Archive for November, 2009

Modification of Alimony

Monday, November 23rd, 2009

In an early post on this blog, we discussed the various types of alimony available in Tennessee and how they are calculated. It is sometimes necessary, however, to modify the amount of alimony because of a change in circumstances to one or both parties.

In solido alimony (a single lump sum payment) is essentially non-modifiable unless both parties agree that it should be changed. Transitional alimony is also non-modifiable without a court order – these two forms of alimony are, obviously, temporary and should be set based on the status at the end of the marriage. Theoretically, no changes can occur before the obligation to pay runs out because there is not enough time.

Rehabilitative and in future (periodic) alimony can be modified or terminated in several ways. If either party dies, the obligation to pay ceases. If the recipient party cohabitates with a third party, the obligation to pay ceases. More importantly to most people, alimony can be modified by court order if one or both parties suffer (or enjoy) a “substantial and material change of circumstances.” The change must have occurred after the order was entered – otherwise, it would not be a change, but would instead be the way things were. The change furthermore must have been unforeseeable – this is not significantly restrictive because a foreseeable change would have been factored into the alimony calculation.

The determination of “substantial and material” is a matter of the court’s discretion. If there is a possibility that alimony in your case should be modified, you should consult an attorney licensed to practice in your state. For more information about alimony and other family law issues, click here.

Notice of Divorce Proceedings

Friday, November 20th, 2009

One complaint people make regarding divorces is that the proceedings can take too long – in a complex case, a divorce can take months or even years to complete. Imagine receiving word from the local court that your divorce was final several months ago; now imagine that you did not realize a divorce action was pending against you. A divorce is always life-changing – it is unfair to expect people to be surprised by the news.

Tennessee requires that a defendant in any suit, including divorce, be given adequate notice of the action in order to prepare a defense. Under Tennessee law, notice to a defendant should generally be given personally or by certified mailing; if the address of the defendant cannot be determined, publication in a major newspaper may be sufficient. In broad terms, the court will recognize notice having been given if it was done in a manner reasonably calculated to actually inform the defendant of the proceeding.

If a divorce proceeding is finalized with a divorce decree and there was no actual or constructive notice to the defendant, that defendant has opportunity to challenge the decision and potentially have the decree vacated. While the situation will vary and it seems likely that another divorce suit will be brought if the first is vacated, it is the policy of the State of Tennessee that both parties have opportunity to be heard. For more information about divorce and other family law issues, click here.

Annulment in Tennessee

Tuesday, November 17th, 2009

Annulment is often viewed as another form of marital dissolution, but conceptually it is a little different. A marriage that is annulled is treated legally as if the marriage never occurred, although most jurisdictions permit custody and alimony proceedings. Tennessee provides for custody of the children but does not permit alimony. Historically, annulment also bastardized any child of the marriage because the parents were retroactively never legally married. In Tennessee, there exists statutory language specifically legitimizing those children.

Annulment in the modern era is generally used to declare marriages void or voidable if the marriage is against the public policy. If the grounds for annulment would also be permissible grounds for divorce, it is permissible to sue for divorce instead of annulment and allow the court to divide marital property equitably and to impose alimony. If the court grants an annulment, the marital property is restored as closely as possible to the premarital status.

A divorce proceeding generally is an attempt to maintain the lifestyle of the divorcing parties as fairly as possible and to split the property and income as equitably as possible. An annulment proceeding is used to sever the ties as if the marriage had never occurred. Each has its own grounds and purpose, and choosing the appropriate proceeding is not always as clear-cut as it seems. For more information on annulment or divorce and other family issues, click here.

Parental Rights for Medical Issues

Monday, November 16th, 2009

As reported by The Washington Post, parents in Wisconsin were recently charged after allowing their 11-year-old daughter to die from a treatable disease because the parents’ religion calls for faith healing rather than medical treatment.

