I Have Been Served With Divorce Papers. What Are They?!
I see varying responses from individuals who are served with divorce papers. These responses range from complete devastation to absolute elation. If you have been served with divorce papers, I am writing this to help you understand the process that you are about to enter, whether you wish to or not.
What Are All These Papers?
If you have just received divorce papers, you probably have a stack of documents and no idea what you are looking at. In truth, any time you are served, the opposing party can give you a variety of papers. However, in general, there are a set group of documents that you receive when served with divorce papers.
A divorce case begins with the filing of a Complaint for Divorce. A Complaint puts the recipient on notice of the pending litigation and binds the recipient to respond or risk the filing party receiving and/or being granted whatever relief they are seeking.
In Tennessee, a Complaint must allege a number of things, including grounds for divorce. Grounds are numerous and vary wildly by state, but common grounds in Tennessee include adultery (he cheated on me), abandonment (he left me), irreconcilable differences (this marriage is broken beyond repair), and a catch-all grounds called “inappropriate marital conduct” (he has acted inappropriate towards me).
If the divorce is uncontested, meaning that the parties agree to divorce and agree to a distribution of property and/or parenting time, then the Complaint only needs the grounds of irreconcilable differences. Irreconcilable differences is the court’s way of saying that the parties agree that the marriage is beyond repair. However, the problem with an irreconcilable differences divorce is that a court cannot grant such a divorce without the agreement of both parties.
If one party wants a divorce and wants to force the action on another party, it must file a contested divorce, which includes a grounds for divorce such as inappropriate marital conduct. Inappropriate Marital Conduct is the most common contested grounds alleged in contested divorces. This is likely because every spouse who has settled on divorce usually believes that the other party has acted inappropriately.
If you are holding a Complaint, make sure to look for what grounds are listed. Most likely, the other party has filed several grounds against you. Understanding the grounds upon which your divorce is based is an important starting point to understanding the entire process.
When you are served with the Complaint for Divorce, you will also receive a Summons, which puts you on notice that you have thirty (30) days to file an Answer to the Complaint. If you fail to file an Answer within thirty (30) days of the day you are served, the other party can file a Motion for Default and the Court may award the other party whatever relief they are asking for.
Restraining OrderWhen you are served with the Complaint for Divorce and Summons, you will also receive a statutory Restraining Order from the Court, which effectively prevents you from engaging in certain behavior. There are a number of actions that each party is prohibited from doing. For a detailed listing of the statutory Restraining Order in Tennessee, see T.C.A. § 36-4-106.
The most common restriction regarding property and debts is that each party is prohibited from making expenditures other than those normally made according to the parties standard of living. Additionally, each party is prohibited from voluntarily canceling, modifying, and/or terminating insurance policies, including but not limited to life, health, disability, homeowners, renters and automobile.
The most common restriction regarding minor children is that each party is prohibited from harassing, threatening, assaulting or abusing the other party and is also prohibited from making disparaging remarks about the other party to or in the presence of the parties’ minor children. Additionally, each party is prohibited from relocating the children more than one hundred (100) miles from the marital residence.
What Is My Next Move?
If you have received divorce papers, your next move depends on what you want out of the process. If you agree to the divorce and want to proceed in an uncontested divorce, then your path is much more peaceful than if you disagree with every grounds for divorce listed in the Complaint. In a typical divorce action, the following are standard options when served with divorce papers.
File an Answer
As stated above, the recipient of a Summons and Complaint is given thirty (30) days to file an Answer to the Complaint. An Answer, quite simply, is a response to the Complaint. The party writing an Answer responds to each paragraph of the Complaint received.
In responding to the Complaint, the party writing an Answer must respond to every allegation in the Complaint with one of the following responses: (1) admit; (2) deny; (3) deny for lack of sufficient information upon which to admit or deny. A party can also mix those responses. For example, a party can admit in part and deny in part or admit in part and deny the remainder for lack of sufficient information upon which to admit or deny.
File a Counter Complaint
When you file an Answer, you also have the option of filing a Counter Complaint. By filing only an Answer, you have responded to the party who filed the action. By filing an Answer and a Counter Complaint, you have responded to the party who filed the action and also leveled the playing field from a pleadings standpoint.
In a Counter Complaint, a party can set forth the relief it requests and also the facts upon which such relief is requested. Without filing a Counter Complaint, the only relief that is requested of the Court is the relief requested in the Complaint for Divorce by the party who filed the action.
Can’t We Just Get an Agreed Divorce?
Often, a potential client sits in my office and explains how him and his wife agree that they need a divorce and that they agree on almost everything. The key word in such a conversation is almost.
In an agreed divorce, which is filed under irreconcilable differences grounds, the parties must agree on the division of all property, both real and personal, which can be incorporated into a written and signed Marital Dissolution Agreement (MDA). An MDA is a written contract entered into by both parties which sets forth, in detail, who receives what marital property. If the parties cannot agree on the distribution of all property, then the Court would have to enter an Order to dispose of the property, and an agreed divorce may not work.
In an agreed divorce, the parties must also agree on the allocation of parenting time if the parties have minor children, which can be incorporated into a written and signed Parenting Plan. A Parenting Plan is a written contract entered into by both parties which sets forth, in detail, which party the minor children will live with and what visitation the non-residential parent will receive. Similar to the MDA, if the parties cannot agree on the allocation of parenting time, then the Court would have to enter an Order assigning parenting time to each party, thereby negating the likelihood of an agreed divorce.
In short, unless the parties agree on everything in the divorce, namely to the distribution of property and to the allocation of parenting time, then an agreed divorce may not be the proper route for them to pursue. It is important to note that, even if the parties agree to the divorce, one attorney cannot represent both parties. Instead, an attorney can represent one party, draft the required paperwork, and deliver the required paperwork to the opposing party. However, the attorney cannot provide any legal advice or services to the opposing party due to his attorney-client relationship with the party who filed for divorce.
If you have received divorce papers, but do not know what you are currently holding in your hands, I hope this article has helped you understand the various documents and obstacles in your future.
For more information on the divorce process in Rutherford County, Tennessee, which comes after you have been served with divorce papers, see my Legal Guide on Avvo.com.