May 12th, 2010

Presumption of Divorce in Tennessee

Normally, a divorce in Tennessee occurs when one or both parties decide to end the marriage and file appropriate papers. Occasionally, however, a divorce is presumed after a spouse disappears.

If the spouse is missing with no evidence that he or she is still alive being shown, a marriage entered into by the other party more than five years after the disappearance is presumed to be valid. This presumption can be rebutted by a showing that the other party is still alive, but there is no requirement that the abandoned or widowed party perform a full investigation. Courts in Tennessee are historically lenient with spouses left alone for more than five years, and are quick to establish a divorce when appropriate – especially if there are children who will be affected by the decision.

If there is a well-founded rumor that the missing party has died, Tennessee courts will presume that death and recognize a new marriage without the necessity of a divorce after two years have elapsed. The statute that allows this, called an “Enoch Arden” statute, is often seen applied in situation like the World Trade Center bombing on 9/11 or after a natural disaster – situations where it is likely that the specific person died, but no identifiable remains were recovered.
If the party presumed dead returns after his or her spouse has remarried, the spouse formerly presumed dead has the option of renewing the former marriage or dissolving it. If the marriage is renewed, the subsequent marriage is voided as a bigamous marriage.

Statutes like the ones mentioned above exist to save the expense and stress of divorce from a party missing and presumed dead. Obviously, a missing spouse is an emotional situation; unfortunately, it can also come bundled with complex legal issues. If you are involved in a divorce case, presumed or not, you should have an attorney to represent your interest. For more information on divorce or other family law issues, click here.

April 23rd, 2010

Duration of Child Support Obligation

As discussed before on this blog, child support is a payment made from a non-custodial parent to a custodial parent to cover necessary expenses in raising the child. The payment is based on the amount of time each parent spends with the child and the respective incomes of the parents, with some other factors (daycare, insurance, etc.) included. Essentially, the goal is for each parent to pay the same percentage of income for the percentage of time that the other parent has the child.

Most people assume that the obligation to pay ends when the child turns eighteen, and this is often the case. In fact, courts in Tennessee do not have the authority to order child support past that age under most situations. An agreement between the parties (such as is often entered pursuant to a divorce) requiring support after the child or children reach the age of eighteen is enforceable as a contract, however. Most often these provisions are put in place to require support so long as the child or children are enrolled in school or in situations wherein the child or children have a disability or medical problem reasonably requiring parental support past the age of eighteen.

Of course, all that was assuming that child support was paid as ordered promptly. Any child support payments that are not made are neither forgotten nor forgiven. In fact, these unmade payments – arrearages – accumulate interest and can very quickly reach amounts in excess of $10,000 or more for a monthly obligation of $200. Courts in Tennessee have no authority to modify the amount of support owed retroactively, which means that courts in Tennessee have no authority to forgive or reduce arrearage amounts. The amount of child support ordered by the court must be paid eventually.

Child support can be a confusing issue and you should not risk racking up thousands of dollars due. If you are involved in a situation involving child support payments or have been charged with civil contempt for failure to pay child support, you should consult an attorney. For more information on child support and other family law issues, click here.

April 5th, 2010

Prenuptial Agreements

A prenuptial agreement is a contract entered into by two parties before marriage. The contract normally covers property owned by either of the parties before the marriage and the disposition of that property upon divorce or death of either party. When the marital property is divided equitably during divorce, property owned by the parties separately before marriage is typically not included; if the parties have preserved and maintained separate property together, however, or if the property has appreciated significantly in value, it may have become marital property. Having a contract in place to preserve its non-marital status is the only way to ensure that the disposition of the property is as the owner desires.

The requirements for a prenuptial agreement are essentially the same as any other contract. Both parties must enter the contract freely and knowingly in good faith. Both parties must disclose their assets to the other fully and fairly before the agreement is made. “Fully and fairly” is a subjective standard and is decided based on the education and general sophistication of the parties, the objective fairness of the terms, and basically the circumstances surrounding the agreement. It is not necessary that every item owned by either party be listed specifically, but that each party be made aware of the total assets and approximate value and number thereof.

