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UNCONTESTED DIVORCE:
Advice for Persons Who Want to Represent Themselves
Read this booklet before completing any forms!
Copyright © 2010, Southeast Tennessee Legal Services, www.selegal.org.
Non-commercial use permitted.
Table of Contents |
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INTRODUCTION |
1 |
THE PURPOSE OF THIS BOOKLET |
1 |
SHOULD YOU HIRE A LAWYER? |
1 |
GETTING STARTED |
1 |
GENERAL INFORMATION |
1 |
THE FORMS FOR DIVORCE |
3 |
THE COMPLAINT |
4 |
THE CIVIL CASE COVER SHEET |
6 |
THE DIVORCE CERTIFICATE |
7 |
THE SUMMONS |
7 |
PRIVATE SERVICE OF PROCESS |
8 |
SERVICE BY PUBLICATION |
8 |
AFTER THE COMPLAINT IS FILED |
8 |
PARENT EDUCATION CLASS |
8 |
TEMPORARY RELIEF |
9 |
ALTERNATIVE 1: OBTAINING JUDGMENT BY DEFAULT |
9 |
ALTERNATIVE 2: THE MARITAL DISSOLUTION AGREEMENT |
10 |
ALTERNATIVE 3: YOUR SPOUSE APPEARS IN COURT OR HIRES AN ATTORNEY |
11 |
THE FINAL DECREE |
11 |
THE HEARING BEFORE THE JUDGE |
12 |
AFTER THE HEARING |
14 |
MODIFYING OR ENFORCING THE FINAL DECREE |
14 |
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INTRODUCTION
The Purpose of This Booklet
This booklet is written to assist the persons whose start cases and whose spouses are not expected to contest the granting of divorces. A separate booklet describes how contested cases work.
Should You Hire a Lawyer?
You are not required to have a lawyer to dissolve your marriage. The decision to proceed with or without a lawyer is up to you. Many people find that the paperwork required is complex. If you decide not to use a lawyer, your spouse may still use a lawyer and you may be at a disadvantage if you proceed without a lawyer. If you do not have a lawyer you will be expected to know all the laws and court rules that apply to your case as if you were a lawyer.
The court may make decisions that could have a significant impact on you, such as requiring you to pay money to your spouse, garnishing your wages, or limiting when you can see your child. Free legal advice may be available to you through a volunteer program organized by the bar association in your county. If you are the victim of domestic violence, there may be an additional program to help you obtain free legal advice.
To find out more about hiring a lawyer or obtaining free legal assistance, consult:
your local bar association
the Tennessee Bar Association at www.tba.org/LawBytes/findalawyer.html
the Tennessee Alliance for Legal Services at www.tals.org
You may be able to hire a lawyer for a portion of a case – such as a hearing before a judge or a review of papers you propose to file – under rules of the Tennessee Supreme Court.
JUDGES AND CLERKS MAY NOT GIVE YOU LEGAL ADVICE OR ASSIST YOU WITH YOUR PAPERWORK.
GETTING STARTED
General Information
In Tennessee a person may get a divorce without having to prove any wrongdoing. This is when “irreconcilable differences” exist. There are also a number of specific reasons that can be cited by either party. These include “inappropriate marital conduct.”
Choosing the Court
Cases can usually be filed in either CIRCUIT or CHANCERY courts. (In a few counties, there are other courts in which you may file.) There is no legal advantage in filing in one type of court or another.
Starting the Case
A divorce case is started by filing a Complaint for Divorce with the clerk of the court and by serving it with a Summons on the other spouse. (Forms for filing with the court are in bold.) The spouse filing the Complaint is the plaintiff. The Complaint asks the court to dissolve the marriage. The Complaint also tells the court what the plaintiff would like the court to do concerning the parties' children, property, and debts.
Filing Fees
There is a filing fee for filing the Complaint, unless the court decides the plaintiff is unable to pay the fee. The amount of the fee is usually about $250, depending on the county and what kind of legal process must be served. The cost is about $20 greater if process is served in another county or by the Secretary of State.
If the plaintiff believes he or she qualifies for financial relief, he or she should file an Affidavit of Indigency. The court will decide whether to defer – but not forgive – the filing fee. (At the conclusion of the case, the judge will decide who must pay the court costs.)