Each state treats “faithful negligence” differently, as that article demonstrates. Had the case happened in Tennessee, it would be governed generally by In Re: Hamilton, 657 S.W.2d 425 (Tenn. App. 1983). In that case, a minor child was diagnosed with cancer and the parents refused to provide medical care on religious grounds. Rather than challenging the parents’ right to make medical decisions directly, the State sued for a declaration that the child was “dependent and neglected.”

The “dependent and neglected” language comes from T.C.A. § 37-202(6); Subsection (iv) of that statute states that a child is dependent and neglected “[w]hose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care for such child.” In normal circumstances, the answer here is clear. There exists, however, a right in the parents to make religious decisions for their children; in this case, forcing the parents to submit to medical treatment for their child violates that right.

Of course, the state of Tennessee has a duty as the parens patriae to ensure the welfare of its citizens, and in some cases to make medical decisions when the life of a minor is threatened – even over the objections of the parents. This is not considered an excessive infringement upon the right to practice religion freely, although it is an infringement. The parents of a minor child do retain the right to refuse treatment for maladies that are not life threatening, and even to refuse specific parts of treatment for life-threatening issues – so long as the specific treatment refused will not impede the treatment recommended by the physician.

Constitutional issues are complex and every case is unique. More information about parental rights and other family law issues can be found here.

Validity of Marriage in Tennessee

Friday, November 13th, 2009

It is the policy of the State of Tennessee to promote and foster marriage whenever possible, with the exception of a few situations. The State of Tennessee does not allow incestuous marriage, bigamy, or homosexual marriage. As an aside, Tennessee also prohibits issuance of a marriage license to anyone seemingly “drunk, insane or an imbecile.”

Incestuous marriage is limited by T.C.A. 36-3-101, which prohibits marrying a direct ancestor or descendant (grandparent, parent, child, grandchild, and so on); the direct ancestors of parents (siblings and half-siblings); the lineal descendents of husband or wife (step-children); and the husband or wife or a parent or lineal descendent (step-mother, son/daughter-in-law).

Bigamous marriage is prohibited by T.C.A. 36-3-102, which states that “[a] second marriage cannot be contracted before the dissolution of the first.” The statute does allow dissolution of the first marriage if the other party has been absent for five years and is not known to the remaining spouse to be living. If this condition is met, the first marriage is dissolved and the second marriage is permitted. Under T.C.A. 36-4-128, if a spouse has been absent for two years and there is a credible rumor of that spouse’s death, the remaining spouse may remarry. If the presumed-dead spouse returns, he or she may decide which marriage will remain valid.

Homosexual marriage has been a hot issue nationally in recent years. In Tennessee, T.C.A. 36-3-113 answers by declaring simply that in this state, the only recognized marriage is that between one man and one woman. The law further states that any marriage not between one man and one woman that is validly granted in another state is not recognized in Tennessee.

Generally, a couple interested in entering into an incestuous or homosexual marriage is aware of the matter. A bigamous marriage, however, can arise simply because one party’s prior marriage was never fully dissolved. If you are considering marriage and there is a risk that your marriage will be illegal for any reason, consult an attorney. More information about marriage and other family law issues can be found here.

Grandparents’ Right to Visitation

Thursday, November 12th, 2009

Historically, there was no legally enforceable right permitting the grandparents of a child to visit. In recent years, however, courts have given formal recognition that an important relationship exists between grandparents and grandchildren. By the mid-1990s, every state had enacted a statute allowing for visitation by grandparents. The statutes are by no means uniform, however – in some states, the legislature has declared that grandparents have a right to visitation only if the parents are divorced, deceased, or have their parental relationship terminated by the court. In other states, grandparent visitation is given a wide berth to serve the best interests of the child.

In 2000, the United States Supreme Court heard a case regarding a Washington state statute that allowed any person to petition for visitation rights at any time if visitation were in the best interests of the child. The Court held that the statute was overbroad and infringed upon the rights of the parents to exercise control over the care and custody of a minor child. The Court was careful not to declare all non-parental visitation statutes unconstitutional, but opined that some level of deference must be given to the wishes of the parents because there exists a presumption that the parents will work in the best interests of the child.