A prenuptial agreement is considered to be signed freely and without duress even if the marriage is offered only on the grounds that the agreement will be signed. The agreement should be made in writing, although in at least one case an oral agreement was honored. Of course, in that instance (Hall v. Jeffers, 767 S.W.2d 654 (Tenn. App. ES 1988)), the husband’s brother murdered the wife on the day that the two were to be divorced. Because the two parties had sworn to an oral prenuptial agreement in the divorce pleadings, the court held the agreement to be enforceable and that the husband was not a surviving spouse for purposes of the wife’s estate.

Drafting and enacting a valid prenuptial agreement can be a complicated issue and should not be undertaken lightly. If you need a prenuptial contract or have questions about a prenuptial agreement already in place, you should consult an attorney. For more information on marriage and other family law issues, click here.

March 17th, 2010

Breaking Developments in Child Custody

As reported in The Tennessean, a bill in front of the Tennessee legislature proposes to require custody to be split equally unless there is a showing of “clear and convincing evidence that one parent is unfit.” A clear and convincing evidence standard is a hefty one, lying somewhere between “more likely than not” and “beyond a reasonable doubt.”

The repercussions of this bill, if it passes, will be interesting to see; obviously, there are benefits to presuming that custody should be split equally, but there are also detriments to requiring such a high standard of proof. First, it should be noted that this only applies to cases wherein an agreement for custody cannot be reached by the parties (5-10% of divorces, according to article from The Tennessean linked above; this amount is presumably excluding divorces with no children involved). In cases with no foreseeable agreement and no clear and convincing evidence that one or both parents are unfit to have custody, it seems reasonable to presume that both parents should split the custody evenly. In cases where both parents played a major, if not necessarily equal, role in raising the child(ren) before the divorce, it is hardly fair to deprive one of custody. In some cases, one parent has stayed at home to raise children while the other parent has maintained a career to support the family – in those cases, it is reasonable to say that both have played a role in raising the child and that neither is an unfit parent, even if the working parent was not present with the child the majority of the time.

The detriments if this bill were to pass are many, however. Splitting custody equally, even between two equally perfect parents, is stressful to a child. If the parents live in separate school districts, where should the child attend school? Which parent’s house is the child going to recognize as “home?” A common solution, historically, to both of these has been to declare a primary custodian and then allow ample visitation during school holidays. If custody is to be split equally, though, having a child for two days on the weekend is not the same as five days during the work/schoolweek. If the parents live in different states, the complexities of actually fulfilling the order grow to the absurd – should the child be transported back and forth every six months and have no physical contact with the other parent for half a year?

In addition, if this bill passes it will likely be rare to see a contested divorce without accusations of unfit parenting being thrown around. Not only does this impact judicial efficiency, this also has a detrimental effect on the children involved. A cornerstone of family law has long been that the best interests of the child trump almost every other consideration, and further that each parent must make an effort not to insult the other in the child’s presence. This bill essentially offers a reward for doing just that.

Child custody is a major issue in most divorces and it is important to understand the rights and obligations of parents during and after the divorce proceedings. If you are involved in a custody dispute or divorce, you should seek legal counsel. For more information on custody and other family law issues, click here.

March 15th, 2010

The Rights of Natural Parents

When discussing family law and child custody, the rights of the parents are often restricted in favor of the “best interests of the child.” Courts do, however, give great deference to the rights of the natural parents. A family court in Australia recently issued a judgment showing just how much that court respect parental rights.

As reported here, the Family Court in Hobart, Tasmania, heard a visitation/custody case wherein the father of the two girls involved has been convicted on three charges involving child pornography. The court did order some concessions, in light of the convictions: the girls must share a bedroom in the home until the younger reaches the age of fourteen, the father must have an adult guest stay overnight if his daughters are staying overnight, and the girls must have a lock on their bedroom door in order to keep their father out.