If the court decides the fee must be paid when the case begins, the plaintiff must also file a Cash Bond (an advance payment of an amount, usually $500, that is refundable if court costs are not imposed on the plaintiff) or a Surety Bond (where an insurer guarantees payment of court costs on a form it prepares). If the plaintiff has an attorney, a Cost Bond may be filed, and by signing this document the attorney guarantees payment of court costs.
How Long Does It Take?
When you and your spouse seek a divorce because of irreconcilable differences, you can file a Marital Dissolution Agreement and complete the process as soon as 60 days (90 days if there is a minor child) after the filing. In other cases where the defendant does not contest the divorce, it usually takes longer than 90 days. Judges are apprehensive about the fairness of granting divorces by default in as few as 30 days – the minimum -- after legal papers are served on a defendant. Note: if your spouse does file an Answer and does contest the divorce after all, it usually will take several months, perhaps a year or more, and the procedures discussed in another booklet concerning contested divorces will apply.
Are the Papers that are Filed Available to the Public? Yes.
Note to Persons Receiving Families First
If you receive assistance from the State of Tennessee on behalf of a child, you have assigned your right to child support to the State, and you need to notify your local Child Support
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Office of your filing for divorce. It might intervene so as to protect the State’s interest and to make sure that payments are made consistently with the State guidelines for child support.
The Forms for Divorce
We offer legal forms that you may use in divorce cases. We strongly urge non-lawyers to use these forms to represent themselves. These are the instructions to help you fill out the forms.
Be sure to make extra copies of all the documents you file with the court and serve on your spouse. When you file documents at the court clerk's office, be sure to stamp a copy of the document you retain with the clerk's office stamp "Received (date)" to prove you actually filed the document. Keep an organized file of all court papers, especially proof of service of process of all documents, and letters concerning your case.
These instructions are for cases where there is a dependent child. But we do not discuss
parenting plans, the subject of a separate booklet. They can also be used if you and your spouse don’t have a child.
Note: make an extra copy of the forms before you start so that, if you make a mistake and need to start over, you won't have to get another form.
Forms Needed if Your Spouse WILL Sign a Marital Dissolution Agreement
If your spouse will sign a Marital Dissolution Agreement, you should have the following
forms:
Civil Case Cover Sheet
Complaint for Divorce
Divorce Certificate (Form PH1682 from the Department of Health but usually available at the court clerk’s office where your case is filed)
Affidavit of Indigency if you cannot afford the filing fee
Marital Dissolution Agreement
Permanent Parenting Plan if there is a dependent child from the marriage
Parenting Class Certificate (no form required) showing both of you attended the required classes
Notice Regarding Insurance Coverage to be filled out by the spouse with health insurance to inform the other spouse about its termination
Wage Assignment Order if the Permanent Parenting Plan provides for this form of payment of child support, as it often does
Final Decree
Title IV-D Information that is needed if a parent of child is receiving assistance from the State of Tennessee
Forms Needed if Your Spouse Will NOT Sign a Marital Dissolution Agreement
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If your spouse will not sign a Marital Dissolution Agreement, BUT you do not expect him or her to contest the divorce, you should have the following forms to start your case:
Civil Case Cover Sheet
Summons, whether the legal papers are to be served by a deputy sheriff or instead by someone on your behalf. We recommend service by a deputy sheriff.
Complaint for Divorce
Divorce Certificate (Form PH1682 from the Department of Health but usually available at the court clerk’s office where your case is filed)
Affidavit of Indigency if you cannot afford the filing fee
Statutory Injunction against Both Parties
Motion for Default Judgment
Order Granting Default Judgment
Permanent Parenting Plan if there is a dependent child from the marriage
Parenting class certificate (no form required) showing both of you attended the required classes
Notice Regarding Insurance Coverage to be filled out by the spouse with health insurance to inform the other spouse about its termination
Wage Assignment Order if the Permanent Parenting Plan provides for this form of payment of child support, as it often does
Final Decree
Title IV-D Information that is needed if a parent of child is receiving assistance from the State of Tennessee
The Heading in Each Form
It is easy to overlook this portion of each form. You must fill in the county in which the court sits and the court you have selected. (Reminder: There is no legal advantage in being in Circuit Court instead of Chancery or another court.) The clerk will assign the case number, so
leave this portion of the form blank in the Complaint, but fill it in the other forms. In some counties, there are multiple “divisions” or “parts” because there is more than one judge in the
same court. The clerk will complete this part in the Complaint, if it is necessary, and you must complete it thereafter in other forms.