In Tennessee, T.C.A. § 36-6-302 allows the grandparents to petition for a right of visitation if the parents of the child no longer have custody and the child has not been adopted by a non-relative, so long as the grandparents are not implicated in the commission of an act against their own child or the child in question that would constitute one of a number of given criminal offenses, generally sexual in nature. If the grandparents have the right to petition under the aforementioned statute, the court will make a determination based on its opinion that “such visitation rights would be in the best interest of the minor child;” and that “the grandparents would adequately protect the child from further abuse or intimidation by the perpetrator or any other family member.”

The standards used by the court are broad and every case is a little different. More information about visitation and other family law issues can be found here.

Limits and Restrictions on Parental Visitation Time

Wednesday, November 11th, 2009

As a general rule, a parent has a right to see his or her child. In certain situations, however, the court may severely limit the visitation in time or manner in order to preserve the physical, mental, moral, or emotional health of the child. In order for a court in Tennessee to go to such lengths, there must be substantial proof of risk to the child that would be alleviated by the limitations.

Most of the time, if a parent is permitted only supervised visitation there is a history of abuse or neglect, abduction, domestic violence in the home, or the child has lived with a mentally ill parent. In some cases, the child may be permitted only supervised visitation even by a parent with no history of abuse if the child is emotionally or mentally uncomfortable being alone with a parent or adult because of prior acts unrelated to the parent.

A parent may be subjected to supervision during visitation if that parent has a history of alcohol or substance abuse that the court determines could make unsupervised visitation unsafe for the child. The court may also require supervision during visitation if there is a credible risk or history of abduction.

The court may order that one parent not be permitted to care for the child overnight, but it is uncommon. Normally, such a request is made because the parent in question is cohabitating with a person of the opposite sex, but has also been made because the parent was homosexual, HIV-positive, or of a different religion than the parent with legal custody. In all cases, the petitioning parent must show that overnight contact with the visiting parent would have a specific adverse impact on the child.

The legal custodian does have the right and power to determine the religious upbringing of the child, but a visiting parent may be permitted to take the child to religious services on a limited basis during visitation.

As is evident from the standards above, courts in Tennessee are hesitant to deny a parent’s constitutional right to visitation. The limits and restrictions impose vary with the unique facts of each case. More information about child custody and other family law issues can be found here.

The Effects of Divorce on Income Tax

Monday, November 9th, 2009

The splitting of marital assets and the granting of custody each has an effect on taxation of the parties – if astutely planned, ceding assets to the spouse who will be in a lower tax bracket can increase the value of the overall marital estate. In the child custody agreement, the parents must decide which is permitted to claim each child as a dependant for tax purposes.

The modern Internal Revenue Code – the dreaded “TAX LAW” – provides specifically that a transfer of property incident to divorce is not subject to tax consequences. The recipient of the property takes it with a basis equal to the adjusted basis of the transferor. For the uninitiated, this basically means that property appraised at $50,000 is probably less valuable than $50,000 in cash; the property was purchased for some amount, which for our purposes can be considered the basis.* If the purchase price was $20,000, upon sale of the property the recipient will pay taxes on the difference – in this case, the recipient will pay taxes on a gain of $30,000. If the recipient had just taken the $50,000 cash instead, there would be no realized gain and no additional taxation.

Alimony is a special case under the IRC. Essentially, it is treated as income for the party receiving it – as you might expect. In order to avoid double taxation, however, it is deductible from the gross income of the party paying alimony. Since the party receiving alimony is normally going to be in a lower tax bracket, this once again has the benefit of saving a little money at tax time.

The IRC provides that the parent with custody more than 50% of the time can claim the child as a dependant unless the divorce decree specifically provides otherwise or if the custodian parent releases the dependency exemption to the other parent in a written decree. Child support, unlike alimony, is not includible in the recipient’s income and deductible in the transferor’s. The idea behind child support is not a replacement of expected income that was lost in the split, but is the amount of income that would have been spent on the child. Since income is taxed before you buy things for your kids, it is reasonable to require the paying parent to include the amount of child support in his or her gross taxable income.
This is, of course, a very broad and simplified explanation of the tax consequences of alimony and child custody/support and should not be relied upon to make major decisions. Speak to an attorney or tax professional if you are concerned with the effects of your divorce on your income taxes. More information about divorce and other family law issues can be found here.

