Frequently Asked Questions

Like it or not, a law office is a business. Even if the lawyer were willing to work for free, our staff doesn’t, and it’s really convenient to keep the lights on. Matrimonial litigation can be expensive. Clients are expected to pay their fees promptly and in full.

The level of client preparation and knowledge about the parties’ finances, coupled with a willingness to share that information with the adverse party, can make for a less costly divorce. Lawyers are unable to predict the fee total because of unforeseen or changing circumstances.

Unlike probate or injury litigation, in divorce, the fee is based upon work performed, not a contingency percentage of amounts collected.

Court costs, court reporter fees, copying costs, mediator fees, and other expenses of litigation are the responsibility of the client and must be paid promptly.

Nearly half of all marriages end in divorce. Sooner or later, half of our married clients will need our advice in a matrimonial law matter. Like death and taxes, divorce is an issue that doesn’t simply go away.

Each client thinks of himself or herself as an expert on the subject.

After all, who doesn’t have a friend or relative who’s divorced? A common mythology surrounds divorce, just as it does childbirth.

No client is immune to gratuitous advice from Aunt Sally and coworkers. When our client tells us about the guy who makes $50,000 a year and was ordered to pay no child support for nine children in the custody of his ex-wife, we suggest that client to immediately hire that guy’s lawyer instead of us.

Many cases give lawyers the luxury of time to research facts and the law before filing the initial pleading. Not so with divorce. Every state has a no-fault (or irretrievable breakdown) ground. Chances are, the client has pondered long and hard before calling for that first appointment.

Fortunately, the initial stages of divorce practice are not difficult or time-consuming. The most important factors for lawyers to detect before filing the action are:

Does the client want to dissolve the marriage?

Can the client afford to begin the litigation?

Does the court have jurisdiction?

 Is the client ready to proceed immediately, or does the client want time to prepare for (or orchestrate) the case?

We begin the interview by advising the client what a divorce action can and can’t do. For instance, a divorce won’t deliver a blemish-less credit report for a couple on the edge of bankruptcy. A divorce won’t make one party wealthy beyond belief. A divorce action won’t make an errant spouse fall off the end of the earth. The client must make a thorough reality-check.

A divorce decree can create an enforceable support order, award custody and establish visitation rights, and distribute property between husband and wife.

Our staff will decide which court has jurisdiction. In Tennessee, the residency requirement is six months before filing.

There are really three “divorces” that operate in the client’s life:

the physical (which may take place when the parties establish separate living quarters or no longer share the same bed),

 the emotional (when the parties no longer feel married to one another), and

the legal (which is represented by the divorce decree).

While the physical and the legal divorces will take place at the same time for each party, the parties may not reach their emotional divorce simultaneously. The only divorce that the lawyer will be involved in is the legal one. We can refer the client to a therapist for emotional issues.

Rarely is the actual dissolution of the marriage an issue: even where the client is resistant to divorce, it takes two willing parties to make a marriage. Often, clients want an on-the-spot assessment of their chance of success. Lawyers are not in the position to give odds; if we were, we would be in Vegas instead. Some issues, such as child support, can be easily estimated by state child support guidelines. Initial retainer fees can often be estimated by using “rule of thumb” rules or local custom. These are just estimates, based upon the information at hand, and the final fee will depend on the difficulty of the case, the time, and work involved.

Each divorce petition, summons or complaint is similar. The unique information contained in those documents would be the parties’ names, addresses, date of marriage, and children’s names. In addition to termination of the marital relationship, the forms of relief sought may include:

 Temporary (pendente lite) measures to maintain the status quo of the parties during the pendency of the action, such as custody, visitation, support, attorney’s fees, suit money, and injunctions or restraining orders.

Often our clients do not have the luxury of time in which to make filing decisions. The decision to file may be based upon situational exigencies that neither client nor counsel can anticipate. The decision to file, and when, often has been made prior to the time the client walked in the door. Domestic violence, lack of financial support, child-snatching, and property transfer issues usually require immediate action. There may be little time in which to prepare for a hearing on temporary issues.

Lawyers can be effective in preparing the client to meet statutory and case law criteria which would aid the client in successful litigation. While “orchestration” of a divorce case is perhaps a callous and tacky characterization, if there is opportunity, planning may enhance the client’s chance of success.

Generosity toward the other parent’s involvement with the child cannot be over-stressed. We encourage the client to support the other parent’s relationship with the child. There should be an ongoing parent-child relationship and level of cooperation between the parents. The client should document efforts to encourage the child’s relationship with the other parent. The client should consider what amount of visitation the client would be willing to expect if the client were not awarded primary parenting of the child. Even where the parties are bitter, we encourage our client to demonstrate the client’s level of support for the child’s relationship with the other parent.