Filing the Forms
Clerks deserve your respect and can make your life easier by pointing out, for example, if you have overlooked a document. Also, if you file documents in person, as usually is desirable, try to avoid busy times like the last 45 minutes of the day.
The Complaint
The Complaint asks the court to dissolve your marriage and gives the court general information about your marriage. The Complaint also tells the court how you would like to have your property and debts divided and what you would like the court to do concerning your child.
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Most of the Complaint is self-explanatory, and this discussion concentrates on what may not be clear. The words in CAPITAL LETTERS are the titles of sections of the document or the pertinent parts of a section.
NAME OF WIFE. A statute requires that a wife’s maiden name be included in this part of the Complaint. Her married name can be used in all other places of the forms, such as the heading.
ADDRESSES. If you do not want your address (or that of a child) to be given because you are a victim of domestic violence, you can put in a post office box number if you have one. If you think this may not prevent your spouse from finding out where you live, ask a domestic violence agency for assistance.
DATE AND PLACE OF THE MARRIAGE. The county and state are preferable. Use the city if you don’t know the county. If married outside the United States, list the city (or province)
and country.
SEPARATION. Indicate the date as nearly as is possible.
CHILDREN. Children of other marriages are not to be listed. A child of this marriage should be listed if he or she is under 18. A child 18 or over may be dependent if the child is physically or mentally disabled. If so, he or she should also be listed.
PREGNANCY. If the wife is pregnant, you must later advise the court whether the husband is the father of the child and whether paternity is contested.
COURT ORDERS CONCERNING A CHILD. The court must be sure that it can lawfully make a decision affecting a child. Ask for legal assistance if there is any doubt about how to complete this portion of the Complaint. Include information, for example, about juvenile proceedings involving custody or child support. Court orders in other states must be disclosed, as well as those of Tennessee courts.
ORDERS OF PROTECTION. If one is in effect, it may already contain directions about alimony or child support, and the judge or chancellor needs to know this.
THE COURT. This section enables the judge or chancellor to determine whether he or she has the power to grant the divorce and to give the relief that is requested. Generally you or your spouse must live in Tennessee for six months before you are allowed to file for divorce. However, if grounds for divorce arose during the time you were a resident of Tennessee, you do not have to wait six months before filing. The court also wants to know what county you or your spouse lived in at the time of the separation or live in now.
GROUNDS FOR DIVORCE. You may state one or more grounds for the divorce. It is usually better to list two grounds for divorce – not just irreconcilable differences – because the other spouse may change his or her mind about a Marital Dissolution Agreement.
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PROPERTY. State whether you would like the court to divide assets. You may need legal assistance in dividing property. Mistakes are common, especially with real estate and
pensions. It is often better to ask the court to review your proposed division if you do not have a lawyer. See the discussion below regarding “marital property” and “separate property.” Tip: be
sure you have a copy of all titles to vehicles and boats.
DEBTS. State whether you would like the court to divide your debts. Legal advice can be important here too. It is often better to ask the court to review your proposed division if you do not have a lawyer.
ALIMONY. You may need legal assistance in reaching a decision about whether to ask for alimony.
INJUNCTIONS. First, state whether an Injunction is needed because of the defendant’s behavior. Then, state whether a Statutory Injunction against Both spouses will be in effect because of Tennessee law applying unless irreconcilable differences are the only ground for the divorce.
OTHER MATTERS. This is the place for statements about matters not specifically covered anywhere else. One example might be a claim that one spouse has against the other arising out of an automobile accident.
Relief Requested
This section summarizes your requests. You must indicate what you are asking the court to do. If you do not ask, you will not receive.
Signature and Verification
Once the preceding parts are completed, sign and date the Complaint. You must also complete and sign the verification at the end of the Complaint before a notary public. You can usually find a notary public at a bank near you. Remember: if you are attaching a Marital Dissolution Agreement or a Proposed Parenting Plan, it must also be verified in front of a notary public. You and your spouse may sign the Marital Dissolution Agreement or Parenting Plan at different times.
The Civil Case Cover Sheet
It lists the information required by Tennessee courts. We will discuss here the portions of the form that may need explanation. The words in CAPITAL LETTERS are the titles of sections of the document.
