trial by a jury of your peers. This is the most important protection of our freedom. Before the government can put a person in prison or take away their liberty in any way, they have to convince a jury of ordinary citizens beyond a reasonable doubt that the person committed the crime of which he / she is accused. There are many factors that go into deciding whether or not to exercise this right. This decision should be made only after consultation with an experienced criminal defense lawyer. You have the right to confront witnesses against you. This means that the government has to put witnesses on the stand in open court to testify to facts they claim to know about the case. You then have the right (generally through your lawyer) to question these witnesses about their testimony and any other relevant facts. Cross-examination of government witnesses can be the most crucial phase of a criminal trial. You must have a lawyer who is skilled in this task and knows the facts of your case better than anyone, including the prosecutor. You have the right to compel witnesses to testify in your behalf. This means you (usually through your lawyer) can subpoena witnesses to testify to relevant facts about the case. This is important, because most people do not want to come to court or get involved in court proceedings. By serving them with a subpoena, they have no choice but to come to court and testify. Unless you entered into a plea bargain with the government or simply pled to the charged offense (commonly referred to as an open plea), you have the right to appeal your conviction and / or your sentence in every criminal case. To initiate the appeal process, a motion for new trial must be filed within thirty days of the sentencing hearing. In the event that motion is denied, a notice of appeal must be filed in the trial court within thirty days of the order denying the motion. The appellate courts have absolute time limits regarding filing of briefs that include legal authority for your appeal. Therefore, it is imperative that you be represented by a criminal defense lawyer who is experienced in pursuing appeals on behalf of criminal defendants. In the event you cannot afford to hire a lawyer to pursue an appeal, you have the right to have the court appoint a lawyer to represent you at the appellate level.

Q: What is the difference between a misdemeanor and a felony?
A: Crimes are classified into two categories, misdemeanors and felonies. A misdemeanor is considered by society to be less serious than a felony and therefore carries a lighter punishment. The maximum punishment for any misdemeanor is eleven months and twenty-nine days. Misdemeanors are usually handled in the general sessions courts by having a judge decide the case. However, a defendant has the right to have the case submitted to the grand jury and, if indicted, a trial jury. The punishment for a felony is more than one year. Felonies are also divided into subcategories. The classifications begin with a class E felony, the least serious, up to a class A felony, the most serious. The range of punishment for a felony depends on the classification of the felony and the defendant's prior record.

Q: What are the attorney fees for criminal cases?
A: It is not possible to set one fee that applies to all cases. The fee a lawyer charges depends on the nature of the charges, the defendant's prior record and whether the type of trial the defendant wants to have. Jury trials typically last longer than bench trials and therefore cost more.


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Information disseminated on this Web site is inteded to be informative in nature and is not to be interpreted as legal advice.
For legal consultation, please contact The Law Office of Carrie W. Gasaway at 1-931-245-0077.