We are unaware of any similar cases in Tennessee, but the scenario that played out in Australia is certainly possible in this state. I think most people are surprised by this result – certainly, very few family law attorneys would expect a court to order overnight visitation to a father convicted of sexual crimes involving a child. The compromise reached in Tasmania is an interesting solution to the issue and reflects the strength of parental rights, whether right or wrong.

Parental rights in Tennessee are an important consideration in custody and visitation cases. If you are involved in a custody or visitation case, you should consult an attorney to ensure that your rights are represented. For more information on parental rights and other family law issues, click here.

March 9th, 2010

Conduct of the Parties after Marital Dissolution

After a marriage has ended, the two parties often must maintain some form of relationship. Most commonly, that relationship is related to the children of the marriage – until those children are eighteen, the parents must meet the terms of their parenting agreement. There is a high likelihood, as well, that there are common friends who must either be divided between the parties or share time. If the parties are living in the same area, there is even potential that they will be shopping at the same time and in the same location.

The most pertinent example is, of course, that of transferring children between parents and the behavior of the parents in the presence of the children. Most parenting agreements and/or divorce decrees contain language that the parents must act civilly when together with the children present; in fact, under Tennessee law parents are required to refrain from speaking or acting in such a way as to influence children against the other parent.

In other situations or in marriages that do not involve children, the majority of the team the divorced couple is treated as if they had never been married. There is normally no requirement that they avoid contact, nor are they required to communicate unless ordered by the court. In some hotly disputed divorces, the court may issue orders of protection preventing each party from contacting the other. In the absence of a court order, though, there are no specific guidelines that must be followed by a divorced couple that do not apply to social interactions with anyone else.

If you are currently or previously have been involved in a divorce, your ex-spouse does not have a right to harass you or stalk you, nor to slander you. If you feel that your ex-spouse (or anyone else) is behaving inappropriately, you should contact an attorney. For more information about marital dissolution and other family law issues, click here.

March 3rd, 2010

Requirements for Annulment in Tennessee

We have touched briefly on the subject of annulment once before on this blog, but there is enough confusion about the topic that we feel it is worth another look. At least once each week our office gets a call for someone interested in a divorce or annulment. In Tennessee, we have to explain, an annulment is a highly specific form of marital dissolution.

In order to be eligible for an annulment in Tennessee, the marriage must have been void due to public policy or voidable at the discretion of the “victim” party. A marriage void due to public policy is generally one of three situations: a homosexual marriage, an incestuous marriage, or a bigamous marriage. A marriage voidable at the discretion of the “victim” party is usually voidable because consent to marriage was not properly available. This can arise due to an underage party, duress, mistake, or lack of capacity to contract. A marriage can also be voidable due to impotence in some situations, or if the woman becomes pregnant by a man other than her husband without her husband’s knowledge.

A void marriage is treated by the state of Tennessee as if it had never occurred, and is thus eligible for annulment. A voidable marriage is treated by the state of Tennessee as if it had occurred, but should not have and can be eliminated legally as if it had never occurred. Annulment is, then, not so much a form of ending a marriage but a method of giving official and legal recognition of a false marriage.

In most situations, parties to a divorce ask for an annulment because they regret the decision to marry. If that decision was made knowingly by two non-related single adults of opposite gender with the capacity to contract, an annulment is probably not available. A divorce is certainly available, however.

If you are in a marriage that is not valid or is not working out well, an annulment or divorce may be the correct answer. You should consult an attorney in your area to discuss your options. For more information on annulments, divorce, and other family law issues, click here.

February 15th, 2010

Obligation to Pay Child Support

A child support obligation generally arises as part of a permanent parenting agreement ordered by the court during a divorce or custody action. The amount of child support ordered is calculated based upon the time that each parent spends with the child; the income of each parent; the obligations of each parent to provide insurance, day care services, and the like; and other similar factors. Because of this, there is not much room to adjust the amount of support owed. There is a process through which the amount owed can be changed, but any modification is done based on the same formula, so there has to be a material change in circumstance. Most commonly, a modification is sought when one parent changes or loses his or her job.