Even where timing cannot be controlled, many other protective measures need to be considered. A power of attorney and will may need to be redrafted. Bank and credit card accounts should be protected against a spending spree by the other spouse. Safety deposit boxes may need to be closed out. Beneficiaries of life insurance policies may need to be changed. Whether any of these steps is in the client’s best interest depends upon the circumstances of each case.

In an uncontested divorce, both parties agree on all the issues surrounding the divorce, including property division, money, child custody and child support. This is a less expensive form of divorce that saves time and eliminates much of the trauma associated with the end of a marriage.  Attorney Doug Carter has more than 40 years of legal experience and is a Rule 31 Listed Mediator who can assist you in coming to agreement on the terms of your divorce, saving you the time and money of going to court and giving you more control over the results.

If both parties are unable to come to an agreement on how to split assets, or on child support and custody issues, it’s important that you have a qualified attorney who will work to protect your rights and best interests. Doug will help you negotiate the terms through divorce mediation, but is an experienced trial attorney who will stand up for you in court if it should come to that.

Yes, The process of going through a divorce is difficult no matter what, but when one or both spouses are in the military, the process can become increasingly complicated, especially if one of the individuals is deployed or is preparing for deployment. There are special protections for service members who are going through divorce, and these need to be considered, which is why it’s important that you have a lawyer who is familiar with the complicated details involved.

Service Members Civil Relief Act

According to the Service Members Civil Relief Act, 50 UCS Section 521, and in the discretion of the local Tennessee court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter; which is typically the case when the active member is serving in a war. Any active-duty member can waive this right to have the divorce proceedings postponed should he or she wish to get the divorce.

At the Law Office of Douglas J. Carter, we are familiar with the complex details involved in military divorce and will make the process as quick and easy as possible for you. To arrange a free 30-minute consultation to discuss the details of your legal matter with an experienced member of our staff. Contact the firm online or by calling 423-926-9193.

I am attorney Doug Carter, and I have been handling family law matters in Tennessee for more than 40 years. My familiarity with the judges is due to my experience practicing in every court in the area. These judges know that I am committed to doing what’s right for my clients and their children, which has gained the respect of many judges and helps me work more effectively with them. To speak with our staff, contact us online or by calling 423-926-9193.

At the Law Office of Douglas J. Carter, we make the children’s best interests our top priority. Major factors that the courts will take into account when making child custody decisions include:

Who has been the primary caretaker for the child?

What is the ability of each parent to provide for the needs of the child?

Does the parent provide effective parenting and work to protect the child’s best interests?

Ten Commandments For Custody Clients

You are in custody litigation. This is intended to give you basic information about what you can, and can’t, do with your children….if you want to enhance your chances of success.

Communication with Your Spouse

Try to discuss your child’s welfare with your spouse. Limit your discussion to the child’s welfare. Don’t discuss the new boyfriend or girlfriend or your anger with the spouse—it’s counterproductive. If you cannot discuss these matters with your spouse, write the spouse a letter or memo. Save a copy.

Dating

This is addressed from a practical, not moral, stance. You are still married, and you will be until the judge dissolves your marriage. Terminate or put on hold any extra-marital relationship. If the new boyfriend or girlfriend cares about you enough, he or she will wait for you. If not, so be it. You need to concentrate on maintaining and developing your relationship with your children. You do not have the time or money right now for affairs. That time will come later, after this case is closed. If you perceive the extramarital relationship to be a very stable one leading to marriage, and you elect to ignore my advice, remember that you have been warned. Do not involve the paramour in your child’s life. Regardless of how much the new love object purportedly cares for your child, limit your contact with the boy/girlfriend to times when the child is with the other parent. Your paramour’s lifestyle, behavior, marital status, and indeed relationship with his/her own children, will come under scrutiny in your custody case.

Medical Care

Elective, non-emergency medical care should be undertaken after consultation with the child’s other parent. If the parent refuses to discuss this with you, let that parent know the name of the service provider, the procedures undertaken, and the diagnosis. Don’t keep the child’s medical care a secret from the other parent.

School

If you’re the primary residential parent, let the other parent know when parent-teacher conferences are scheduled. Give the other parent a copy of the child’s report card. Share the child’s schoolwork with the other parent. Discuss homework and school responsibilities the child may have with the other parent. If you’re the visiting parent, you have the right to contact the school and ask that you be contacted about parent-teacher conferences and the child’s school records. Do so. Don’t place all of the responsibility upon your spouse to let you know. Take an active part in the child’s education.

Visitation

If you are the primary residential parent, have the children ready for the visit. Have a supply of suitable clothing ready to accompany the child. You don’t want the judge to learn that you let your child go off on a weekend visit with the clothes he was wearing and another change in a plastic bag, do you?