ORIGIN. The plaintiff will usually specify that the case is an “original proceeding” but it might be a “case reopened” if the case was dismissed earlier.
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TYPE OF ACTION. Answer either “divorce with minor children” or “divorce without minor children.”
AFFIDAVIT TO PROCEED IN FORMA PAUPERIS OR COST BOND. Specify whether you will file n Affidavit of Indigency (if you cannot pay court costs), a Cost Bond (if you have an attorney who will furnish it), a Cash Bond (if you will leave a cash deposit), or a Surety Bond (if an insurance company will guarantee payment of costs).
JURY DEMAND. Leave blank.
RELATED CASES. Generally not applicable. However, an Order of Protection may be pending or have been granted in another case. Proceedings in Juvenile or Family Court in your county (or involving a child custody dispute in another county or state) might be related because they affect the power of the court to decide the case. In case of doubt, list the other case.
TYPE OF SERVICE REQUIRED. The answer will usually be either the “local sheriff” or “other.” In the latter case, specify that you will use another adult to serve process.
The Divorce Certificate
Use Form PH-1682 from the Tennessee Department of Health. (No substitutions for it are currently permitted, even if they have been created by scanning the government form.) It lists information required by Tennessee law. Answer all of the questions except those that cannot be completed until the case is over and the court clerk will answer them. These exceptions are Item 11c (unless there are no children) and Items 14a through 14h.
The Summons
The Summons gives your spouse written notice that you have started a divorce case. Print or type the name of the CIRCUIT, CHANCERY OR OTHER COURT where you are filing for divorce, along with the case number and the name of the county. Fill in the address of your spouse (the defendant) as well as your own (the plaintiff). Show that the Summons is to be served on your spouse at the address shown in the Complaint. Remember: if you are filing a signed Marital Dissolution Agreement, no Summons is needed.
In the Summons, you may use either a home address or a work address for the defendant. If you know the defendant’s phone number or a time of day that the defendant will most likely be at that address, put that in the Summons as well. Any information you can give the Sheriff will be helpful in serving him or her.
About two weeks after the date the Complaint is filed, you should call the court clerk and ask if it has been served on the defendant. (You must give the clerk your case number!) If the deputy sheriff is successful in serving the Complaint on the defendant, he or she will fill in the back of the Summons with the date that it was served on the defendant. If the deputy is unable to locate the defendant and serve the Complaint, he or she will send the Summons back to the clerk and on the back of the Summons will indicate that the defendant is not to be found in that county.
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If you know of a new address where the defendant might be found, you may send a new Summons to the clerk. Write on the top of the summons “ALIAS” which means that this is the
second Summons issued in your case. Be sure and put the case number on the Summons!
The form calls for you to give your own address. Use the one you listed in the Complaint. If you are a victim of domestic violence and do not want your spouse to know your address, you can put in a post office box number if you have one. If you think this may not prevent your spouse from finding out where you live, ask a domestic violence agency for assistance.
Private Service of Process
A copy of the Summons and the Complaint usually must be personally delivered to your spouse. (However, service of the documents is not needed if your spouse signs the Marital Dissolution Agreement.) There are many ways to serve legal papers and, for this reason, you may want to consult our separate booklet on this subject. Service by a deputy sheriff is not required though we do recommend it. One of the other methods is delivery by a person who is 18 years of age or older. We will discuss this alternative here.
You may not serve the Summons and Complaint on your spouse yourself. The person serving your papers should leave the papers with your spouse. If your spouse is not at home when the papers are delivered, the papers may also be served by leaving them with any other responsible person who resides with your spouse.
Once your papers have been served, the person serving them must complete the Return of Service that is part of the Summons. To complete this form, that person should:
Fill in the date, time and place of service.
Sign and date the Return of Service and have the form verified by personally appearing before a notary public or the court clerk.
After finishing these steps, file the original Summons with the clerk of the court and keep a copy for your records.
Service by Publication
If your spouse cannot be found in order to serve him or her personally, you may serve him or her by publication. This type of service, which is essentially publishing notice of your Complaint in a newspaper, is only useful in obtaining the actual divorce. You must get personal service if you want to dispose of debts, set child support or alimony. More information on this type of service is found in a separate booklet.
AFTER THE COMPLAINT IS FILED
Parent Education Class
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