* This is a very simplified explanation. The basis is not always just the purchase price.

Equitably Dividing Marital Property

Friday, November 6th, 2009

At its core, divorce is a simple idea – a married couple separates and become legally and financially independent of each other. Becoming “legally and financially independent” is not necessarily easy to do, however. After determining that a divorce is appropriate in light of the circumstances, the court must determine what property in the marriage is “marital property” and then determine how to most equitably divide that property between the parties.

The simplest method of identifying marital property is to take all property owned by the married couple and removing everything that is separate property. Any separate property is not divided by the court. Tennessee defines separate property as follows:

36-4-121. Distribution of marital property. –

(b) For purposes of this chapter:

(2) “Separate property” means:
(A) All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986, as amended;
(B) Property acquired in exchange for property acquired before the marriage;
(C) Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or descent;
(E) Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
(F) Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

In simpler terms, separate property is anything owned by one party before the marriage, anything directly purchased or acquired through the trade or sell of anything owned by one party before the marriage, and anything specifically given to one party during the marriage. Everything else is marital property.

In Tennessee, the court may assign to each party any marital property or order the sale of any marital property with the proceeds being disbursed as the court deems appropriate and equitable. “Equitable” does not mean “equal,” though – the legislature of Tennessee has set forth factors that should be followed.
36-4-121. Distribution of marital property. –

(c) In making equitable division of marital property, the court shall consider all relevant factors including:

(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.

(d) The court may award the family home and household effects, or the right to live therein and use the household effects for a reasonable period, to either party, but shall give special consideration to a spouse having physical custody of a child or children of the marriage.

Essentially, the court considers the situation that each party was in when the marriage began and the individual estates of each party after the marriage and attempts to be fair. If the marriage lasted only a year, the court will try to reset each party to the lifestyle that he or she enjoyed before the marriage; if the marriage lasted forty years, the court will attempt to ensure that the parties live as similarly as possible after the marriage as they did during the marriage.

Subsection (d), seen above, gives some interesting insight into the equitable distribution.  Child custody determinations are a separate issue from the equitable distribution of marital property, but the results of a custody dispute can factor into the equitable distribution.

The identification of marital property can be more complicated when degrees or professional licenses were earned, or when benefits or retirement accounts accrued, during the marriage. The identification and equitable distribution of property is necessarily unique to the circumstances surrounding the marriage. Further information about divorce and other family law issues can be found here.

Where Can I Get a Divorce?

Friday, November 6th, 2009

As a general rule, family law is subject to state jurisdiction and the federal courts cannot hear family law cases – even if the issue involves citizens of different states, which would normally grant jurisdiction to a federal court. In order to assert jurisdiction to hear a divorce, a court must find that at least one party in the action is domiciled in that state. Because of this, in some cases two states may each have jurisdiction to hear the divorce. In Tennessee, being a resident of Tennessee for six months prior to filing for divorce is almost always sufficient to create jurisdiction.

If the husband and wife live and are domiciled in different states, either of those states can hear the divorce proceedings. Once either state issues a final divorce decree, however, the other state immediately loses jurisdiction because there is no longer a valid marriage to sever. If concurrent divorce cases between the same parties are ongoing in different states, either state may elect to abate its own proceedings in deference to the other, but neither is required to do so nor does one state have “stronger” jurisdiction.

Normally, at least one party to the divorce must meet a state’s residency requirements in order for that state to have jurisdiction over the issue. If both husband and wife participate willingly (not necessarily agreeably) in divorce proceedings in a third state, that state can issue a valid divorce.

As is always true, every situation is different and none of this can be taken to apply without further consultation. While the above rules are generally true, it is best to consult an expert to determine whether a state has appropriate jurisdiction to hear your divorce. Further information about divorce and other family law issues can be found here.