If either parent fails to follow the mandates of the parenting plan, either by refusing to pay child support or by refusing to allow the other parent the proscribed visitation, that parent can be charged with contempt of court and will be given a hearing to explain why he or she has not followed the court’s orders. It is important to note that even if the parent has a valid excuse for not paying support, the amount of arrearage (the amount unpaid) is still due and will collect interest until paid. In most courts in Tennessee, the list of valid excuses is relatively small. For example, unemployment is probably not a valid excuse; neither is poor health unless the parent has gone on disability.

The most important thing that a person in contempt can do before the hearing is get back on track and start following the order. Even if a person has managed to get fifty thousand dollars behind on payments, the court would like that person to be making payments. If the court does not recognize a valid reason for violating the order, the court can order the offender incarcerated for up to 180 days. Remember, though, that the court is most interested in these cases in seeing that the order is being followed and will not throw anyone in jail on a whim.

Child support and contempt are complicated issues; if you are charged with contempt or need to modify a permanent parenting agreement you should consult an attorney. For more information on child support and other family law issues, click here.

February 2nd, 2010

Revisiting Grandparents’ Rights

An early post on this blog discussed the rights grandparents have to visitation or custody of their grandchildren. The general answer, of course, is none unless a court determines that it is necessary for the best interests of the child. Although we are focused on Tennessee law, obviously, a blog covering Indiana law (no affiliation to our blog) posted about an interesting bill passing through the Indiana legislature that is worth a mention.

Like every state, Indiana requires that a grandparent show that visitation is in the best interests of the child in order for a court to order visitation; unlike Tennessee, however, the Indiana legislature has specifically provided that a grandparent may sue for visitation if the custodial parent is single, divorced, or widowed. In Tennessee, grandparents may only seek visitation when the child has been adopted by a non-relative and neither original parent has custody rights. There is, of course, merit to both positions – a parent’s right to make decisions regarding the development of his or her child is paramount, but it may be best for a grandparent to have some influence as well.

If this Indiana bill passes, however, it will allow grandparents the right to sue for visitation even if both parents are alive, happily married, of sound mind, and raising their children as they see fit. While it is probably best for children to have involved grandparents, it seems unusual for a legislature to consider taking parental rights away without any showing of… anything, really. It would be a grand victory for grandparents, of course. If it passes, it will be interesting to see the results and if other states follow; it will also be interesting to see if the Supreme Court of the United States weighs in.

Grandparents’ Rights are a hot topic right now, and are not always clear. If you have questions or concerns about your rights as a parent or grandparent, you should consult an attorney. For more information on grandparents’ rights and other family law issues, click here.

January 25th, 2010

Duration of Child Support Obligation

An obligation to pay child support arises out of a court order and essentially is a pro-rated share of the costs of raising a child paid by the parent who has less time with physical custody of the child. Child support payments are meant to provide food, shelter, medicine, clothes, and other essentials for the child – gifts and niceties are out-of-pocket expenses and the court will not order a parent to provide funds for them in most circumstances. A parent does not have an obligation to provide gifts for his or her children, or even to like them, but a parent does have an obligation to provide support if so ordered by the court.

The order by the court mandating support will generally contain language limiting the obligation to pay. Most commonly, support is required so long as the paying parent does not relinquish his or her parental rights and the child in question is under age eighteen. Most importantly, the obligation exists until the court orders otherwise. The amount of child support owed is based in large part on the ability to pay at the time of the order. If the parent obligated to pay loses his or her job the following week, the obligation to pay remains, even if the loss of employment was for a valid medical reason. If a child for whom support is ordered is later adopted, it is possible that the obligation to pay from that point on does not exist. The obligation to pay up until the moment of adoption certainly exists, and the obligation after may exist, depending on the order.

If you are obligated to pay child support and the situation has changed significantly or you are entitled to receive child support and are not doing so, you should consult an attorney in your area. For more information on child support and other family law issues, click here.