 As a single parent, you need a break from the child. And the child needs a break from you. In an intact family, both parents relieve one another from the constant demands of the child. In a divorce situation, the appropriate relief is visitation with the other parent.

If you are the visiting parent, pick up the child on time. Return the child on time. If you’re going to be unexpectedly late, call. Don’t demand that the child keep toys and clothing at your house, just because you purchased them. After all, those items are the child’s, not yours.

A medical condition short of hospitalization is no excuse for denying visitation. The visiting parent can, and should, assume some of the responsibility of caring for a sick child.

Do not use the child as an intermediary to carry messages between you and your spouse. You’re an adult. You know how to communicate.

Visitation is not a time to revisit disputes with your spouse. It’s your time with your child. Use it for that. This is not the time to introduce the child to your new love match.

Do not pump your child for information about life in the other parent’s home. If it’s worth telling, the child will tell you. Did you tell your parents everything that went on when you were 8 or 12 years old? Remember how you replied “Oh nothing” to your mother, when she asked you what you did in school?

Do not ask your child to keep secrets about what takes place in your home.

You do not have the right to refuse visitation because the other parent hasn’t paid child support. The two issues are not related. You have a remedy for nonpayment of child support. You can lose physical care of your child if you deny court-ordered visitation.

Don’t get too upset about your child’s behavior at the beginning or end of each visit. The child’s cries at the end of a visit are perceived by the primary residential parent as tears of joy at being reunited with the parent, and the same outburst is viewed by the visiting parent as tears of sadness at the separation. Plan some kind of activity to allow the child to “wind down.”

It’s not the end of the world if the child misses a Little League ball game or Sunday School because it took place during the other spouse’s visit.

Child support in Tennessee is based on set guidelines that are based on the number of children, the amount of time each parent spends with the children, the income of each parent and additional expenses like health insurance, day care and after-school care. Certain exceptions may require a child support agreement that is different from the guidelines. To arrange an initial consultation to discuss your legal matter, contact the firm online or by calling 423-926-9193.

If you are ordered to pay child support during the pendency of this action, pay it. If you simply can’t make the full payment, at least make a partial payment. The judge will not look kindly upon your claim for increased visitation or physical care when you have failed to contribute to your child’s support.

Child support is money you have paid to the court (if an order has been entered) or money paid directly to your spouse for the child’s support. Child support is not a Schwinn bicycle or Nike shoes that you bought the child during the weekend visit. It is the money that puts bread on the table and pays the rent.

The cost of raising a child from birth to age seventeen is over $$300,000.

In Tennessee, the payment of child support is mandatory with few exceptions. The Tennessee child support guidelines may be found in Chapter 1240-02-04 of the Rules of the Tennessee Department of Human Services Child Support Services Division.

In general, child support is based on the parent’s earnings, income, and other evidence of ability to pay and the parenting schedule.

The Child Support Guidelines presume that both parents contribute to the financial support of the child in pro rata proportion to the actual income available to each parent.

The most important factors that determine what child support is set at are:

• Income of the parties 
• Parenting time that each parent exercises 
• Number of Children 

There a statutory maximum for Child Support in Tennessee:  

• $2,100 per month for one child
• $3,200 per month for two children
• $4,100 per month for three children
• $4,600 per month for four children
• $5,000 per month for five or more children

Payment for uncovered medical expenses for the children:

Most commonly the parents pay Pro Rata in accordance with their incomes or 50/50.

Work related-child care expenses:

 Work related childcare expenses are includable in the child support worksheet and do adjust the child support amount calculated.

Imputed income:

Tennessee law allows the Court to determine if income should be imputed to a parent because that parent is willfully unemployed or willfully underemployed.

Remedy if the other parent is not paying child support:

Start by contacting your local child support office to see if they can help.  You may also consult with our office. 

 Courts do not take nonpayment lightly, the non-paying parent may be subject to fines, imprisonment, and paying the attorney’s fees of the other parent depending what the Court decides to do to address the situation.

Keeping a home you can no longer afford.

While staying put means one less change in the midst of an already life-altering event, it often makes little financial sense. Unfortunately, many clients keep their homes not realizing that upkeep costs are no longer sustainable Remember, there are now two households existing on the same income where previously there was only one.

Taking the house in lieu of liquid assets.

If you are offered the house in exchange for your ex getting comparably valued investments — i.e., a retirement, bank, or brokerage account worth the same amount — think twice before agreeing. On paper the two may be equal, but practically speaking the house is far more costly to maintain.

Not considering the tax implications.

Not all financial accounts are taxed the same way. For instance, if you get the 401(k) plan account worth $100,000 and your ex gets the checking account worth the same, you just got the raw end of the deal. Taking cash from the checking account incurs no tax, while any withdrawals from the 401(k) would be taxed as regular income to you. Many individuals forget to look at the complete cost of each asset, particularly the tax nature of each.

Not getting a court order to get your piece of the 401(k).

If your soon-to-be ex has a 401(k) plan, you must have what’s called a qualified domestic relations order, or QDRO, to access your share. (Individual retirement accounts do not require a QDRO). This court order, which must get final approval from your retirement plan, marks one of the few times you can take money from a 401(k) without paying a 10 percent early withdrawal penalty. You will, however, pay income tax on the amount if you don’t roll it over to an individual retirement account within 60 days. Because the QDRO calls for extra paperwork and a separate order, there is an extra fee.

No life insurance on your ex if you’re receiving support.

Depending on how heavily you rely on child support or alimony the death of your ex could leave you in a financial jam. Life insurance on the person, with you as the owner and beneficiary of the policy, can serve as protection against that potential loss of income. Ask yourself if you have the capacity to meet your financial needs if those payments were to stop.

1. When you have a problem concerning the children or finances, try to work it out with your partner. Don’t let it fester or cause you to overact.

2. Set a telephone appointment time in advance when there will be few distractions.

3. Tell your partner what your concerns are and give your proposal for solution. Listen to your partner’s response. Use “I” statements. Don’t blame or accuse your partner. Focus on the positive.

Example: “I think that Karen is very tired when she goes to school after an overnight at your house. I feel we should coordinate bedtimes at both houses. What do you think?”

Partner: “Stay out of my life. I care about Karen as much as you do.”

You: I know you do. Could we set 7:30 as her bedtime.

Partner: [Yes, no or counterproposal.]

4. If the phone call starts getting out of control, politely end the call and suggest you talk again later. (Don’t try again that day. It does not help to have multiple calls when both of you are anxious and angry.)

5. If you don’t solve the problem in your first phone call, you can either try the next day or write a polite note restating your concern and proposed solution.

6. If you feel physically and emotionally safe, try suggesting that you meet your partner for coffee at a public place to discuss the unresolved issues.

7. Agree in advance to have a red flag rule for face-to-face meetings. A partner who feels threatened or believes the discussion is getting ugly can raise his or her hand and terminate the conversation.

8. If you reach an agreement after the meeting, write a polite note restating the agreement and thanking your partner for cooperating with you.

9. At any point, feel comfortable in calling your lawyer for advice or to help prepare for discussion with your partner. We enjoy being available to help coach our clients. Also, we can help you draft notes or letters for you to send.

10. If it becomes too difficult, harmful, or unproductive, we would be pleased to speak for you to your partner (if unrepresented) or to your partner’s lawyer. However, if at all possible, make every effort to work things out with your partner. Our fees can add up. Also, someday you will have to talk with your partner without lawyers.

If an individual isn’t following his or her obligations under the current order for child support, maintenance or another family law issue, you will need an experienced lawyer who will work to enforce your rights. However, the courts will only enforce orders that exist in the original judgment, which is why it is very important to have a knowledgeable attorney draft the judgment or settlement agreement. At the Law Office of Douglas J. Carter, we assist individuals and families in and around Johnson City, Jonesborough, Erwin and Elizabethton, Tennessee, with family law matters, including post-divorce litigation and modification. To speak with our staff regarding child support modifications, contact the firm online or by calling 423-926-9193.

We will work to have the court enforce the obligations of the other party, including:

Complying with a child custody schedule

Complying with a child custody agreement

Child support enforcement

Following an alimony payment plan

Transferring assets or property

Modification — Change of Circumstances

A modification to a prior order may be necessary as the children get older, if one parent moves or if one parent has a change in income. To grant a modification, the court requires evidence of what it calls a material change in circumstances or a significant variance in the case of child support. Whether or not a material change is valid depends to some extent on the views of the judge hearing your petition to modify. A modification of child support requires an increase or decrease in income of 15 percent or more.

Parents are encouraged to work out an agreement on their own. When an agreement cannot be reached between the parties, attorney Doug Carter can provide mediation services to negotiate the areas in which the parties have differing opinions. If an agreement cannot be met during mediation, the court will make the ultimate decision regarding the requested modification. To schedule a free initial consultation to discuss your legal matter, contact the firm online or by calling 423-926-9193.

If you have children, the parenting plan ordered by the Court (almost always) requires mediation. If you are unable to agree on changes in parenting schedules or rules. Often the cost of this type of mediation is less because fewer issues are involved.

Moving – You may need agreement or court approval.

Tennessee statutes require notice when a parent is moving out of state or more than 100 miles in state. You must give your ex-spouse 30 days notice and if you cannot agree on the terms of a new plan, mediate or have a hearing.